Limiting the Number of the Physician’s Experts
posted on October 5th, 2008 in Rule 26, Experts by clintI have noticed a disturbing trend. Physicians, particularly those insured by State Volunteer Mutual Insurance Company, are disclosing numerous Rule 26 experts from the same specialty as the defendant with identical opinions. This tactic often compels you to spend many thousands of dollars of the client’s money to depose those experts, thereby educating defense counsel at your expense as to which experts make the best witnesses. The cost of deposing those expert witnesses, including each expert’s time and court reporter and videographer fees is likely to exceed $15,000.00 for most specialties.
You can engage in a litigious arms race to retain as many experts as the client can afford to testify in support of his position in the case. However, these experts will have to come from out of state (because of the practical and political ramifications of testifying against a fellow physician in Tennessee, where the vast majority of physicians are insured by the same professional liability carrier (likely State Volunteer Mutual Insurance Company), and the costs of the additional expert testimony would be inflated accordingly. Each additional expert that could be retained by the client would charge approximately the same amount as those already retained or, on average, approximately $25,000 apiece. Thus, if you retain just three additional experts to match the defenant’s additional proffered experts, it could cost you $75,000 in additional expert witness fees and expenses. This is rediculous on many levels and simply unfair.
Hiring additional experts in an effort to match the number retained by the defendant can have a material, perhaps devastating, impact on your client’s recovery. Without doing that, your expenses for the typical malpractice case will usually exceed $100,000 by end of trial. If you were to try to match the Defendant expert-for-expert, those expenses could exceed $225,000. It is extremely unusual in other types of litigation for a party to employ and call multiple experts from the same discipline to offer the same testimony. How often have you seen five biomechanical engineers in a products liability case with identical Rule 26 reports? The tactic of disclosing and calling multiple experts forces the client to choose between a level playing field at trial and a reasonable recovery after payment of attorneys’ fees and case expenses. It also has a deleterious effect on the willingness of patients to file and their potential counsel to accept medical malpractice cases in general (because they know that multiple experts will be utilized by the defense and case expenses will be higher than they should be). So what can you do?
Under TENN. R. EVID. 403, a court has discretion to limit testimony that would be cumulative, a waste of time, or present a danger of unfair prejudice. Under TENN. R. CIV. P. 16, a court has the discretion limit the time of trial, which may in and of itself limit the number of experts who testify, by issuing orders to facilitate the just, speedy and inexpensive disposition of the action. No Tennessee appellate court has tackled the issue of limiting expert testimony. Yet, our courts have been assisted in their construction of the Tennessee Rules of Civil Procedure by analyzing the precedents construing analogous Federal Rules of Civil Procedure. Vythoulkas v. Vanderbilt University Hosp., 693 S.W.2d 350 (Tenn.App.1985). The Tennessee Supreme Court adopted Federal Rule of Evidence 403 verbatim to create the Tennessee analog. State v. Smith, 857 S.W.2d 1 (Tenn.1993). Thus, it comes as no surprise that federal precedents are persuasive authority that should be brought to bear on this issue.
Under FED. R. EVID. 403 and FED R. CIV. P. 16, each district court has discretion to limit the number of expert witnesses when the proposed opinions are cumulative. See Aetna Cas. & Sur. Co. v. Guynes, 713 F.2d 1187, 1193 (5th Cir.1983) (noting that “[i]t is well within the discretion of a district court to limit the number of expert witnesses who testify at trial”); Colon ex rel. Molina v. BIC USA, Inc., 199 F.Supp.2d 53 (S.D.N.Y.2001); Iacangelo v. Georgetown University, 560 F.Supp.2d 53 (D.D.C.2008); Ruud v. United States, 256 F.2d 460 (9th Cir.), cert. denied, 358 U.S. 817 (1958). With respect to limiting the number of experts at trial, the district court has authority, articulated in FED.R.CIV.P. 16(c)(4), to take action for the “avoidance of unnecessary proof and of cumulative evidence.” Id. The most extreme application of this doctrine is where the district court limits expert testimony to one expert for each distinct discipline, such as oncology and epidemiology. Riley v. Dow Chemical Co., 123 F.R.D. 639 (N.D.Cal.1989).
There are practical examples of this doctrine at work within the federal courts. 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 about these gynecology experts, the district court concluded that use of all four expert witnesses presented cumulative, 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. All four of the doctors had the same credential of board certification in gynecology. None of the experts had a particular sub-specialty that would make his testimony non-cumulative. Because allowing defendants to present four expert witnesses in the same field would be unnecessarily cumulative, the district court chose to limit the defendants to two (2) expert witnesses in gynecology.
Likewise, in Geico Cas. Co. v. Beauford, 2007 WL 2412974 (M.D.Fla.2007), Geico moved to preclude Beauford from submitting cumulative or duplicative testimony from its expert witnesses. Beauford intended to call three (3) 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 contended that the proposed testimony of these experts was duplicative of one another, and that such cumulative testimony should be excluded under Rule 403. The district court found that insurance industry experts had the same opinions, thus the proposed testimony was cumulative. Therefore, the district court excluded one of the insurance industry experts from testifying on behalf of Beaufort.
Finally, in Siegrist v. Kleinpeter, 2004 WL 797723 (E.D.La.2004), Plaintiff moved the Court to limit the PCF’s opinion witnesses. Louisiana has a compensation fund represented by the PCF, which serves as a defendant in medical malpractice cases. The PCF intended to call two (2) expert witnesses. First, the PCF intended to call Dr. Hammer to testify about standard of care and causation. The PCF also asserted that its second expert witness would be members of Louisiana’s Medical Review Panel that considered plaintiff’s claim. That expert from the Medical Review Panel would also testify about standard of care and causation. The district court found that any testimony by the Medical Review Panel expert on the issue of standard of care and causation would be cumulative of Dr. Hammer’s testimony. Therefore, the district court excluded the PCF’s expert from the Medical Review Panel.
All of these federal cases limiting experts have one common denominator: identical expert reports from identical specialties or trades. Rule 703 declares that experts are supposed to “substantially assist the jury,” not repeat the same thing in stolid succession. Otherwise, there would not be a Rule 403 that designates cumulative testimony as irrelevant. Medical malpractice cases are no exception.
Defendants may suggest that plaintiffs need not incur any expenses associated with these experts since they can choose not to depose them. This leaves the plaintiffs a “Hobson’s choice” or no choice at all. The Plaintiffs deserve an equal opportunity to depose each of these experts. To forego this opportunity is always risky in a medical malpractice case, even when the experts are purportedly going to say the same thing. These cases are too expensive and too time consuming for flights of expert auditions that do not substantially assist the jury in any meaningful way. This is precisely why federal courts whittled down experts from 4 to 2 [Washington v. Greenfield], 2 to 1 [Geico Cas. Co. v. Beauford], and 2 to 1 [Siegrist v. Kleinpeter] when the expert opinions were the same. This is precisely why you should move to limit the number of the defendant’s experts. Let me know if you succeed. I’m already trying to do this in Davidson Circuit. That is the only way we can stop this abusive practice.