Kelly on Malpractice

If you have a case against doctor insured by State Volunteer Mutual Insurance Company (“SVMIC”), then it is almost certain that the defendant will disclose two to three times as many experts as you have. Hospitals occasionally do this too. The purpose is simple. They want to wear you down, increase your expenses in discovery, and audition their experts to find out which ones are the best witnesses. I have spent many hours and dollars deposing multiple experts while padding the defense counsel’s fees. Moreover, I have wasted my good cross examination material on experts who will never see the courtroom. I got fed up and decided to fight back. I always file a motion to limit the number defense experts when this happens.

Here’s how I draft the motion. Rule 1 provides that the rules shall be construed “to secure the just, speedy, and inexpensive determination of every action.” The tactic of using multiple experts to testify at trial defeats the stated purpose of Rule 1. Rule 16 grants the court discretion to “expedite disposition of the action,” to avoid “unnecessary proof” and “cumulative evidence,” and to adopt “special procedures for managing … multiple parties.” Furthermore, a trial judge has broad discretion to limit the number of expert witnesses on a particular issue. Gotwald v. Gotwald, 768 S.W.2d 689, 700 (Tenn. Ct. App. 1988) (Franks, J. concurring). Rule 403 also grants the court discretion to limit testimony at trial that would be “cumulative, a waste of time, or present a danger of unfair prejudice.” Unfair prejudice includes wasteful practice. It is unfair to force the plaintiff to prepare for the trial testimony of multiple experts, when the defendant physician may only call one or two of them to testify. It is unfair to force the plaintiff to prepare individual motions in limine for multiple experts. It is unfair to force the plaintiff to prepare for cross examination of all experts who are basically saying the same thing. Wasted time is not confined to the plaintiff. The trial court is forced review and analyze some of this same material to prepare for hearing the motions in limine. This wasteful exercise flies in the face of Rules 1, 16.02, 16.03, and 403.

There are also federal cases limiting expert testimony where it was found to be cumulative. In Washington v. Greenfield, 1986 WL 15758 (D.D.C. 1986), the plaintiff sought to limit the number of defense experts who could testify. The issue was whether the testimony of four (4) gynecological experts in a medical malpractice case would be cumulative or whether each expert would add to the evidence presented at trial in a meaningful way. After examining defendants’ Rule 26 reports involving these gynecology experts, the district court concluded that use of all four expert witnesses presented cumulative and unnecessary evidence at trial. Of the four experts, the proposed testimony of two experts was essentially the same. The other two experts had very similar opinions. The district court chose to limit the defendants to two expert witnesses in gynecology instead of four because four experts in the same field would be “unnecessarily cumulative.” Likewise, in Geico Cas. Co. v. Beauford, 2007 WL 2412974 (M.D. Fla. 2007), Beauford intended to call three expert witnesses: Mr. Farrell (an insurance industry expert), Mr. Rywant (an experienced attorney in the area of insurance bad faith), and Ms. Knight (an insurance industry expert). Geico moved to preclude Beauford from submitting cumulative testimony from its experts. Geico contended that the proposed testimony of these experts was duplicative and should be excluded under Rule 403. The district court found that insurance industry experts had basically the same opinions. The proposed testimony was deemed cumulative. Therefore, the district court excluded one of Beaufort’s insurance industry experts from testifying.

File your motion after the defendant tenders Rule 26 reports. You may not win this motion entirely. However, you may get alternative relief like reducing the number of experts or forcing the defendant to reimburse you for the cost of deposing cumulative experts. To me, it is worth the effort.