Cooper v. Schoffstall

• Decision Date: 07 September 2006
• Parties: Barbara A. COOPER v. Loretta SCHOFFSTALL Appeal of Perry A. Eagle, M.D.
• Court: Pennsylvania Supreme Court

905 A.2d 482

Barbara A. COOPER v. Loretta SCHOFFSTALL Appeal of Perry A. Eagle, M.D.

Supreme Court of Pennsylvania.

Argued May 16, 2005.

Decided September 7, 2006.

COPYRIGHT MATERIAL OMITTED

Curtis N. Stambaugh, Esq., Susan V. Metcalfe, Esq., David E. Lehman, Esq., Harrisburg, for Perry A. Eagle, M.D.

David B. Dowling, Esq., James J. Jarecki, Esq., Harrisburg, for Barbara A. Cooper.

John Andrew Statler, Esq., Thomas Edward Brenner, Esq., Heather L. Paterno, Esq., Harrisburg, for Loretta Schoffstall.

Scott B. Cooper, Esq., James Richard Ronca, Esq., Harrisburg, for PA Trial Lawyers Association.

Before: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice SAYLOR.¹

This appeal concerns the availability, in a civil case, of discovery of financial records of a non-party expert medical witness to facilitate an inquiry into potential bias.

In December 2001, Barbara A. Cooper commenced a civil action against Loretta Schoffstall arising out of a pedestrian/automobile accident. On the request of Ms. Schoffstall and/or her liability insurer, an independent medical examination of Ms Cooper was performed by Appellant, orthopedic surgeon Perry A. Eagle, M.D.

Apparently in view of Dr. Eagle's known, extensive participation in defense medical examinations in the past, Ms. Cooper sought discovery of certain of his financial records pertaining to these activities, indicating that the effort was intended to probe potential favoritism toward the defense or, more generally, the insurance industry. See generally Pa.R.Civ.P. Nos. 4009.21-4009.27 (prescribing the procedure for obtaining production of documents from a non-party). Over Ms. Schoffstall's opposition, ultimately Ms. Cooper was successful in serving a subpoena upon Dr. Eagle requiring the production of copies of federal form 1099 tax records associated with his performance of services as an independent contractor for calendar years 1999, 2000, and 2001, in undertaking "defense-related reports, examinations and depositions."² Dr. Eagle and Ms. Schoffstall responded with motions seeking protective orders. Dr. Eagle contended, inter alia, that, to the extent that the discovery demand sought information related to payments made by other persons or firms entirely unrelated to the parties, counsel, or the insurer involved in the present case, it exceeded the bounds of permissible discovery as constrained by Zamsky v. Public Parking Auth. of Pittsburgh, 378 Pa. 38, 105 A.2d 335 (1954) (holding, in a condemnation case, that it was error to question the condemning authority's expert witness concerning fees that he had received over a five-year period for services rendered in connection with the acquisition of other parcels), and Mohn v. Hahnemann Med. College & Hosp. of Phila., 357 Pa.Super. 173, 515 A.2d 920 (1986) (holding that a trial court committed reversible error in permitting cross-examination of a defense medical witness regarding his receipt of fees for medicolegal services other than in the litigation under review). See Motion of Perry A. Eagle, M.D. for Protective Order, at 5 ("Discovery into other professional work performed in other matters involving entirely different parties and counsel surely extends into such collateral territory that no reasoned basis exists for permitting the discovery excursions sought by this Plaintiff."). To the degree that the discovery would be permitted, Dr. Eagle sought confidential treatment of his financial information.

At a conference before the common pleas court, per the Honorable Richard A. Lewis, Ms. Cooper's counsel produced a collection of excerpts from the records of a number of prior civil actions in which Dr. Eagle conducted independent medical examinations on the request of the defense and/or testified on behalf of the defendant. These documents were offered to support Ms. Cooper's contention that Dr. Eagle performed abundant defense medical examinations (on the order of 200 to 400 in some recent years), derived substantial income from this work, and issued written reports containing repetitive, predictable, defense-favored observations and conclusions. Judge Lewis denied the motions for protective order, but separately entered an order requiring confidential treatment of financial information to be produced by Dr. Eagle.

Upon the filing by Dr. Eagle of a notice of appeal,³ Judge Lewis issued a memorandum opinion setting forth his reasoning pursuant to Rule of Appellate Procedure 1925(a). See Cooper v. Schoffstall, No. 5932 CV 2001, slip op. at 5-6 (C.P. Dauphin Dec. 15, 2003). As background, he explained that a party generally is entitled to discovery regarding any matter, not privileged, that is relevant to the litigation's subject matter and will substantially aid in advancing claims or defenses. See Pa.R.Civ.P. No. 4003.1. Judge Lewis also indicated, however, that Pennsylvania Rule of Civil Procedure 4003.5 ("Discovery of Expert Testimony. Trial Preparation Material") generally limits the scope of expert discovery to the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for opinions. Nevertheless, he reasoned that a court may permit additional discovery from an expert witness under an express exception to Rule 4003.5's general rule, "[u]pon cause shown." See Pa.R.Civ.P. No. 4003.5(a)(2).

