Behler v. Hanlon

199 F.R.D. 553, 2001 WL 418752
CourtDistrict Court, D. Maryland
DecidedApril 20, 2001
DocketNo. JFM-99-3877
StatusPublished
Cited by34 cases

This text of 199 F.R.D. 553 (Behler v. Hanlon) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Behler v. Hanlon, 199 F.R.D. 553, 2001 WL 418752 (D. Md. 2001).

Opinion

MEMORANDUM AND ORDER

GRIMM, United States Magistrate Judge.

This diversity personal injury case has been assigned to me, with the consent of the parties, for all proceedings. 28 U.S.C. § 636(c), L.R. 301.4. The pending dispute involves the plaintiff, Mr. Behler’s, efforts to obtain discovery of facts relating to income earned, and work done, by Robert D. Keehn, MD, on behalf of insurance companies and defense attorneys in connection with conducting Rule 35 examinations of plaintiffs in personal injury cases. Such examinations, euphemistically referred to by counsel as “independent medical examinations” (“IME”), can be anything but independent, if they are performed by a doctor who has significant financial ties with insurance companies and attorneys assigned to defend personal injury cases. Counsel for Mr. Hanlon, the defendant, vehemently has objected to the discov[555]*555ery that plaintiff seeks. Resolution of the pending dispute involves the interplay between the law of evidence relating to the impeachment of witnesses, and the scope of discovery allowed by FED. R. CIV. P. 26(b)(1) and (2), and both must be discussed. For the reasons that will be explained, the defendant’s motion to preclude the plaintiff from discovering information about the income earned by Dr. Keehn in connection with his forensic activities on behalf of personal injury defendants is DENIED, but the information sought by plaintiff must be produced in a form and sequence different than that sought by plaintiff, and its production will be subject to a protective order.

DISCUSSION

Plaintiff originally served a Rule 34 request on defendant, seeking tax returns, and documents relating to income earned during the last five years by Dr. Keehn from defense attorneys and insurances companies, in connection with performing IME’s, and testifying as an expert witness in deposition or at trial. Further, plaintiff sought documents relating to the amount of time Dr. Keehn has spent doing such activities, as well as a list of cases where he has been retained for such services, and attorneys and insurers on whose behalf he has provided forensic services. It is plaintiffs contention that for more than 20 years Dr. Keehn has been a “defense expert for insurance companies”, and plaintiff wants to discover information to use at trial to impeach Dr. Keehn’s credibility by demonstrating bias 1 Defendant answered plaintiffs Rule 34 request with a blanket refusal to provide the requested information. Undeterred, plaintiff had a Rule 45 subpoena served on Dr. Keehn, which requested production of the information. In response, defendant filed a torturously titled “motion to strike reply to defendant’s response to request for production of documents, to quash subpoena and for injunction”, when a simple motion for protective order under Rule 26(c) would have been sufficient. Resolution of this motion turns on whether the information sought by plaintiff is discoverable under Rule 26(b)(1), and, if so, whether it must be produced as requested, or in some other manner, after application of the balancing factors of Rule 26(b)(2).

The pre-December, 2000 version of Rule 26 governs this dispute, as the scheduling order in this case was issued prior to December 1, 20002. However, under either the “old version” of Rule 26(b)(1), which defined the scope of discovery broadly to include any matter, not privileged, that was relevant to the “subject matter” of the litigation, or the “new version” of Rule 26(b)(1), which defines the scope more narrowly as unprivileged facts relevant to the claims and defenses raised in the litigation, the result would be the same. This is because the information sought relates to the credibility of a witness whose testimony will be directed towards important issues in the case. Such information will fall within the scope of discovery under either version of the rules of procedure3 because, as will be shown, a wit[556]*556ness always may be impeached by evidence that she or he is biased, prejudiced, has a financial interest in the outcome of the ease, or a motive to testify in a particular manner.

A. Methods of Impeachment

The importance of credibility of witnesses to the trial of cases cannot be overstated, and this is especially true with respect to expert witnesses. The rules of evidence provide frequent reminders of the importance of credibility issues in trials. Rule 611(b) defines the scope of cross-examination to include the subject matter of testimony developed during direct examination, as well as matters affecting the credibility of the witness. Rule 104(e) teaches that the mere fact that the court has admitted evidence at trial does not mean that it must be given any particular weight by the fact finder, and preserves the right of opposing parties to attack the credibility of witnesses. Similarly, Rule 806 allows a party to attack the credibility of a hearsay declarant by any means that could have been employed if the declarant had testified in person. Despite the recognition of the importance of credibility issues in the Federal Rules of Evidence, they only explicitly provide for three forms of impeachment4 , while, at common law, there were six primary methods of impeachment: (a) impeachment by demonstration of bias, prejudice, interest in the litigation, or motive to testify in a particular fashion; (b) impeachment by demonstration of incapacity to perceive, remember or relate; (c) impeachment by contradiction; (d) impeachment by conviction of a crime; (e) impeachment by prior inconsistent statement; and (f) impeachment by untruthful character or prior bad acts. 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 607.03[2][a] (2d. ed.1997) [hereinafter cited as “Weinstein Treatise”]. The adoption of the Federal Rules of Evidence, which expressly recognized fewer methods of impeachment than had existed at common law, was not intended to preclude those forms of impeachment that were not explicitly recognized, but instead to substitute a “relevance” based approach to impeachment of credibility, under Rules 401, 402 and 403, for the common law approach. Id. at § 607.03[1], [2][b]. . Under such an approach, the focus would be whether there was any logical tendency of information to make a witness’ trial testimony less credible than it would be absent introduction of the impeaching information. If so, then it would be admissible for impeachment, regardless of whether it fit into one of the common law’s “cubbyholes” of impeachment, provided its exclusion was not required by Rules 402 or 403. Thus, as will be seen, each of the common law techniques of impeachment, including bias/interest/prejudice impeachment, that are not the subject of a specific rule of evidence, may still be used today.

1. Bias Impeachment

Although not directly covered by a specific rule of evidence5, a witness may be impeached by showing that he or she is biased, has an interest in the outcome of the [557]*557litigation, is prejudiced in some relevant way, or has a motive to testify in a particular way. United States v. Abel,

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Cite This Page — Counsel Stack

Bluebook (online)
199 F.R.D. 553, 2001 WL 418752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/behler-v-hanlon-mdd-2001.