On May 24, 2013, the Appellate Court of Illinois Fourth Circuit (“Appellate Court”) overturned a medical malpractice verdict in favor of the defendants because the trial court impermissibly allowed the defendants’ lawyer to question the plaintiff’s medical expert in front of the jury about his annual earnings from expert witness services for an eight-year period, from 2003 through 2011, in effort to insinuate that the expert’s opinions were tainted by his financial interests, yet did not permit the plaintiff’s lawyer to ask the expert about the work he had regularly done as an expert for the defense law firm during that same period of time (during closing argument, the defense lawyer described the plaintiff’s expert as a multimillionaire who had been making “these great dollars” by testifying for the plaintiff 90% of the time over the last several years).
The Appellate Court noted that the Illinois Supreme Court had held in previous cases that it is permissible to cross-examine an expert witness about the amount and percentage of income that he generates from his work as an expert witness, the frequency with which he testifies as an expert, and the frequency with which he testifies for a particular side, in order to expose any bias, partisanship, or financial interest that may taint his testimony and opinions.
With the Illinois Supreme Court’s guidance in mind, the Appellate Court stated in this case, “we conclude that permitting inquiry into the amount of income an expert witness has earned from expert services during the two-year period immediately preceding the trial would, under ordinary circumstances, serve the legitimate purposes for this type of cross-examination … we find that the trial court’s decision to permit the defense to inquire into [the expert’s] earnings from expert testimony for the eight-year period prior to the trial was a clear abuse of its discretion. The record shows that the legitimate bounds of cross-examination were trampled and that the plaintiff’s case was so unfairly prejudiced that a new trial is required … In this case, we believe that the bias or financial interests of each party’s experts can be adequately explored and exposed, without undue harassment or unnecessary invasion of privacy, if each party is permitted to question its opponents’ experts about their annual earnings from expert services for the two-year period preceding the new trial date.”
The Appellate Court further held, “The trial court abused its discretion and compounded the prejudice when it denied the plaintiff an opportunity to rebut the defendants’ attacks with evidence showing that the defendants’ attorneys had retained [the expert] as an expert witness in several cases in the past. When one party attacks the credibility of an expert in order to show that his testimony is tainted by bias, partisanship, or financial interest, the party who presented that witness has the right to rehabilitate the expert with evidence showing that the expert exercises independent judgment … Evidence that the opposing party’s attorney also employed the witness as an expert tends to rehabilitate the expert.”
Based on the trial court’s error in this regard, as well as other errors committed by the trial court, which the Appellate Court found to be prejudicial to the plaintiff, the Appellate Court reversed the jury’s verdict and remanded the case for a new trial.
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