June 17, 2009
Written By Attorneys Claudia D. McCarron and Paulyne A. Gardner-Smith
Note: This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.
In Dolan v. Fissell, 2009 WL 1165394 (Pa. Super. May 1, 2009), a panel of the Pennsylvania Superior Court was asked to determine whether it was error to permit the doctor who performed a defense examination of the plaintiff to testify for the plaintiff at time of trial. In reviewing this issue of first impression, the Superior Court concluded that it was not error to permit a doctor, who had been retained by the defense to perform an independent medical examination, to testify for the Plaintiff when there was no contractual language between defense counsel and the examining physician that would preclude that physician from testifying for the opposing side.
In Dolan, plaintiff Lisa Ann Dolan was injured when her car was struck from behind by a vehicle driven by Anthony Fissell. Following the appeal from arbitration, defense counsel obtained a defense medical examination by Jess Armine, R.N., D.C. Dr. Armine examined Ms. Dolan and issued a report favorable to the plaintiff, which diagnosed Ms. Dolan as suffering from chronic sprain syndrome. The report was subsequently provided to plaintiff's counsel in accordance with the Pennsylvania Rules of Civil Procedure. Although defense counsel decided not to use Dr. Armine at trial, plaintiff's counsel contacted Dr. Armine about the possibility of testifying as a witness for the plaintiff and Dr. Armine agreed. Over objection of defense counsel, the trial court permitted Dr. Armine to testify as a witness.
On appeal, the Superior Court panel initially noted that "no one can compel an expert to give his testimony for the side that did not employ him." Id. at *3. However, the Superior Court panel also noted that, according to Pennsylvania case law, "if a doctor is willing to testify as to what he found after conducting an 'independent medical examination' for the defense, he is free to do so." Id. at *4. In reaching its decision, the Superior Court panel noted that although Rule 4003.5(a)(3) of the Pennsylvania Rules of Civil Procedure prevents a party from discovery of facts known or opinions held by an expert who is not expected to be called as a witness at trial, the rule specifically exempts medical experts as provided in Rule 4010(b) (examining experts) from this prohibition. Thus, according to the Superior Court panel, "[i]f counsel retains an expert and does not contract to preclude the expert from testifying for the opposing side, he or she takes the chance that the report will be unfavorable and the other side will use it." Id.
Because of the rule enunciated in Dolan, the contract entered into between a party that is hiring a medical expert and that medical expert should contain language precluding the expert from testifying for the opposition. In the absence of such language, a party risks that the expert will be willing to and cooperative in sharing unsupportive opinions with the opposition at time of arbitration or trial.
