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Mississippi: Commission Was Wrong to Sanction Claimant's Attorney for Subpoena Issued to Employer's Medical Expert

January 26, 2018 (2 min read)

A Mississippi appellate court reversed a decision of the state’s Workers' Compensation Commission that had sanctioned a claimant’s attorney for issuing a subpoena duces tecum to the employer’s medical expert in which the attorney sought information as to how much the physician annually earned performing employer medical examinations (EMEs), IMEs, and from testifying as an expert in workers’ compensation disputes. The attorney claimed he was only trying to establish bias on the part of the medical expert. The Commission quashed the subpoena, refused to strike the expert’s testimony for his refusal to answer questions about his earnings, and ordered the claimant’s attorney to pay the doctor’s attorney’s fees as well as a $5,000 “civil” fine, saying that the discovery sought by the attorney from the doctor was not “relevant or competent evidence” necessary for the resolution of the claim. It wasn’t a total win for the claimant’s attorney. The appellate court allowed the quashing of the subpoena to stand but reversed as to all the sanctions against claimant’s attorney.  The court said that a party is entitled to explore the possible financial bias of an opposing expert witness. It added that these were matters that the claimant's attorney had sought to explore by subpoena and deposition. Accordingly, the court said the Commission erred to the extent that it considered these issues altogether irrelevant. The court noted that the doctor’s own attorney had admitted that state courts had not directly addressed how best to strike a balance between the right of a party to explore an expert's financial bias and the need to avoid overly burdensome discovery directed at such experts. Under these facts, sanctions should not have been issued here, indicated the court.  One justice concurred and dissented.  He agreed that the sanctions order should be reversed; he would have remanded the entire case to allow for the requested discovery.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Wright v. Turan-Foley Motors, Inc., 2018 Miss. App. LEXIS 35 (Jan. 23, 2018)

See generally Larson’s Workers’ Compensation Law, § 124.02.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law