Day on Torts
The medical community in Tennessee doesn’t want judges and juries to know how much money they make from testifying as expert witnesses. So they have persuaded two members of the General Assembly to introduce legislation that applies not only to medical doctors but to every type of expert witness.
This is the substance of HB 1466:
Except for good cause shown and pursuant to court order, a party may not discover a statement of compensation that is paid to an expert witness for any study and testimony in a case.
Set aside the historical notion that the judicial branch of government is normally tasked with the responsibility of determining what evidence should be admitted in the courtroom and discovered by the litigants during the pre-litigation process. Think instead of the public policy implications here: it allows one side or another to buy testimony and impede the opposing party’s ability to cross-examine for bias. It someone wants to make a living testifying for a car manufacturer or a doctor or for plaintiffs in asbestos cases so be it – but the fact-finder should be permitted to know that is exactly what they do and how much they earn from such endeavors.
Tennessee’s civil justice system already has a mechanism in place for protecting experts from unreasonable discovery of personal financial affairs. This bill guts a process that works, and replaces it with a plan that encourages litigants to pay whatever they want to get the testimony they need, leaving the judge and jury in the dark about what any rational person would recognize is a relevant point: what was paid to obtain the testimony.
At best, the legislation reflects a misunderstanding of how the civil justice system works. At worst, it reflects a desire to protect those who have the resources to buy whatever testimony they need to win with no fear of being exposed.
One last point. Note that the legislation also applies to criminal cases. Thus, wealthy defendants will get even more power to create a reasonable doubt because the jury will not be permitted to know what they paid to their expert witnesses on DNA testing, eyewitness identification issues, etc.