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Posted in Blog on January 2, 2019   |  by Gary Burger

Advanced Trial Law: How to Strike Cumulative experts

Q: Can a party have multiple experts testify in a medical malpractice trial?

A: Sometimes

This is the second in a series of advanced trial articles. Last email we discussed multiple verdict directors for one verdict form. Here we show how we successfully struck two of three experts in a medical malpractice case we recently tried.

We wanted to as more expert witnesses creates the risk the jury will resolve differences in expert testimony by the number of experts called, giving the defendant an advantage. And it's more expensive.

To avoid this we filed a motion to strike the experts as prejudicially cumulative, even if they are otherwise qualified.

We designated one expert to testify regarding the psychiatric standard of care and causation. The defendant designated three: Dr. Adam Sky, Dr. Douglas Jacobs, and Dr. Leo Sher – all psychiatrists.

Prior to even taking the experts’ depositions, we filed a motion to strike, and the court entered an order striking one of the three experts as cumulative. We then deposed defendants’ two remaining experts, Dr. Sky and Dr. Jacobs.

When asked in his deposition, Dr. Sky testified that he did not disagree with any of Dr. Jacob’s opinions or have any additional different opinions. We attached that portion of the transcript to our second motion to strike, and argued that the experts’ opinions were nearly identical and thus cumulative: both thought the defendant did not breach the standard of care.

In response, defendant claimed that the experts were not cumulative because Dr. Jacobs specialized in suicide, whereas Dr. Sky specialized in the clinical care of elderly psychiatric patients.

We argued there was no material difference in their testimony, and that the defendant cannot attempt to persuade the jury by the sheer number of experts when their testimony is the same. The Court agreed, and struck Dr. Sky as cumulative.

Defendant relied on the latest Supreme Court case on this issue, Shallow v. Follwell, 544 S.W.3d 878 (Mo. Banc 2018). There, the plaintiffs brought a wrongful death medical malpractice action alleging the physician negligently perforated the decedent’s bowel during hernia surgery, causing septic shock, and did not treat the bowel perforation after the decedent was readmitted.

In response to plaintiff’s one expert, defendant called four – a board-certified doctor in general surgery and critical care medicine, a cardiologist, vascular surgeon, and colorectal surgeon. The plaintiffs argued that allowing four experts to testify was needlessly cumulative.

The Court rejected this argument: “While the expert testimony overlapped at times, the experts testified about their own specialties and offered their own parts…when the expert testimony did overlap, the overlapping testimony went to the issue of the standard of care and causation – “the very root” of a wrongful death action arising from medical negligence.” Id. at 884.

Nevertheless, the Court acknowledged that the number of experts who may testify is not limitless; rather, the probative value of testimony must be weighed against the risks it poses of unfair prejudice. Id. at 885.

We distinguished our case from Shallow by emphasizing both of defendant’s remaining experts were psychiatrists with materially similar opinions. In contrast, the four experts in Shallow practiced in different specialties, and although their opinions overlapped, they had unique testimony to contribute. The Court agreed.

Some takeaways from our experience include:

  • If a defendant designates multiple experts to testify regarding the same issues, file a motion to strike before expert depositions to avoid unnecessary costs of deposing expensive experts.
  • When deposing multiple experts, asking if their opinions differ from one another is a win-win; either they agree on everything and are subject to being stricken as cumulative, or they disagree and discredit each other.
  • If multiple experts are permitted to testify at trial, timely objections are important. “When portions of a witness’ testimony are alleged to be cumulative and portions of the testimony are not, an objection to the cumulative evidence must be made after each question seeking to elicit the objectionable testimony.” Shallow, 544 S.W.3d at 884 n. 2 (Mo. Banc 2018).
  • Highlight the similarity of the experts’ specialties and opinions through their deposition testimony, CVs, or the designations themselves.

Note that in Missouri, a qualified expert may testify if “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue…” Mo. Rev. Stat. § 490.065 (2018).

The circuit court enjoys considerable discretion in the admission or exclusion of evidence, including expert testimony. Shallow, 544 S.W.3d at 885. As with other evidence, the probative value of admitting expert testimony must be weighed against the risks it poses of unfair prejudice, cumulativeness, confusion of the issues, misleading the jury, undue delay, or waste of time. Id. at 883.