Wilson v. Stilwill

Levin, J.

(dissenting). Plaintiffs’ expert witness at trial was Dr. W. O. Badgley, an orthopedic surgeon who had long been on the staff at Sparrow Hospital.

On cross-examination, Badgley testified that he derived 40% of his income from disability evaluations and 60% from the care of patients. Defense counsel inquired whether Badgley was "frequently referred patients such as Mr. Wilson by attorneys such as Mr. Mackay”, and, when Badgley responded that he had not been involved "in more than two or three cases in which there was suspected malpractice”, asked whether he had been involved in a number of specific cases, including two handled by the same plaintiffs’ attorney. Plaintiffs’ relevancy objection was at first overruled but was ultimately sustained.

During closing argument, the lawyer for defendant Dr. Stilwill said:

*613"In an attempt, ladies and gentlemen, to find out the most probable cause of Mr. Wilson’s injury we went * * * to the University of Michigan and we went to Henry Ford Hospital. * * * We did not go to professional witnesses; we went to professional physicians qualified better than any other man [sic] in the State of Michigan, to the best of our knowledge, to determine the answers to the questions.” (Emphasis supplied.)

Following oral argument, plaintiffs’ lawyer requested a curative instruction. The judge denied the request, saying that although he had "discerned that that [reference to Dr. Badgley] was the implication” of the remarks, it was "not certain that they wouldn’t have constituted fair comment under all of the circumstances”.

I

The Court of Appeals said:

"In the present case no error was committed below by the elicitation from plaintiffs’ expert testimony concerning his involvement in other malpractice cases. This testimony was probative on the question of weight to be given by the trier of fact.”

The Court of Appeals relied on Treece v Greyhound Bus Co, 63 Mich App 63, 66; 234 NW2d 404 (1975), where the panel said without analysis that several questions posed to a physician witness about his relationship with plaintiffs’ counsel, including the number of times he had testified for clients of the attorney, "were probative of the weight which should have been given to the doctor’s testimony by the jury”.

Limited research has disclosed disagreement among the few authorities which have addressed the propriety of cross-examining a physician called *614as an expert witness about his appearance as a witness in other cases. The practice was approved "as tending to show bias and interest and thereby affecting the credibility of the witness” in Lammert v Wells, 321 Mo 952, 954; 13 SW2d 547, 548 (1929). See, also, Ager v Baltimore Transit Co, 213 Md 414; 132 A2d 469 (1957), Russell v Young, 452 SW2d 434 (Tex, 1970), and Barrios v Davis, 415 SW2d 714 (Tex Civ App, 1967). In Murero v Reinhart Lumber Co, 85 Cal App 385; 259 P 494 (1927), the court declared that evidence that a physician had frequently been called as an expert witness did not show or tend to show "his interest” but went on to observe that such evidence would have fortified the qualifications of the witness had the trial court not sustained an objection to the cross-examination. In McNenar v New York, C & S L R Co, 20 FRD 598 (WD Pa, 1957), the court excused a doctor from answering interrogatories which would have required him to state the number of cases in which he had made medical examinations for the purpose of testifying as a medical expert for other litigants represented either by McNenar’s attorney or by other counsel, and the number of such cases in which he had given testimony. The court deemed such inquiry "far too broad and extensive, productive of collateral issues and obstructing the expeditious administration of justice”.1

All the foregoing cases were personal injury actions, not medical malpractice suits.

This Court recognized "the practical difficulty in *615obtaining experts to testify in malpractice cases” in deciding that authoritative medical texts could be used to cross-examine expert witnesses. Jones v Bloom, 388 Mich 98, 117; 200 NW2d 196 (1972).

An expert’s history as witness, as distinguished from his professional experience or credentials, is not probative of interest or bias. Even if such history has a modicum of probative value on the issue of credibility, inquiries of this sort should ordinarily be prohibited because of their potential for distracting the jury or creating collateral issues, as this case demonstrates.

