To Call (Two) or Not To Call (Any) Experts: That Is No Longer a Question

The New Jersey Appellate Division recently handed down two decisions that give trial lawyers greater freedom to try their cases when it comes to the selection and presentation of expert testimony.

In McLean v. Liberty Health System, A-1793-11, a medical malpractice case, the plaintiff retained two emergency room medical experts to opine that the plaintiff’s ER treatment deviated from the standard of care. The trial court granted the defense counsel’s unwritten and off-the-record request that each side be limited to one expert per specialty. During opening statements, the defense counsel then described the plaintiff’s expert as “the only person in the world” who thought the ER was at fault. The trial court denied the plaintiff’s request to call his second expert to rebut the defense counsel’s charge. The trial judge denied the request and characterized the comment as “harmless” and “hyperbole.” The jury returned a defense verdict. The Appellate Division reversed and remanded.

Interestingly, the Appellate Division did not just limit itself to the issue of whether the plaintiff should have been entitled to call the second expert to cure the prejudice caused by the defense counsel’s opening statement. In a broad-reaching opinion, the Appellate Division held that the trial court had no basis to strike redundant expert testimony in the first instance:

The court’s pretrial ruling was a mistaken exercise of its discretionary authority to control the presentation of evidence at the trial. See N.J.R.E. 611(a) (“court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence”). Nothing in our rules of evidence, or other laws or rules, gives a trial court authority to balance the number of witnesses presented by each side at the trial. Nor is the trial court authorized by N.J.R.E. 403 or any other rule or law to bar crucial evidence merely on the ground that it duplicates another witness’s testimony. A trial court would likely abuse its discretion if it imposed a limitation of only one witness for each side to testify on a factual matter that is vital to the resolution of a disputed issue.

This is a significant ruling that has the potential to drive up litigation costs and open the doors to gamesmanship in expert-intensive litigation, such as medical malpractice, products liability, and toxic tort litigation. Limiting a trial judge’s discretion to knock out duplicative testimony has the potential to lengthen trials, as both sides will feel pressure to hire “echo” experts whose primary role will be to reaffirm what the first expert said.

In the second Appellate Division ruling, Washington v. Perez, A-4284-11, the court dealt with a situation where a defendant failed to call one of his experts to testify. In that case, the trial court granted the plaintiff’s request and gave the jury an adverse inference charge:

The judge instructed the jurors that if they found defendants’ experts “are people … or a person whom [they] would naturally expect the defendant[s] to produce to testify, you have a right to infer from the non-production of the witness, that his testimony would be adverse to the interests of . . . the defendant[s].” The judge also explained that “an adverse inference should not be drawn” if either defense doctor “is not a witness whom the defendant[s] would naturally be expected to produce, nor if there … has been a satisfactory explanation for his non-production nor if he is equally available to both parties, nor if his testimony would be comparatively unimportant, cumulative in nature or inferior to that which you already have before you.”

 The Appellate Division held that the judge’s instructions were a reversible error, finding “what occurred here as evidence of the danger of an unfettered use of the missing-witness charge and of our conclusion that defendants were prejudiced by the instruction.” In fact, “the harm to defendants was palpable. By giving the instruction, the judge had put the weight of the court’s authority behind plaintiff’s argument about the missing witness.”

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