How to effectively demonstrate during cross examination that the defense expert is a prostitute

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In 2011, I changed my practice dramatically.  I became a partner in a personal injury law firm.  My prior legal experience consisted primarily of family law cases with some criminal law cases sprinkled in here and there.  I knew that many of the skills I had developed as a family law practitioner would translate well into personal injury work.  However, I was pleasantly surprised by one skill in particular that helped a great deal: tracking income and looking at tax records. Specifically, tax records of defense experts.

A successful cross-examination is about telling a true story about your case. In a personal injury case, when defense experts testify, they usually pretend to be medical treatment provider, but the truth is, they are hired guns. The goal of the cross is to show how a defense expert earns his or her living.  The tax records expose the truth and the truth is that their opinions are bought.

Here is a step-by-step description of what to look for on a defense expert’s 1099s, what questions to ask, and my recent trial experience.

Step 1: I obtained a copy of the defense expert’s 1099s, going back four years.  This can be done with either a subpoena duces tecum or a stipulated discovery order.  In my case, I used both to obtain the documents. 

A 1099 is an IRS form that is used to disclose income, interest, rents, royalties, sales, dividends, etc. There are many types of 1099s but a defense expert will most likely be disclosing 1099-misc.  A 1099-misc is for rents, royalties, and non-employee compensation.  Go to this link to see an example of what a generic 1099-misc looks like.

Step 2: When you take the defense expert’s deposition, make sure you ask them how much time they spend working as a medical treatment provider and how much time they spend as a paid witness.  Ask the defense expert what percent of their practice is spent providing medical treatment to actual patients.  Find out who pays them to treat medical patients.  Ask the same questions for independent contractor work.  Make sure you know all names and businesses they may be working under, and who else they might be working with.  In my case, the defense expert had three business entities that he received payments through, but in each he worked alone. 

Step 3: After you have deposed the expert and collected his income information, take the time to look at what you have.  In my case, the income information came on a zip-drive, so I didn’t know what I had until after the deposition ended and I went back to my office to print-out the produced material.  After printing out 364 pages of 1099s, I knew I had a goldmine. 

Not all 1099s look alike and often two to four will fit on a page.  The key characteristic is to look for the date, the name of the payer, the recipient, the box number with correlating income information.  Cross-out duplicates on a page.  Make sure that you only have one 1099 per page so make additional copies if multiple payers are on a page and cross-out the extras.  You want to work with just one payer per page.

Step 4: Organize the 1099s by Box numbers.  Take a look at the IRS definitions for each Box number.  Here is a site that explains them: http://www.irs.gov/pub/irs-pdf/i1099msc.pdf.   For my purposes, I looked for money listed in Boxes 6 and 7.  Put all the Box 6’s together and all of the Box 7’s together.  Some payers will pay a defense expert for both medical treatment (Box 6) and as an expert witness (record reviewer, IME exams, or as a hired gun (Box 7). Those with more than one Box are kept together.  If you have time, make sure that the highest dollar amount is on the top of the pile and the lowest dollar amount is on the bottom. 

Step 5: Add the money up.  ALL OF IT! Get a total for each year.  Then add each Box up separately. Have someone competent check your math.  Make sure you both come up with the same numbers.  When you have those numbers you can figure out the percentages. 

Here is an example of what I found for my expert for 2012.

BOX # TOTAL AMOUNT PERCENTAGE OF TOTAL INCOME
1 - Rents $2,110.00 .15%
3 - Other Income $162,064.72 11.19%
5 - Fishing Boat Proceeds $2,445.00 .17%
6 - Medical & Health Care Payments $425,919.00 29.4%
7 - Nonemployee Compensation $855,623.54 59.06%
14 - Gross Proceeds Paid to an Attorney $700.00 .05%
TOTALS $1,448,862.26 100%

Step 6: Pull out specific 1099s you will most likely use at trial.  For instance, in my case the expert was hired by a company called MES Solutions to perform a CR35 exam.  I looked for the MES Solutions 1099.  I found it and indeed, MES paid $431,373.32 in Box 7.  This amount is 30% of his total and practically half of his Box 7 income.  I pulled the 1099s for the insurance companies who were defending the case (Allstate and State Farm).   I also pulled the 1099s for the hospital and surgery center the doctor had bragged about working for. 

Step 7: Get your cross-examination ready.  When the defense expert brags that “70% of his practice is for treating patients,” or that “he works as a surgeon for a local hospital,” be prepared to show the truth.  Pull out the huge pile of 1099s.  Most people, and by this I mean jurors, only get one or two 1099s at the most.  Many people just get one W-2.  Let the expert know that you did the math.  Ask the defense expert how much he earned last year gross.  Most people know how much they earned the previous year.  If the defense expert hedges, then ask if he can guess within $100,000.00.  If he still can’t say, then ask, “when I add up your income from these 1099s my total is $1,448,862.26, do you disagree with that figure?”  Write in big print on a board for all to see the totals.  “Doctor, you would agree that in 2012, you were paid $855,623.54 for consulting work?” The defense expert may say, “I am often paid, for instance by Allstate, for both consulting work and treatment.”  At this point, pull out the Allstate 1099.  Mark it into evidence.  Have the defense expert identify the category of that Box 6.  Have the expert look at Box 6.   “Doctor, you would agree with me that Box 6 is for Medical and Health Payments?”  If the defense expert balks that he doesn’t know anything about 1099s, make sure they read the title on the box as it says, “Medical and Health Care Payments.”  If the defense expert plays dumb then go over the IRS definition of Box 6.

Here is the applicable portion of the definition from the IRS instructions for 1099 misc.:

Box 6. Medical and Health Care Payments

Enter payments of $600 or more made in the course of your trade or business to each physician or other supplier or provider of medical or health care services. Include payments made by medical and health care insurers under health, accident, and sickness insurance programs.

Again, make sure the defense expert agrees with you.  In my case, Allstate listed $10,400.00 for Box 6.  Have the defense expert identity Box 7.  Box 7 is for non-employee compensation. Ask, “Doctor you would agree with me that Box 7 represents money you were paid for consulting work?”

In my case, Allstate listed $52,175.00 in Box 7.  So when the defense expert states that some of the 1099s combine income for both treatment and consulting work the truth is that they don’t. Tell the defense expert you added up all of his Box 6 income and then ask the defense expert if they know what that amount is.  Write that figure on the board and then ask the defense expert to agree that this amount represents an actual percentage of his income.  In my case, the truth is that the defense expert earned 29.4% of his income from treating patients.  Now let the defense expert know you added up all of the income in Box 7.  In my case the defense expert agreed that 59% of his income comes from consulting work.  If the defense expert mentions any employer be ready to find that 1099.  In my case, I pulled out the 1099s from the two hospitals the defense expert stated he performed surgery services for and the amounts were very small compared to the true income earned as a defense expert.

Step 8: Have fun.  I’m looking forward to crossing paths again with the expert.  I am eager to see how he did for income in 2013. 

When the truth is shown to the jury, that a defense expert’s opinion has been bought and paid for, the jury will clearly understand the value and reliability of the opinion is questionable.

Topics:  Cross Examination, Expert Witness, Tax Records

Published In: Civil Procedure Updates, Personal Injury Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Brett Murphy PLLC | Attorney Advertising

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