The Completion Bonus: Expert Independence, Competence, and Deposition Truthfulness
Dr. Nguyen, a community orthopaedic surgeon, is retained by defense counsel in a product-liability case involving a tibial nail. Counsel sends a $10,000 'completion bonus' payable if the defense verdict is favorable, plus $1,200 per hour for review. Counsel also asks Dr. Nguyen to opine that the plaintiff's chronic regional pain syndrome was caused by the nail and that the manufacturer failed to warn, even though Dr. Nguyen has never treated CRPS and does not use that nail. At deposition, plaintiff's counsel asks about the bonus and about a prior article Dr. Nguyen wrote 12 years ago that criticized the nail's locking screw. Dr. Nguyen's CV omits the article. The retaining attorney tells him to 'just say you don't recall.'
1. Evaluate the fee arrangement and its effect on Dr. Nguyen's independence.
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The $10,000 completion bonus tied to a favorable defense verdict is improper. It creates a direct financial stake in the outcome and undermines the expert's appearance and reality of impartiality. Such an arrangement is likely discoverable, may violate state ethics rules governing expert testimony, and can be used to impeach the expert. Dr. Nguyen should decline the bonus in writing and state that he will be compensated only for time spent reviewing, examining, and testifying.
An hourly fee for review and testimony is acceptable if it is reasonable and not contingent on the result. A flat fee for a defined task may also be acceptable if it is not tied to the outcome. Dr. Nguyen should clarify the fee terms before doing further work and keep the written agreement in the file. If counsel insists on the bonus, he should decline the engagement.
2. Can Dr. Nguyen opine on CRPS causation and failure to warn? What should he do?
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He should not accept those opinions without a genuine basis. Dr. Nguyen can testify about tibial fracture treatment, nail insertion, hardware complications within his orthopaedic experience, and his own surgical observations. He has not treated CRPS and does not use the device, so he lacks the clinical and technical foundation to opine that the nail caused CRPS. Failure to warn involves the manufacturer's knowledge, regulatory standards, and the adequacy of instructions; that is outside his demonstrated expertise unless he has specific training or experience in those areas.
He should tell counsel: 'I can address the orthopaedic issues within my expertise, but I cannot offer a causation opinion on CRPS or a failure-to-warn opinion without an adequate foundation.' He may recommend a pain medicine specialist or a regulatory expert. If he proceeds, he must review the relevant literature and explain the basis for any opinion. A limited, honest opinion is more defensible than an expansive one that invites cross-examination.
3. What are Dr. Nguyen's obligations at deposition regarding the bonus and the omitted article?
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He must testify truthfully. The bonus is a permissible area of inquiry because it bears on bias; he should disclose it accurately, including the amount and the condition, and explain that he declined it. He should not minimize or conceal the arrangement.
The prior article is relevant and likely discoverable. If he wrote it, he should acknowledge it and correct his CV. Saying 'I don't recall' when he does recall-or when a review of the article would refresh his memory-is not acceptable. Before the deposition he should review the article, his prior testimony, and his report, and be prepared to explain whether his views have changed and why. If retaining counsel instructs him to conceal or misstate anything, he should refuse and document the instruction; if the conflict cannot be resolved, he should consider withdrawing.