While seldom used, Pennsylvania allows parties to issue Expert Interrogatories during discovery under certain parameters. Unlike the federal courts, Pennsylvania does not allow a party to depose experts prior to trial. Expert Interrogatories thus allow the sole avenue for a party to learn certain bias-related information from an opposing expert prior to trial, but may only be issued to an opposing party’s expert during pre-trial discovery if the standards and limitations below are met.
Pursuant to Pa.R.C.P. 4003.5(a)(2), “a party may only require opposing experts to state the facts and opinions to which they are expected to testify and to summarize the grounds for each such opinion, unless cause is shown and a court order acquired for the additional discovery.” Cooper v. Schoffstall, 588 Pa. 505 (Pa. 2006).
The standard to show cause for Expert Interrogatories is that the expert must be a “professional witness.” Id. The proponent wanting the discovery must establish cause by providing a threshold showing “potential favoritism of a non-party expert witness retained for trial preparation” which can be shown by bias and “a significant pattern of compensation that would support a reasonable inference that the witness might color, shade, or slant his testimony in light of the substantial financial incentives.” Id. Pennsylvania courts that have defined potential bias in broad terms. Grutski v. Kline, 43 A.2d 142, 144 (Pa. 1945).
To obtain Expert Interrogatories, the proponent must file a motion for leave of Court showing cause that the opposing party’s expert is a professional witness. Pa.R.C.P. 4004. It is within the trial court’s discretion whether to grant this motion. Cooper, 588 Pa. at 495. If granted, the proponent may seek additional supplemental discovery of the opposing party’s expert then the proponent can try to obtain a leave of court order for more discovery by showing further cause that the expert had been evasive or untruthful in their initial responses to the Interrogatories. Id.
If an expert is found to be a professional witness, then the proponent before trial via Interrogatories can ask the expert questions about the expert’s work and about topics about 1) the approximate amount of compensation received and expected in the pending case; 2) the character of the witnesses’ litigation-related activities, and, in particular, the approximate percentage devoted to specific types of litigation and/or work on behalf of a particular litigant, class of litigant, attorney, and/or attorney organization; 3) the number of examinations, investigations, or inquiries performed in a given year, for up to the past three years; 4) the number of instances in which the witness has provided testimony within the same period; 5) the approximate portion of the witness’s overall professional work devoted to litigation-related services; and 6) the approximate amount of income each year, for up to the past three years, garnered from the performance of such services.”Cooper, 588 Pa. at 526. The information is limited to the past three (3) years. Id. Parties can inquire into any potential bias, interest or relationship of the witness that could affect their testimony. Spino v. John S. Tilley Ladder Co., 671 A.2d 726, 738 (Pa. Super. 1996). Moreover, parties can ask about an expert’s fees for testifying in a case. Commonwealth v. Simmons, 65 A.2d 353 (Pa. 1948); Grutski v. Kline, 43 A.2d 142 (Pa. 1945); Reed v. Philadelphia Transit Co., 90 A.2d 371, 33 A.L.R. 1166 (Pa. Super. 1952). Parties can also ask about financial incentives. Flenke v. Huntington, 111 A.3d 1197, 1200 (Pa. Super. 2015). The Expert Interrogatories must be limited to these fields rather than being an “unfettered production … where such documentation contains information unrelated to the case.” Guffey v. Kyriazis, 2014 WL 8853289 (Ct. Com. Pl. Lackawanna County 2014).
For additional questions, please contact Alyssa Klier, Esq. and/or Glen Shikunov, Esq.
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