Foran Glennon Palandech Ponzi & Rudloff

December 2013

Proceed with Caution when Cross-Examining the Professional Expert: Reversible Error to Allow Inquiry into Fees.

By Matt Hess

Veredictum.

The Latin word, which means “to say the truth,” is where we get the word “verdict.”  A trial is a truth-seeking process, and a jury returns a “verdict” at the conclusion, fulfilling its role in determining the truth.

This is not an easy task, especially in cases involving complex subject matter.  Expert testimony is often necessary to assist a jury in understanding the facts of a case.  In medical malpractice cases in particular, expert testimony is necessary to establish the standard of care applicable to a health care professional.

The necessity of expert testimony has led to the proliferation of a cottage industry of professional expert witnesses and expert witness referral services.  These so-called “experts” possess the necessary qualifications to testify in a courtroom, but may often be more inclined to advocate for a particular party rather than aiding a jury in determining the truth.

Illinois has long recognized that the principal safeguard against errant expert testimony is effective cross-examination.  This includes the opportunity to probe the witness’ bias, partisanship and financial interest.  For this reason, the Illinois Supreme Court held in Trower v. Jones, 121 Ill.2d 211 (1988) that an attorney representing a defendant physician in a malpractice case was entitled to cross-examine the plaintiff’s expert regarding the amount of income he derived annually from testifying as an expert, and the frequency with which he testified on behalf of plaintiffs.

The court cited commentary that an expert’s effective status as a professional witness, as opposed to a practitioner whose involvement in the lawsuit is merely incidental to his profession, would likely bear on the expert’s credibility.  The court also recognized that experts are afforded a greater deal of latitude in formulating and rendering their opinions than they had been in the past, and this has heightened the importance of cross-examination. It therefore concluded that the trial court did not err by allowing defense counsel to cross-examine the plaintiff’s expert regarding the amount of money he earned from testifying for the two years preceding the trial.

Since Trower was decided, trial courts in Illinois have routinely afforded attorneys wide latitude in cross-examining experts regarding their financial bias, recognizing that such inquiry was necessary to expose a witness as a professional expert.  However, in the recent case of Pontiac National Bank v. Vales, 2013 Ill. App. 111088 (4th Dist. 2013), the Fourth District Appellate Court found that a trial court committed reversible error in allowing defense counsel to cross-examine the plaintiff’s expert regarding the amount of income he earned from testifying for more than the two years preceding the trial.

The plaintiff’s expert in that case met the criteria of a professional witness and was characterized by defense counsel in closing argument as “a multimillionaire” who has been testifying for the plaintiff “90% of the time over the last several years.”  Nonetheless, the court concluded that allowing inquiry into the income earned from testifying for more than two years prior to trial constituted harassment and invaded the expert’s legitimate privacy.  The court stated that cross-examination is not a free-for-all, and that “such unbridled cross-examination discourages reputable professionals from testifying during trial.”

Acknowledging that the court in Trower did not set an outside limit on the number of years of earnings that may be discussed, the appellate court took it upon itself to do so and held that allowing inquiry into the amount of income earned from testifying for the two-year period immediately preceding trial would, under ordinary circumstances, serve the legitimate purposes for this type of cross-examination.

Although it remains to be seen whether this issue will be addressed by another court in a different district, practitioners in Illinois must now be mindful that they will be inviting reversible error by aggressively cross-examining the professional expert witness.