In Revis v. Bassman (ED107663), Missouri’s Eastern District Court of Appeals recently reversed and remanded the trial court’s ruling barring Plaintiff from cross examining the defense expert on his tort reform activity.
In the underlying case, Revis alleged Dr. Bassman was medically negligent in delaying surgery for her fractured heel. At trial, Plaintiff made an offer of proof that Dr. Bassman’s orthopedic surgery expert, Dr. Brett Grebing, served as the President of the Madison County Medical Society from 2012 to 2013, during which time he advocated for enforcement of Illinois’ statute of limitations for certificates of merit and reinstating damage caps. Plaintiff further showed that, despite Dr. Grebing’s prior deposition testimony where he testified it was “fair to say” he had engaged in tort reform activities, Dr. Grebing would deny such activities at trial. This discrepancy could have impacted his credibility with jurors. Plaintiff argued this evidence was necessary to show Dr. Grebing’s general and personal bias against plaintiffs in medical malpractice cases. The trial court barred the evidence, but the appellate court ruled this was an abuse of discretion.
Missouri law is well-settled that jurors are entitled to information that might affect witness credibility and the weight of witness testimony. Missouri courts have consistently held that the bias or interest of a witness is never irrelevant and cross-examination on such issues, while within the discretion of the court, should generally be permitted.
The Court of Appeals relied on Koelling v. Mercy Hospitals East Communities, in which the trial court barred the cross-examination of a defense expert about his prior deposition testimony regarding his anger, frustration, and bias against medical malpractice claims, arising from his personal experience of being sued in medical malpractice suits, and a judgment against him. 558 S.W.3d 543 (Mo. App. E.D. 2018). The Koelling trial court barred the evidence, which the appellate court ruled was an abuse of discretion because it showed the expert’s bias against medical malpractice claims.
Here, the appellate court was unconvinced that any factual differences between Revis and Koelling were consequential. The Court reasoned that Dr. Grebing’s denial of tort reform activities, despite earlier deposition testimony to the contrary, may have impacted his credibility with the jury. Additionally, his advocacy as a medical professional in favor of damage caps could be viewed by jurors as a direct financial interest in medical malpractice reform. Jurors could thus conclude Dr. Grebing’s efforts to limit monetary awards against all doctors could play a role in his testimony in this case.
The Eastern District Court of Appeals ultimately held the trial court abused its discretion in barring Plaintiff’s cross examination of Dr. Grebing regarding his tort reform activities because it should have been up to jurors to determine if his tort reform efforts were a source of potential bias or prejudice.
The Revis ruling was not unanimous. In his dissent, Judge Odenwald wrote that the factual distinction between Revis and Koelling was important. The evidence at issue in Koelling was of a personal nature. In Revis, Plaintiff was allowed to thoroughly cross examine Dr. Grebing regarding his personal litigation history. The issue on appeal was the questioning of Dr. Grebing regarding his professional activities, which the trial court found was simply too tangential and remote to show bias and could confuse the jury, was well within the trial court’s discretion.The Eastern District Court of Appeals may provide further clarification and parameters on this issue in future cases. Until that time, counsel may deem it prudent to consult with their current and future experts regarding their feelings related to personal litigation experience and tort reform activities to avoid any surprises at trial.