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Tuttle v. Perry8/22/2002
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
REVERSING
The use of highly compensated, learned professionals as expert witnesses in complex litigation has become axiomatic. Many cases become reduced to a "battle of experts" and parties who enter the fray understand from the outset that the qualifications and testimonial persuasiveness of their experts will be indicative of the outcome. As such, desirable persons willing to serve as expert witnesses are able to command substantial fees, often in excess of their level of compensation as practitioners of their professions. Some even devote more time and effort to their expert witness sidelines than to their underlying professional practices. With this evolution of litigation practice, and recognizing that this Court has not directly considered whether an expert witness may be questioned as to amount of compensation since 1964, nor since the 1990 adoption of the Kentucky Rules of Evidence; we granted discretionary review of the Court of Appeals' opinion denying the right to so inquire.
On April 29, 1997, Christopher Tuttle, a man twenty-three years of age, went to the emergency room at Greenview Hospital complaining of chest pain. He was treated by Dr. Frank Perry who, after having an EKG and chest x-ray performed, diagnosed gastritis and prescribed a GI cocktail. Tuttle was discharged with medication and instructed to see his family physician.
On May 3, 1997, Tuttle went to an urgent care facility again complaining of chest and abdominal pain, and on this occasion, he was treated by Dr. Ronald Berry. Dr. Berry was informed of Tuttle's recent Greenview Hospital tests and did not repeat those tests. Based on the previous test results and his examination, Dr. Berry diagnosed gastritis and scheduled Tuttle for a gallbladder ultrasound and upper GI tests to be performed on May 6.
Tuttle did not keep the May 6 appointment, but was called by someone at UrgentCare and requested to come in for a follow-up visit. He went to UrgentCare on May 7 where he was seen by Dr. Richard Larson. Tuttle complained of chest pain and shortness of breath and Dr. Larson ordered an EKG and chest x-ray. After the chest x-ray, while walking back to the examination room, Tuttle collapsed and died shortly thereafter of a ruptured thoracic aortic aneurism.
Litigation was brought by the decedent's estate. In discovery, it was revealed that one of Dr. Perry's expert witnesses testifies 85-90% of the time for the defense in medical negligence cases; that he reviews twenty-five cases per year; and that his rate of compensation is $2,000 per day during trial and $500 for the first hour of deposition and $300 per hour thereafter. Dr. Perry's other expert testified in discovery that he charges $5,000 per day for trial, $400 per hour for deposition, and $250 per hour for case review. Despite these facts, the trial court ruled in limine that appellants, plaintiffs at trial, would be precluded from inquiry as to the amount of expert witness compensation. The case was tried to an 1 l-l jury verdict for the defendants, appellees herein, and judgment in accordance with the jury verdict was duly entered. On appeal, the Court of Appeals considered the issues presented and, discerning no reversible error, affirmed the trial court. This Court granted discretionary review to consider three procedural issues, and to determine whether there was error, and if so, whether a new trial is required.
The only issue we will need to decide is whether the trial court erred in prohibiting appellant's cross-examination of appellees' expert witnesses as to the amount of their fees and compensation for testifying in the case. At the outset,
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