The Supreme Court of Virginia has ruled that evidence of an expert witness’ past testimony as an expert is admissible evidence.

The Accident

In December 2015, Deborah Graves was driving her vehicle when she was hit from behind by Samantha Shoemaker. Graves experienced back, hip, and neck pain, along with increased depression and anxiety in the months following the crash. Graves sought medical care and physical therapy that cost over $26,000. Graves filed a lawsuit against Shoemaker seeking $150,000 in damages.

The Expert Witness

Shoemaker’s insurer, State Farm, hired attorney John P. Cattano to represent her in the lawsuit. Cattano retained Dr. William C. Andrews, an orthopedic surgeon who specializes in medicolegal work to testify as a defense expert witness.

Dr. Andrews reviewed Graves’ medical records and prepared an expert report. Dr. Andrews opined that much of the pain that Graves complained of after the crash was caused by preexisting conditions. Dr. Andrews also found that most of the treatment that Graves received was not medically necessary or reasonable to treat her minor injuries. State Farm paid Dr. Andrews $3,362 to issue this report.

Shoemaker’s attorney deposed Dr. Andrews and discovered that Dr. Andrews had been hired by Cattano or his firm 30 to 35 times over the past 10 to 12 years and that he only testified on behalf of a plaintiff one of those times. Dr. Andrews admitted that State Farm had paid him $793,198 for testimony he provided for their insureds from 2012 to 2018. However, he claimed that he was not aware that State Farm was the insurer until he was told at the deposition.

Trial Court

Shoemaker admitted her fault, so the case went to trial on the issue of damages only. Graves made a motion to introduce evidence of Dr. Andrews’ previous relationship with Cattano’s firm and State Farm.  After hearing arguments on the issue, the trial court allowed in evidence that Dr. Andrews had testified on behalf of Cattano’s clients 30 to 35 times in the past. She was not allowed to ask about prior work for State Farm because they were not in a “direct relationship.”

The jury returned a verdict in favor of Graves for $3,000 plus interest. Graves moved for a new trial based upon the ruling that prevented her from introducing evidence of Dr. Andrews’ previous relationship with State Farm. The court denied her motion and she appealed.

The Supreme Court of Virginia

On appeal, Graves argued that the trial court’s ruling went against the Supreme Court of Virginia’s ruling in Lombard v. Rohrbaugh, 262 Va. 484 (2001) by interpreting it to mean that a party must demonstrate a “direct relationship” between an expert and an insurance company before cross-examining the expert on previous payments from that insurance company.  The Supreme Court of Virginia agreed.

The court emphasized that its decision in Lombard only required that there be a “substantial relationship” between an insurer and an expert. The court emphasized that the central issue is not “artificial labels.” Instead, the focus should be on the potential for bias because of the witness’ interest in the case.

Here, State Farm’s past payments of nearly $800,000 to Dr. Andrews over the course of 7 years created a substantial relationship that had potential to create bias in the witness. The court ruled that Graves should have been able to introduce this evidence to the jury. The court vacated the trial court’s verdict and remanded the case for further proceedings.