Today’s blog comes courtesy of an appeal decided by the New Jersey Superior Court on March 28th, 2013. In a recent case (Superior Court of New Jersey Appellate Division, Docket No. A-1793-11T4) the issue was whether the lower court erred when it prohibited the plaintiff from calling an expert witness in an effort to equally “balance” the number of experts who could testify for each side.
The facts are simple yet tragic. In September of 2005, a 16-year-old boy was stabbed while with some friends in Jersey City, New Jersey. His mother rushed him to the hospital where he was treated, given a prescription for an antibiotic and discharged. Over the coming weeks, the defendant physician treated the plaintiff several times for severe lower back pain. Nevertheless, he soon slipped in and out of a coma, suffering brain damage and becoming a quadriplegic. In December of 2007, he died from methicillin-resistant staphyloccus aureus, which is an antibiotic-resistant staph infection.
The plaintiff alleged the victim’s infection would have been discovered had the emergency room physician performed adequate tests while treating him in the emergency room.
The Parties presented expert testimony regarding the standard of care in emergency medicine and experts in infectious diseases. The plaintiff also employed the services of an expert in radiology and a forensic economist. All told, plaintiff called four expert witnesses and the defendant called two expert witnesses.
In addition, plaintiff consulted with and attempted to present the testimony of two other experts: a second emergency medicine expert witness as well as a second radiologist. However, due to an “informally granted” pretrial motion by the defendant, the court limited each side to one expert witness for each relevant subject or specialty.
In his opening statement, the defense attorney argued, inter alia, that no emergency physician with the solitary exception of the expert called by the plaintiff would have thought to treat the decedent for an infection. This, of course, was a knowingly false statement by counsel, as he was well aware that plaintiff had been denied its request to put an additional expert emergency physician on the stand who agreed with the plaintiff’s claim of negligence. Nonetheless, even after a second request by plaintiff’s attorney, no additional witnesses were permitted to testify. After trial, the jury returned a verdict in favor of the defendant.
On appeal, the Superior Court reversed and remanded the case for retrial. The question presented was whether the lower court had erred by prohibiting the testimony of additional expert witnesses due to its finding that the testimony would have been “duplicative.”
The Superior Court held:
- Nothing in the rules of evidence gives a trial court authority to balance the number of witnesses presented by each side at the trial.
- The trial court was not authorized to bar crucial evidence merely on the ground that it duplicates another witness’s testimony.
Notwithstanding the complexity and time requirements of expert testimony, the court saw “no reason that expert testimony should be treated wholly differently from factual testimony with respect to vital opinions that go to the heart of the disputed issues in the case.”
They went on to say that a court may only restrict the number of expert witnesses where the moving party demonstrates that additional expert witnesses would confuse the issues or cause an undue delay, waste of time or needless presentation of cumulative evidence. (See Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 495 (1999).
The take-away from this case is, at least in New Jersey, not to shy away from consulting with and calling additional expert witnesses simply because they may testify to the same or similar facts. Juries are entitled to hear at least some confirmatory evidence, particularly when they involve “crucial” issues. Further, it is not appropriate for a judge to try to ‘even the playing field’ by limiting expert testimony.
By: Ian Heller, Attorney at Law