The answer for one Eastern District Court of Appeals is four.
Facts of Case
Dr. Richard Follwell performed a surgery on Saundra Beaver that involved placement of surgical mesh to repair an abdominal hernia. After surgery, she was found to have a hole in her bowel that caused her to develop a severe infection. She eventually died from sepsis.
Her survivors sued Dr. Follwell for wrongful death. They asserted that Dr. Follwell was negligent in causing a hole in Saundra’s bowel and in failing to properly recognize and treat the problem. Dr. Follwell denied that he was negligent and that he caused the hole in Saundra’s bowel.
As part of his defense, Dr. Follwell asserted a theory that the hole in Saundra’s bowel was caused when a previously undiagnosed heart arrhythmia caused a blood clot to form that restricted blood flow to a section of Saundra’s bowel. This restriction on blood flow caused a portion of her bowel wall to weaken, die and perforate.
As part of the defense, Dr. Follwell testified as his own expert that he was not negligent and that Saundra’s bowel did not perforate under his care. He also hired four experts to support his defense. These doctors were experts in the fields of critical care, cardiology, vascular surgery, and colorectal surgery.
All four of the retained experts testified that Dr. Follwell did not cause the bowel perforation. Three of the four testified that Dr. Follwell did not breach the standard of care. All four repeatedly testified that the cause of the bowel perforation was a blood clot caused by a previously undiagnosed cardiac arrhythmia.
The Trial Court Ruling
At trial, the court overruled plaintiffs’ counsel’s objection that the multiple experts testifying to the same thing was cumulative. The jury returned a verdict in favor of Dr. Follwell.
The Ruling on Appeal
The Eastern District Court of Appeals reversed the verdict and ordered a new trial.
The court of appeals noted the trial court had an obligation to determine when repetitive evidence becomes so prejudicial that is outweighs its cumulative value. The trial court has to determine when cumulative evidence should stop. It also noted that evidence must be legally relevant. To be legally relevant, the usefulness of the evidence must not be outweighed by its costs, or prejudice. This is true even if the evidence goes to the root of the matter in controversy. Here, the concern is that the parade of multiple experts offering the same opinions will result in the jury simply counting the number of witnesses rather than fairly considering the qualifications and credibility of each expert.
The court of appeals noted that there is no bright line test for this. However, here four experts offering the same opinion was too much. The court did seem to say that all the experts could testify. However, they could not all offer the same opinions. Therefore, the defense could use each of the experts to explain to the jury the aspects of the case that fell within their areas of expertise.
Analysis
Plaintiffs’ attorneys may view this as a victory. It provides some relief from the concern that a defendant will simply “outman” the plaintiff with experts. However, the court does not limit the number of experts that may testify. Instead, there is a limit on the number of experts who can offer the same opinion. What that limit is, however, is not explicitly stated. The implication is that the limit may be driven by the facts and complexity of each case. Regardless, defendants run the risk of losing a defense verdict on appeal if they stack the expert deck too high.
The full opinion can be found here.