The significance of evidence that an expert witness has testified in other cases is particularly diminished where the witness testifies to the malpractice of a fellow physician. We should not permit defendants’ counsel to turn the practical difficulties that plaintiffs’ counsel encounter in obtaining expert testimony to establish a violation of the standard of care in medical malpractice cases —the understandable reluctance of physicians to testify against other physicians — to the defendants’ advantage by questioning intended to insinuate that those physicians who do testify are habitual accusers motivated by avarice or vengeance.

The interaction of the rule requiring that a violation of the standard of care be proved by expert testimony, the reluctance of physicians to testify against other physicians, and the court’s decision in the instant case produces a dilemma for injured plaintiffs. They may not be able to prove their cases without expert medical testimony; yet, if they succeed in obtaining testimony from one or more of the limited number of physicians willing to give such testimony, they face the prospect of having their witnesses belittled and their cases undermined.

*616Fairness to physicians requires the rule requiring expert testimony, but fairness to injured persons requires that the plaintiffs expert witnesses not be impugned simply because they have testified for plaintiffs in other cases.

It is sufficient that the defendant be permitted to show that the witness has received a fee for his services. .

II

Defense counsel’s suggestion that the plaintiffs had employed "professional witnesses” magnified the error introduced by his earlier line of questioning. In Kern v St Luke’s Hospital Ass’n of Saginaw, 404 Mich 339; 273 NW2d 75 (1978), this Court recognized that a defense strategy of portraying the physicians testifying for plaintiffs as "professional experts” whose testimony had been purchased was so prejudicial as to require a new trial. While counsel’s injection of a false issue in this case was not so egregious or pervasive, we cannot say with assurance that the combination of questioning and argument did not deny plaintiffs a fair trial.

Even if it is fair comment to label one who admittedly derives all or the great bulk of his income from giving testimony and the attendant preparation a "professional witness”, Dr. Badgley, who testified that he derived 60% of his income from caring for patients, cannot fairly be characterized as a "professional witness”.

III

All relevant evidence is not perforce admissible.

The Rules of Evidence provide that relevant *617evidence may be excluded if its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury” (MRE 403). In the application of that principle a trial judge may exclude relevant evidence, and as a matter of discretion the judge who tried this case could have barred the objected-to inquiry in this case.

We would, for the reasons stated, exclude the inquiry in every case absent a showing, out of the presence of the jury, by the defendant that the integrity of the plaintiff’s expert witness can be legitimately challenged on some basis other than his history of testifying for plaintiffs.

The Rules of Evidence reflect a number of instances where, in the particular application of the general principle set forth in MRE 403, relevant evidence is excluded as a matter of law so as not to prejudice the defense, e.g., the rules excluding evidence of subsequent remedial measures (MRE 407), of compromise and offers to compromise (MRE 408), of payment of medical and similar expenses (MRE 409), and of liability insurance (MRE 411).

Adoption of a rule generally barring inquiry regarding the number of times a witness has testified for other plaintiffs would be to do no more for the plaintiff in a medical malpractice case than has been done for defendants generally in the situations referred to where relevant evidence has been barred to protect the rights of defendants to a fair trial.

To allow the defendant to challenge a plaintiff’s expert witness simply because he testifies for plaintiffs with some frequency is to permit the defendant to exploit unfairly the rule requiring, for defendant’s protection, expert testimony, and *618the reluctance of physicians to testify against another member of their profession.

If the objected-to inquiry is permissible, then plaintiffs should be able to respond with expert testimony and other evidence tending to show the difficulty in obtaining expert medical testimony on behalf of a plaintiff. The defendant could of course respond. A collateral issue, to be sure, but if the defendant can charge the plaintiff with offering manufactured testimony, plaintiff should be able to show why it is that a physician willing to testify for a plaintiff may be called upon to do so with some frequency.

We would reverse and remand for a new trial.

Kavanagh and Williams, JJ., concurred with Levin, J.

Compare Zamsky v Pittsburgh Public Parking Authority, 378 Pa 38; 105 A2d 335 (1954), holding that cross-examination, in condemnation proceedings, as to fees condemner’s expert witness had received for services rendered in the acquisition of other property and as to expert’s estimated future compensation from condemner, was prejudicial error.