Expert can be asked about fees from carrier

Even though he was hired by a lawyer and not an insurance company, a doctor can be cross-examined about his financial relationship with the carrier, the Supreme Court of Virginia has ruled.

That the lawyer made the hire is “a distinction without a difference,” the court found. The doctor had been paid nearly $800,000 by the carrier, State Farm, over a seven-year period.

The case is Graves v. Shoemaker (VLW 020-6-075). Justice William C. Mims wrote the unanimous opinion for the court.

In 2015, a woman named Deborah Graves was rear-ended by Samantha Shoemaker while driving in Charlottesville. In the following months, Graves experienced neck, hip and back pain, as well as depression and anxiety. Her medical and therapy bills topped $26,000.

She brought suit against Shoemaker in Albemarle County Circuit Court, seeking $150,000.

Shoemaker’s insurer, State Farm, hired Charlottesville lawyer John Cattano, who in turn hired Dr. William Andrews, “an orthopedic surgeon who specializes in medicolegal work” as the defense expert.

Andrews opined the car wreck caused only minor injuries and most of her treatment would not have been medically necessary or reasonable.

Andrews sent an initial bill to Cattano for $3,362, which was later paid by State Farm.

At his deposition, Andrews acknowledged that he had been hired by Cattano “30 to 35 times” over the past 10 to 12 years and on only one occasion had he testified in court. He also said that State Farm had paid him $793,198 for testimony on behalf of their insureds from 2012 to 2016.

He claimed that he was not aware that Shoemaker was a State Farm insured.

Shoemaker admitted liability and the trial proceeded on the issue of damages only.

Graves’ lawyer, Fletcher W. Harkrader III, moved pre-trial for permission to introduce the information about the doctor’s relationship with Cattano’s office and with State Farm. The judge allowed a tally of the times that Cattano had hired the doctor, but he barred the testimony about how much State Farm had paid Andrews over the years.

At the trial, the jury gave Graves $3,000 plus interest. She appealed on the exclusion of the State Farm payments.

The trial judge had found that there was no “direct relationship” between State Farm and Andrews.

But the high court said excluding the information was an abuse of discretion.

The court, in Lombard v. Rohrbaugh, 262 Va. 484 (2001), previously reviewed the cross-examination of experts about their relationships with insurance companies. That case found if there is a “substantial relationship between the witness and a particular insurance carrier that has a financial interest in the outcome of the case,” the examination may proceed.

The expert there was hired directly by the insurer, not defense counsel. But Mims wrote that “this is a distinction without a difference.”

Requiring a “direct relationship” was an error. Payment of a “considerable sum of money to an expert for his prior testimony favorable to its insureds can be enough” to establish a substantial relationship, the justice said.

The issue of “Dr. Andrews’ bias was a consideration for the jury,” Mims said. Andrews testified he did not know State Farm insured Shoemaker, but Mims said, “The plausibility of that assertion rested on his credibility, which the jury was entitled to consider given his experience working with insurers and defense attorneys.”

The court vacated the judgment and remanded the case for further proceedings.