Judge Lewis was persuaded that Ms. Cooper had demonstrated cause to support directed discovery of the limited financial records within the scope of the subpoena, since the documents might be relevant to show bias. In this regard, he relied upon Ms. Cooper's informal submission as demonstrating that Dr. Eagle performs defense medical examinations, prepares written reports, and testifies at court proceedings with "high frequency." Id. at 6. Referencing a passage from Brady v. Ballay, Thornton, Maloney Med. Assoc., Inc., 704 A.2d 1076 (Pa.Super.1997), for the proposition that a party may impeach an expert witness by demonstrating partiality, Judge Lewis reasoned that, "since it is proper to show that an expert witness has a bias in favor of a specific party, it is possible to show that an expert has a bias in favor of a class of parties." Cooper, No. 5932 CV 2001, slip op. at 6. Additionally, he observed that discovery is tethered more closely to the subject matter of the litigation than it is to the question of admissibility at trial. Accord George v. Schirra, 814 A.2d 202, 205 (Pa.Super.2002) ("[T]he relevancy standard during discovery is necessarily broader than it is for admission at trial."). Judge Lewis also was not persuaded by arguments advanced by Dr. Eagle that the discovery that he had approved was burdensome, harassing, and annoying, or would have a chilling effect on doctors' willingness to perform independent medical examinations. Finally, he referenced decisions of other courts that he viewed as being consistent with his approach. See Cooper, No. 5932 CV 2001, slip op. at 4-6 (citing Kogod v. Spangler, No. 1:CV-97-0608, slip op. (M.D.Pa. Dec. 17, 1997), and Clifford v. Leonardi, 99 CV 4236, slip op. (C.P. Lackawanna Oct. 3, 2002)).

Dr. Eagle sought and obtained from Judge Lewis a stay pending appeal relative to enforcement of subpoena.

A three-judge panel of the Superior Court affirmed in a memorandum opinion, finding that Judge Lewis properly exercised his discretion in directing the production of 1099 forms received by Dr. Eagle. See Cooper v. Schoffstall, No. 1164 MDA 2003, slip op., 2004 WL 1969347 (Pa.Super. July 14, 2004). The panel's reasoning, however, departed in material respects from Judge Lewis's approach. In particular, whereas Judge Lewis read Rule 4003.5 as circumscribing all discovery from experts, the panel indicated that Rule 4003.5 addresses only facts and opinions acquired or divulged in anticipation of litigation and is not applicable to inquiries into potential bias on the part of expert witnesses. See id. at 4, 2004 WL 1969347, at *2. Rather, the panel indicated, discovery of information of this nature falls within the broad, general scope of discovery under Rule 4003.1. See id.

Further, the Superior Court panel rejected Dr. Eagle's contention that, under the Zamsky and Mohn decisions, an expert may not be examined at trial concerning payments received from sources other than the parties themselves. In this regard, the Superior Court referenced, inter alia, Spino v. John S. Tilley Ladder Co., 448 Pa.Super. 327, 671 A.2d 726, 738 (1996) ("A party is entitled to cross-examine an expert witness to explore the credibility of the witness and to inquire into any potential bias, interest or relationship which could [a]ffect the testimony of the witness."), aff'd on other grounds, 548 Pa. 286, 696 A.2d 1169 (1997), and Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614 (Pa.Super.1999) (approving the allowance of cross-examination of an asbestos defendant's expert witness concerning the amount of money that he had earned from any asbestos manufacturer over the course of the prior twenty years).⁴ The court also surveyed several decisions from other jurisdictions, including Wrobleski v. Nora de Lara, 353 Md. 509, 727 A.2d 930, 938 (1999) ("[I]t is generally appropriate for a party to inquire whether a witness offered as an expert in a particular field earns a significant portion or amount of income from applying that expertise in a forensic setting."), Metropolitan Property and Cas. Ins. Co. v. Overstreet, 103 S.W.3d 31, 39-40 (Ky.2003) ("A jury could reasonably believe that a physician who derives a substantial percentage of his annual income from [defense medical] examinations, potentially earning hundreds of thousands of dollars every year from such examinations alone, might be tempted to slant his testimony to suit his employer."), Trower v. Jones, 121 Ill.2d 211, 117 Ill.Dec. 136, 520 N.E.2d 297, 300 (1988) (finding it proper to inquire how much an expert medical witness earned annually for...