One of the most effective and damaging methods of cross examination used against an expert witness has now been severely curtailed by the Florida Supreme Court in the case of Elkins v. Syken, 21 F.L.W. S159 (Fla. 1996). Trial attorneys are no longer able to obtain unlimited financial information from expert witnesses to determine how much they have made as experts. Id. Before the Elkins v. Syken case, trial attorneys were allowed to discover how much money expert witnesses made as consultants. This information was used as cross-examination material to show that those experts may be biased or interested in the results of the litigation. It was common for trial attorneys to seek income tax records and similar financial documents to prove the amounts that the experts earned as “hired guns.” In Elkins, the Supreme Court opined that the disclosure of personal financial information by expert witnesses was unnecessarily burdensome and intrusive. Id. at S161. The Supreme Court also stated that the entire process had a chilling effect on the availability of expert witnesses, since this type of discovery could discourage qualified witnesses from serving as expert witnesses in litigation. Id. As a result, expert witnesses no longer have to disclose the total income earned as consultants. They no longer have to provide income tax records or detailed financial information or individual patient medical records in complying with discovery requests. Instead, experts need only generally estimate the number of patients seen, consultations held, and evaluations performed for litigation purposes. Id. at S160-61.
The Florida Supreme Court also set out discovery guidelines that will limit the scope of discovery as defined in Rule 1.280, Fla. R. Civ. Pro. The guidelines state that experts may be: (1) Deposed verbally or in writing. Id. at S160; (2) Asked about the pending case in terms of employment and the specific amount of compensation in that case. Id.; (3) Asked what expert work he or she generally does, and whether it is primarily for plaintiffs or defendants. Id.; (4) Asked to give an approximation of the portion of professional time spent on service as an expert. Experts need not state how much money they earn as experts or provide total annual incomes. What is required is a fair estimate of some reasonable and truthful component of the work such as hours expended or percentage of income earned from working as experts, or the approximate number of evaluations or examinations that they perform in one year. Id.; and (5) Required to identify each case in which they have testified for a reasonable period of time defined as about three years. Id. at S160-61. Contrary to the pre-Elkins trend, experts’ specific business records, files, and income tax records will generally no longer be discoverable, except under the most unusual or compelling circumstances. Id. at S161.
Although the Elkins case severely limits a trial attorney’s ability to expose the potential bias of an expert based on the specific amounts of consultation money earned by that expert in the past, there are still several effective methods that may be pursued that will prove to be effective in demonstrating an expert’s potential bias. Consider finding the number of cases that the expert has testified in the past, the names of those cases, the lawyers representing the parties for which the experts testified and the type, and whether the expert testified mostly for plaintiffs or defendants in the past. If the questions are properly combined and asked in a leading fashion, and in a logical sequence, the jury should be left with a complete understanding of the expert’s potential bias in a case.