On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2444-08.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Sapp-Peterson.
We granted leave to appeal in this matter to consider the extent to which a party may inquire into an expert's finances and litigation history in gathering information to prove at trial the expert's positional bias. Because defendants' expert, Dr. Ronald Gerson, already acknowledged at his deposition that more than ninety-five percent of his litigation work is for defendants, we find the trial judge abused his discretion in compelling Dr. Gerson to create and produce, at his own cost, documentation that would more precisely reveal the percentage of his work that is defendant-related, the frequency with which he has found plaintiffs to have sustained permanent injuries, and the amount of income derived from performing independent medical examinations (IMEs).
This problem was prompted when plaintiff served defendants with a notice to take the deposition of Dr. Gerson, defendants' medical expert, in this personal injury action.*fn1 The notice demanded that Dr. Gerson bring with him to the deposition the following:
1. Documentation indicating the percentage of [Central's] findings in the past five (5) years that supported the premise that plaintiff suffered no type of permanent injury.
2. Documentation indicating the percentage of [Central's] work that is defense related and the percentage of his work that is plaintiff related.
3. Documentation indicating what monies in the past five (5) years have been paid by defense attorneys to Central for conducting medical exams.
Dr. Gerson was represented at the deposition by his own counsel, who objected to the document request. Thereafter, without objection, Dr. Gerson testified that he conducted an average of eight to nine IMEs per week. He also testified that Central charges a fee of $895 per exam, but would impose additional charges depending on the extent of records and x-ray or MRI studies reviewed in a given case. In answering questions as to the income he personally receives from performing IMEs, Dr. Gerson responded that Central had twelve employees and other overhead expenses which have to be considered before any accurate estimate could be provided.
When questioned about the extent to which Central conducted IMEs for defendants as opposed to plaintiffs in litigation, Dr. Gerson responded:
The [IME] part of our practice... is weighted well over 95 percent defense oriented. We made ourselves available for both, for plaintiff and defendant, but the vast majority of what we're ...