Trial Judge Erred in Limiting Medical Malpractice Plaintiff to One Expert Only

McLean v. Liberty Health System, 430 N.J. Super. 156 (App. Div. 2013).  This opinion by Judge Ashrafi addresses a number of evidence issues.  The most important, however, relates to the decision of the Law Division to limit plaintiff to one expert witness on the subject of medical malpractice.  Plaintiff sought to offer a second expert, but the Law Division excluded that testimony as duplicative.  The jury rendered a defense verdict.  Plaintiff appealed, and the Appellate Division disapproved of the exclusion of the second expert and ordered a new trial.

Judge Ashrafi noted that it was unclear how the limitation on expert witnesses came about, and reminded trial judges and trial counsel that a record of evidence rulings needs to be made.  Plaintiff had originally planned to call five expert witnesses, including two emergency room doctors.  There was apparently a “preliminary indication” by the Law Division that only one E.R. doctor should be used, and plaintiff then selected one of the two E.R. doctors to testify.  

Before that expert testified, however, defense counsel told the jury that “no emergency room physician with a possible exception of … plaintiff’s expert who is going to testify here” would ever have supported plaintiff’s position.  In fact, plaintiff’s second E.R. expert was prepared to do exactly that.  Plaintiff sought to revisit the issue of using a second E.R. doctor in light of that statement, but the Law Division rebuffed that attempt, characterizing defense counsel’s statement as “just hyperbole … [a] passionate attorney losing his cool for … two seconds,” and labeling plaintiff’s second expert’s testimony as “duplicative.”  The Appellate Division found that this was a mistaken exercise of the trial judge’s discretion in controlling the introduction of evidence under Evidence Rule 611(a).

The expert testimony was on a “crucial” subject.  Judge Ashrafi noted that fact testimony from multiple witnesses is routinely permitted, and there was no reason to impose an arbitrary limit of one witness to present expert testimony.  Nor did Evidence Rule 403, which permits exclusion of evidence whose probative value is “substantially outweighed by the risk of (a) … confusion of issues … (b) undue delay, waste of time, or needless presentation of cumulative evidence,” justify the Law Division’s decision.  Second opinions are common in the medical context, and plaintiff should have been allowed to present a second expert medical opinion here, especially since defendant’s opening statement had asserted that the E.R. doctor who was to testify for plaintiff was the only one who held the view that that doctor did. 

Finally, Judge Ashrafi observed that Rule 403 refers to “needless … cumulative evidence” that might cause undue delay or a waste of time, not to merely “duplicative” evidence.  The panel did not “preclude a trial judge from excluding expert evidence when its cumulative nature substantially outweighs its probative value.  [The court] h[e]ld, however, that two expert witnesses on the central issue of liability in a medical malpractice case do not per se reach the level of needless cumulative evidence that substantially outweighs its probative value.”  A new trial was required because the error in excluding the second E.R. doctor could well have affected the jury’s verdict.