A federal judge presiding over Taylor v Cottrell, a personal injury case in the United States District Court for the Eastern Division of Missouri, dismissed an expert witness because of an improper fee arrangement. Medical expert Dr. James Odor was prepared to testify in support of damages owed the plaintiff by explaining that a $450,000 spinal surgery was “reasonable and necessary” to correct injuries allegedly caused by the defendants.  During discovery, the defendants discovered documents that indicated Dr. Odor was operating under a contingency fee agreement under which he would not receive payment for his testimony unless the plaintiffs were successful.

The court reviewed the nature of Dr. Odor’s expert witness fee agreement and the Court concluded that it violated the rules governing fee agreements between attorneys and witnesses.  Under Section 117 of the Restatement (Third) of the Law Governing Lawyers, ‘A lawyer may not offer or pay to a witness any consideration contingent on the content of the witness’s testimony or the outcome of the litigation.’ The rule against contingency fees for expert witnesses is designed to preserve the impartiality and the integrity of testimony by removing financial motivation to ensure one party succeeds.  In Taylor, the Court determined that Dr. Odor was not permitted to testify because of the contingency fee agreement between the two parties.