In its opinion filed on August 21, 2018, the Missouri Court of Appeals Eastern District Division Two (“Missouri Appellate Court”) held that the trial court abused its discretion in preventing any inquiry into the defense medical expert’s prior litigation history, which prejudiced the plaintiff, holding: “[e]vidence tending to show that [the expert] had an interest in coloring his own opinion testimony in order to serve his own personal ends was ‘essential to the jury’s process of determining the appropriate weight to be given to [his] testimony.'”
The defense medical expert had testified during his deposition before trial that he had been sued for medical malpractice “10 to 12 times”; “[l]ike any human being, there are a variety of emotions that come with being sued, from frustration, to sadness, to anger”; in response to the question ” … that made you feel badly about the system itself; correct?” the expert testified “I believe it can at times”; with regard to two medical malpractice verdicts against him, the defense expert responded to the question “Did you think it was fair?,” “To this day I do not believe that that was an appropriate conclusion”; and, he testified that he had never reviewed a medical malpractice case on behalf of a plaintiff and only testified on behalf of defendants in medical malpractice cases.
The Missouri Appellate Court stated that the interest or bias of a witness and his relation to or feeling toward a party are never irrelevant matters. If a witness is hostile, biased, or prejudiced against a party, the substance of his testimony may be affected by his other-than-impartial state of mind. Thus, the party should be afforded an opportunity to display before an uninformed jury the bias, hostility, or prejudices held by the witness against that party. During cross-examination of an expert witness, parties are to be given wide latitude to test qualifications, credibility, skill or knowledge, and value and accuracy of opinion.
The Missouri Appellate Court stated that it is well settled under Missouri law that a witness may be impeached on cross-examination through the use of evidence demonstrating the witness’s bias, interest, or prejudice. This method long has been permitted in Missouri, subject to the court’s discretion in limiting or, in rare instances, precluding such evidence entirely so as to avoid undue prejudice. This is because the jury is entitled to know information that might affect the credibility of the witness and the weight to give his testimony.
The Missouri Appellate Court noted the defense expert’s deposition testimony in which he explicitly stated that, at least initially after being sued, he felt “bad” about the legal system, that he was “angered” and “frustrated,” and that “[t]o this day” he did not believe that the case resulting in a verdict against him “was an appropriate conclusion.” The Missouri Appellate Court stated despite the defense expert’s testimony that he had “gotten over” his feelings of hostility, it is the jury which must determine the witness’s credibility and the weight to give his testimony; it is the responsibility of the jury, not the court, to determine the credibility of witnesses, resolve conflicts in testimony, and weigh evidence.
The Missouri Appellate Court stated that bias or prejudice of a witness is not collateral and can always be shown subject to the limitations imposed by the trial judge in his sound discretion. Parties are permitted to introduce extrinsic evidence to impeach a witness by showing his or her prejudice or interest in the proceeding, regardless of whether the subject of the extrinsic evidence is independently material to the case. Thus, cross-examination of a witness as to previous or unrelated cases a witness has had involvement in is permissible in the context of bias.
The Missouri Appellate Court held that because the plaintiff intended to use evidence of prior lawsuits against the defense expert to demonstrate his bias, the evidence was relevant and admissible. The Missouri Appellate Court held that the trial court might have, within its discretion, limited the scope of the plaintiff’s inquiry about prior malpractice lawsuits against the defense expert to prevent juror confusion or restrict potentially cumulative evidence, but by prohibiting the plaintiff from engaging in any inquiry at all about the expert’s litigation experience, the trial court completely foreclosed a subject the plaintiff sought to use to demonstrate the defense expert’s bias. Thus, “[t]he trial court abused its discretion in doing so … [e]vidence tending to show that [the defense expert] had an interest in coloring his own opinion testimony in order to serve his own personal ends was ‘essential to the jury’s process of determining the appropriate weight to be given to [his] testimony.'”
Source Koelling v. Mercy Hospitals East Communities, No. ED105839.
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