Impeaching an Expert with a Felony Conviction

What happens if the opposing expert has a felony conviction?  First, add that expert to a list of people you should not hire.  Second, be ready for motion work about it.

Locally this topic perpetually arises concerning Mark Kabins, M.D.  Dr. Kabins pled guilty to misprisions of a felony in 2010.[1]  18 USC § 4 defines this crime.  “Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.”

In the matters I have handled, Dr. Kabins is predominantly a non-retained expert for personal injury plaintiffs.  Understandably the number of files where I see him designated is far less than what it was pre-2010.  In those files where Dr. Kabins is disclosed, the disclosing party usually then files a motion in limine to prevent Dr. Kabins from being impeached for his felony conviction.  The argument typically is that the conviction had nothing to do with 1) the facts of the case at issue, or 2) his qualifications to practice medicine.

The argument ignores Nevada law.  In the state courts, NRS 50.095(1) unambiguously states decrees Dr. Kabins’ conviction is admissible evidence.  “For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime was punishable by death or imprisonment for more than 1 year under the law under which he was convicted.”  As Dr. Kabins conviction was ultimately punishable by imprisonment for more than 1 year, it is admissible evidence against his credibility.

A similar analysis applies in the federal courts and Judge Gordon addressed it in Calvert v. Ellis.[2]  A non-party witness’ felony conviction for impeachment in a federal court is governed by FRE 609(a)(2), and “must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.”   Judge Gordon even stated beyond FRE 609(a)(2), if FRE 403’s balancing test applied “I would still admit Kabins’s prior conviction. Juries must weigh the credibility of expert testimony, and Kabins’s conviction for a crime involving dishonesty is probative of his trustworthiness.”

Researching an expert, whether in deciding whom to retain or preparing for a deposition, requires more than reading a few records.  No matter how persuasive an expert witness may be, the benefit of using that expert seems to be outweighed by distractions and problems associated with a felony conviction.

[1] The reason for the conviction is irrelevant to this post, however you can read about the reasons here or just Google his name.
[2] 2:13-cv-00464, 2015 U.S. Dist. LEXIS 20850, 2015 WL 732523 (D. Nev. Feb. 20, 2015).