On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4763-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2009
Before Judges Fisher and Espinosa.
This matter comes before us by way of the motion of Central Orthopedic Associates and Dr. Ronald Gerson (hereafter collectively "Dr. Gerson"), defendants' medical expert in this matter, for leave to appeal a trial court order entered on September 25, 2009, which denied a motion for a protective order precluding inquiry into financial records. We grant leave to appeal and, pursuant to Rule 2:11-2, exercise our authority to rule on the merits based upon the motion papers. After careful consideration, we vacate the order under review and remand for further proceedings.
The record reveals some early procedural confusion. In June 2008, the judge heard Dr. Gerson's motion to quash a subpoena that demanded production of financial information regarding his income. In his oral decision of June 20, 2008, the judge concluded that plaintiff was entitled to the information for the years 2005, 2006 and 2007; he declined to indicate whether such information would be admissible at trial. However, the order entered by the judge granted both the motion to quash the subpoena and the motion for a protective order.
The discrepancy between the judge's oral decision of June 20, 2008, and his order of the same date, came to light when plaintiff moved a year later for an order holding Dr. Gerson in contempt for failing to turn over the financial records sought by the earlier subpoena. Dr. Gerson again moved for a protective order.
On the return date of these motions, the judge concluded that the recently-enacted Rule 1:38 requires public access to the materials and, for that reason, compelled the denial of Dr. Gerson's motion for a protective order. We find the judge's interpretation of Rule 1:38 to be mistaken. Records that are submitted for a judge's in camera inspection do not automatically lose their cloak of confidentiality. Rule 1:38-2(b)(2) expressly states that "unfiled discovery materials" are not "court records" and, thus, do not fall within the general category of documents open to inspection and copying by way of Rule 1:38-1. Records submitted to a judge for an in camera inspection are "unfiled discovery materials." In addition, even were it otherwise, Rule 1:38-3(f)(4) expressly indicates that courts remain empowered to enter protective orders pursuant to Rule 4:10-3 -- the precise relief Dr. Gerson sought. Accordingly, we conclude that Rule 1:38 is no obstacle to a court's traditional analysis as to whether information sought in discovery is relevant or likely to lead to the discovery of relevant evidence and, if so, whether a consideration of the responding party's privacy rights warrants protection from the inquiry.
In considering the scope of a party's inquiry into an expert's income, we recognize that a party may discover and prove an expert's "positional bias." A party may seek discovery and offer evidence at trial to show that an expert is a "professional witness" or a "hired gun" who mostly offers opinions that largely seek to vindicate a particular position. By the same token, we reject the notion that a licensed professional surrenders all rights of privacy upon providing an expert opinion to a litigant for monetary consideration. The discovery of personal financial information of nonparties is "not unbridled and not unlimited." Berrie v. Berrie, 188 N.J. Super. 274, 282 (Ch. Div. 1983). Where the line should be drawn between these competing interests is dependent upon the particular circumstances of each given case. See, e.g., Primm v. Isaac, 127 S.W.3d 630, 634-35 (Ky. 2004). Because the judge here did not analyze the parties' interests in determining to what extent, if any, plaintiff should be entitled to the information in question, we remand for further proceedings.
In providing guidance for the trial judge's exercise of discretion in this matter, we initially observe that the point of inquiry does not focus solely on the amount of the expert's income.*fn1 Indeed, positional bias is not ordinarily revealed by the amount paid to the expert for his time and effort in the case but by any tendency the expert may have to provide his services for only one type of litigant, i.e., that the expert is out for hire only to plaintiffs or only to defendants. If, for example, an expert was deposed or otherwise provided information during discovery that revealed he only represents or predominantly represents defendants, law firms that mostly do defense work or insurance companies, then plaintiff would already have sufficient information from which to argue at trial that the expert has a bias in favor of defendants and, for that reason, his opinion would not be worthy of belief. As a result, before compelling the turnover of a nonparty's sensitive financial information, a judge should attempt to first determine whether a party's desire to prove positional bias may be supported or bolstered by less intrusive discovery.
If an expert were to deny he or she predominantly or exclusively represents one side or one particular client -- and if the opponent could make a preliminary showing that this assertion is not accurate or subject to legitimate doubt -- then it might become appropriate to allow more intrusive discovery into the expert's sources of income. In authorizing such an inquiry, the judge should remain mindful that the amount of income is not always relevant and may remain confidential while still providing the adverse party with the right to obtain ample information about positional bias. In other words, it is not necessarily the amount but the extent to which the expert's income is derived from providing expert opinions and testimony that is relevant. For example, what bias is shown by the fact that a particular expert earned $200,000 per year in providing litigation services for defendants unless there is an understanding of the expert's income for that year? If the expert's income for that year was $210,000, then it would be of interest to know that offering opinions for defendants in personal injury cases provides the great bulk of the expert's income. But if that same expert had a yearly income of $400,000 and the other $200,000 was earned as a result of providing litigation services for plaintiffs then no positional bias would be shown and the expert's income would be wholly irrelevant. In short, it is the percentage of income derived from a particular source that is relevant in showing positional bias, not necessarily the particular amount. In such matters, the interests of justice are served by the judge's in camera inspection of reliable information regarding the expert's income for one or more given years in or about the time in question.
From that information, the judge may ascertain the extent to which the expert may be viewed as reliant on a particular type of client for his livelihood; or, the judge may learn that the expert's various sources of income would suggest a leaning toward one side or the other. In each potential instance, the judge should determine whether there is a legitimate basis for the party seeking the discovery to argue from it that the expert has demonstrated a positional bias. Upon finding sufficient evidence from which positional bias could be argued, the judge could limit the turnover to an indication as to the percentage of the expert's yearly income without compelling the turnover of the amounts of income received or other sensitive information.*fn2
In short, we think it would be an unusual case in which, following such an examination, the actual amount of yearly income earned by the expert should be revealed to the opposing party. Instead, in most if not all cases, it serves the litigant's right to discover and later prove positional bias for the litigant to learn the percentage of yearly income the expert has derived from rendering services of the type rendered in the suit at hand. Indeed, such an approach serves the interests of both sides in the matter. Is it not more meaningful to let a jury know that an expert earns 98% of his or her income from rendering litigation services for the defense in personal injury suits than it is to tell the jury the particular amounts? In that way, the party seeking the information is able to offer relevant evidence during trial regarding positional bias without the court having created open season on the expert's financial records. Although we have indicated ways in which sensitive financial material may remain confidential, we do not foreclose the turnover of an expert's financial information in appropriate cases following a principled analysis of the competing interests.
When presented with a conflict regarding the production of this type of information, a judge should carefully analyze the competing arguments to ascertain the extent to which discovery should be ...