Wilson v. Stilwill
411 Mich. 587, 309 N.W.2d 898 (1981)
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Rule of Law:
The scope of cross-examination to show an expert witness's potential bias is broad and rests within the trial court's discretion, which may include limited inquiry into the expert's history of testifying for a particular side or attorney. Improper remarks by counsel will not warrant a new trial unless they reflect a studied purpose to prejudice the jury and result in a denial of a fair trial.
Facts:
- Irving J. Wilson experienced problems with his right arm resulting from a non-union of an old fracture.
- Dr. George D. Stilwill, an orthopedic surgeon, advised and performed a compression-plating surgery on Wilson at Edward W. Sparrow Hospital on December 11, 1970.
- Following the surgery, Wilson developed a severe infection in his arm and experienced difficulty moving his fingers.
- Despite treatment with antibiotics and several additional surgical procedures, Wilson’s right arm became permanently paralyzed.
- At trial, the plaintiffs' expert witness, Dr. W. O. Badgley, testified that 40% of his practice involved disability evaluations, some of which were for patients referred by attorneys.
Procedural Posture:
- Irving J. Wilson and his wife sued Dr. George D. Stilwill and Edward W. Sparrow Hospital for medical malpractice in a state trial court.
- At the close of the plaintiffs' proofs, the trial court granted a directed verdict for defendant Edward W. Sparrow Hospital.
- The jury returned a verdict of no cause of action in favor of defendant Dr. Stilwill.
- The trial court denied the plaintiffs' motion for a new trial.
- The plaintiffs, as appellants, appealed to the Michigan Court of Appeals, an intermediate appellate court.
- The Court of Appeals affirmed the trial court's judgment.
- The plaintiffs, as appellants, were granted leave to appeal to the Supreme Court of Michigan, the state's highest court.
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Issue:
Does a trial court commit reversible error by permitting cross-examination of a plaintiff's expert witness regarding their past involvement in other malpractice cases and their relationship with the plaintiff's attorney, for the purpose of showing bias?
Opinions:
Majority - Blair Moody, Jr., J.
No. A trial court does not commit reversible error by permitting such cross-examination, as the scope of questioning intended to show a witness's bias or interest is broad and rests within the sound discretion of the court. In the 'battle of experts' common to malpractice cases, credibility is a primary issue for the jury. A showing that an expert has a pattern of testifying for a particular attorney or category of litigants can raise a possible inference of bias, suggesting the witness may testify in a way that ensures future employment. While such evidence is only minimally probative and must be carefully scrutinized by the trial judge to prevent harassment, it is a permissible subject of limited inquiry for the jury to evaluate. The court also found that defense counsel's closing argument comment about 'professional witnesses,' while improper, was an indirect reference and did not rise to the level of egregious misconduct requiring a new trial.
Dissenting - Levin, J.
Yes. A trial court does commit reversible error by permitting this type of cross-examination because its minimal probative value is substantially outweighed by the danger of unfair prejudice. An expert's history as a witness is not truly probative of bias; rather, such inquiries create collateral issues and distract the jury. In medical malpractice cases, this practice is particularly unfair because it allows defense counsel to exploit the well-known difficulty plaintiffs face in finding physicians willing to testify against their peers. This questioning is intended to insinuate that the few physicians who do testify are avaricious 'hired guns,' thereby undermining the plaintiff's case through prejudice rather than evidence. The improper 'professional witness' comment in closing argument magnified this error and deprived the plaintiffs of a fair trial.
Analysis:
This decision solidifies the trial court's broad discretion in managing the scope of expert witness cross-examination, particularly regarding impeachment for bias. It establishes that an expert's financial interest and litigation history are relevant areas of inquiry, setting a precedent that such questioning is permissible to help the jury assess credibility. However, by noting this evidence is only 'minimally probative' and must be 'carefully scrutinized,' the court cautions against its misuse for harassment or unfair prejudice. This holding balances the need to expose potential bias with the need to protect witnesses and prevent trials from devolving into ad hominem attacks, shaping how attorneys prepare and question expert witnesses in future litigation.
