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contained, mentioned or referred to in any such report. Provided, that in all causes involving the testamentary capacity of decedents, the expert, as such, shall only report upon and be examined in respect to the facts in his own knowledge, or facts testified to by other witnesses at the trial of the cause.

"3. In any action in any of said courts, wherein damages shall be claimed for any injury to the body or health, physical or mental, of any person, and wherein any expert or experts shall be appointed by any judge under the preceding two sections for the purpose of making an examination of the body and health of the person alleged to have been so injured, the judge may require the person alleged to have been so injured to submit, under penalty of nonsuit, to a reasonable examination or examinations of his body and health, physical or mental, by the expert or experts so appointed, at such times and places as said experts may require to enable them to make their report thereon to the court, and as the judge shall prescribe; and thereupon such action may be postponed, suspended or continued, in the discretion of the court, until the examination or examinations shall have been made. And in any such action the judge of the court may, upon the application of the plaintiff, require the defendant to permit the attorney of record of the plaintiff, with any expert or experts appointed under the preceding two sections, to view and examine the place and cause of such injury, at such reasonable time and upon such terms and conditions, as said judge may direct.

"4. This Act shall not be construed as limiting the right of the parties to call other expert witnesses subject to the provisions of section 5.

"5. Fees of experts, except as provided in section 1 of this Act, shall not be allowed as part of the costs in any case, in excess of the fees allowed for ordinary witnesses.

"6. No expert witness shall be paid or receive or contract for, as compensation in any given case for his services as such, a sum in excess of the ordinary witness fees provided

by law, unless the court before whom such witness is to appear or has appeared by its written order filed in the cause allows the party to pay a larger sum. Any expert witness who shall directly or indirectly receive or contract for a larger amount than that to which he is legally entitled under this Act, and any person who shall pay or contract to pay such witness a larger sum than that to which he is legally entitled, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars or by imprisonment not to exceed one year, or both, in the discretion of the court."

Respectfully submitted,

S. B. WHITEHEAD,
J. A. C. KEith.

Mr. John T. Harris, Jr.: Mr. President, in view of the small number present now, I move that the report be mailed and a postal card vote taken of the members.

Mr. Frick: Mr. President, I move that the Association approve that bill, and that the Secretary be directed to communicate it to the General Assembly as the sense of this body.

Mr. John T. Harris, Jr.: I want to know if the bill provides that the State shall pay the expense of expert medical testimony in civil cases.

Mr. Frick: That is in the discretion of the judge; he can do that when they are poor people. It is a part of the costs if the judge requires it to be done.

Mr. John W. Stephenson, of Warm Springs: Mr. President, I do not quite comprehend the necessity for that bill. I confess I am a little in the dark about that, and I would like to ask the author of the bill what is the necessity for it. It is not evidence; it seems to be a basis of searching for evidence.

Mr. Whitehead: If you want to know the necessity for it, I will tell you. Go down where they will be trying Mr. Beattie before long and you will find out. When a man has got money, he will bring from all over the United States experts to prove he is insane, and was insane when he committed the crime of which he is charged. Suppose the Commonwealth has got no money to get any evidence of that sort, then you have, before an ignorant jury, a whole lot of doctors testifying that the prisoner is a crazy man, and the Commonwealth sitting there with her hands tied, with no doctors at all. Expert evidence is a perfect disgrace all over the United States. You will find in the Beattie

case that the defense will put in expert testimony, and that bill is made to meet that very case.

Mr. Stephenson: How about civil cases?

Mr. Whitehead: Sometimes you want them in civil cases.

Mr. Stephenson: What effect does that kind of a report, according to the bill, have in civil cases?

Mr. Whitehead: I haven't read it for a year. We copied it practically from the Maryland Bar Association's bill. You can conceive of a big will case with a lot of money on one side and a poor man on the other, and the people with money bring a whole crowd of medical experts to prove that the man was crazy; it is to meet that.

Mr. Frick: Mr. President, it is very well known that in every case where expert testimony can be used, an engineering case, or a will case, or any case where experts can be introduced, one side will hire witnesses to swear to one thing and the other side will hire witnesses to swear to just the opposite; and the result is that the jury are so befogged that they don't know what to do. This bill permits experts to be appointed by the court, and it expressly states that they shall not be regarded as the witnesses of either side, but as the witnesses of the court. They make a

report; that report is not evidence, but it is within the reach of counsel and parties on both sides so that they can consult the report and learn the facts in the case as they have been developed by these experts. The experts themselves are put on the stand and are examined in the light of the reports which have been filed.

Mr. Sipe: Who puts them on the stand?

Mr. Frick: Anybody who wishes to do so. They are witnesses of the court. Either side can put them on. But in order that the rights of people may not be prejudiced, there is a proviso that either side may employ its own experts, so there will be no question of the court's excluding any testimony that ought to come in. But in order to prevent anything in the nature of bribery, or to prevent a man's judgment being influenced by the size of his fee, these experts employed by the parties are not allowed to charge any more than the fees allowed by the court; they can tax in the costs only the fees of ordinary witnesses, and it is a misdemeanor for them to charge their employers more than this unless that fee is allowed by the court.

It seems to me that this bill throws about the employment of experts all the safeguards that it possibly can, and that it makes expert medical testimony really useful, and not a farce as it has been for years.

Secretary Minor: Mr. President, the bill uses the words "expert medical testimony." It would seem to me very desirable to make it apply to any sort of expert testimony.

Mr. Frick: I did not know it does that. I move to strike out the word "medical."

Mr. Whitehead: I have no objection to that amendment.

Mr. Frick's amendment was duly seconded and adopted.

Mr. Page: Mr. President, I rise to ask the mover of the resolution a question simply to throw light on the subject; I am not making any captious objection. Am I correct in understanding that the bill allows the court in any case where expert testimony is desired, to employ an expert upon the motion of either side, and then that the fee of that expert be taxed along with the other costs in the case?

Mr. Frick: Yes, the court can do it on the motion of either side, or on its own motion, if neither side suggests the employment of expert testimony.

Mr. Page: Does it apply to civil cases?

Mr. Frick: Yes, it applies to all cases.

Mr. Page: The reason I am asking these questions is simply for information. Of course the bill has been printed and I have read it. Now one of the great criticisms upon our profession is the high cost of litigation. I am not criticising the work of this committee, or the work of the Maryland Association, but I am calling attention to the fact that the cost of litigation is already so great that complaints are being raised all over the earth. Does not this increase the cost of litigation?

Mr. Frick: I think it reduces the cost of litigation. Thousands of dollars now are paid to expert medical witnesses, and very often the parties compete in the size of the fee paid, in order to get the best testimony from the biggest men. Under this bill the fees of expert witnesses are regulated by the courts. The court fixes, the fees of its own witnesses, and the parties are not allowed to pay their own experts any more than the court allows its experts. I think the result will be not to increase the cost of litigation, but to reduce the cost. The cost of litigation to a party is not only the taxed costs, but all the costs he pays, to witnesses and everybody else.

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