Cumulative Expert Motion in Limine in Medical Malpractice Lawsuit

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

PHYLLIS FRENCH,
- Plaintiff,

v.

CHIAU WEN CHEN,
- Defendant.

Plaintiff’s Motion in Limine to Preclude Cumulative Expert Testimony

Plaintiff, Phyllis French, by and through her counsel, hereby files Plaintiff’s First Motion In Limine to Preclude Cumulative Expert Witness Testimony.

Defendant has named two physicians in identical specialties who will offer substantially identical opinions based upon substantially identical reasoning.

Pursuant to Maryland Rule 5-403, Plaintiff moves to preclude this duplicative testimony because it is unfairly prejudicial, and because it will lead to “undue delay, waste of time, or needless presentation of cumulative evidence.”

Argument
  1. Defendant’s Experts Have Identical Specialties and Will Offer Identical Opinions Based Upon Identical Facts.
  2. This is a medical negligence case in which it is alleged that Dr. Chen negligently caused an injury to the Plaintiff’s common bile duct while attempting a laparoscopic cholecystectomy (gallbladder removal).

    Plaintiff has identified a single expert witness, Dennis P. Smith, M.D., a board-certified general surgeon who will testify on the issues of the applicable standard of care and medical causation. Exhibit 1.

    Defendant has identified two expert witnesses to rebut Plaintiff’s case on the issues of standard of care and causation, Robert Jenkins, M.D. and Sandy Thompson, M.D. Exhibit 2.

    Defendant’s Preliminary Expert Designation reveals that each of these witnesses practices in the same specialty, will testify as to the same issues, and will offer essentially the same opinions based upon essentially the same factual basis.

    Dr. Jenkins is a board certified surgeon. Exhibit 2. His testimony will be based on his experience, training and expertise, as well as the Plaintiff’s medical records. Id. Dr. Jenkins will testify that defendant complied with the applicable standard of care; that no breach of the standard of care caused an injury to Plaintiff; that defendant used appropriate surgical techniques during Plaintiff’s procedure; and that the standard of care did not require defendant to employ an intra-operative cholangiogram or to convert to an open procedure. Id.

    Like Dr. Jenkins, Dr. Thompson is a board certified surgeon. Like Dr. Jenkins, his testimony will also be based on his experience, training and expertise, as well as the Plaintiff’s medical records. Id. Like Dr. Jenkins, Dr. Thompson will testify that defendant complied with the applicable standard of care; that no breach of the standard of care caused an injury to Plaintiff; that defendant used appropriate surgical techniques during Plaintiff’s procedure; and that the standard of care did not require defendant to employ an intra-operative cholangiogram or to convert to an open procedure. Id.

    Dr. Jenkins gave a discovery deposition in this case. He confirmed that he is board certified in general surgery. Exhibit 3, P. 20, L. 2-6. He reviewed a three-volume set of the Plaintiff’s medical records, as well as the depositions of Plaintiff, Defendant, and Dr. Smith. Id. at P. 11, L. 1-13. His opinions were based solely upon his review of the medical records. Id. at L. 9-21. Dr. Jenkins stated the opinions he expects to offer at trial:

    Q. Doctor, can you tell me the opinions that you intend to give in this case if you’re called to testify?

    A. Yes. I believe Dr. Chen followed the standard of care. Procedure was definitely indicated. I think the technique used was appropriate. I believe that recognition of injury was appropriately done in time. And regarding the operative surgeon, I believe those are the opinions I hold.

    Id. at P. 26, L. 20 to P. 27, L. 6. Dr. Jenkins further testified that the standard of care did not require Defendant to convert the laparoscopy to an open procedure, or to employ an intraoperative cholangiogram. Id. at P. 58, L. 12-18.

    Dr. Thompson also gave a discovery deposition in this case. He confirmed that like Dr. Jenkins, he is board certified in general surgery. Exhibit 4, P. 6, L. 21-25. Dr. Thompson reviewed the Complaint, a three volume set of the Plaintiff’s medical records, and the depositions of Plaintiff, Defendant, and Dr. Smith. Id. at P. 23, L. 17 to P. 25, L. 6. He relied only upon Plaintiff’s medical records in forming his opinions. Id. at P. 24, L. 16 to P. 26, L. 5. He was provided a copy of Dr. Jenkins’s report, and testified that he did not disagree with Dr. Jenkins’s conclusions in any way. Dr. Thompson was also asked what opinions he intended to offer at trial:

    Q. Okay. Doctor, could you tell me all of the opinions that you intend to give in this case?

    DEFENSE LAWYER: Objection to the form.

    THE WITNESS: That’s very difficult to do. I can tell you the bulk of the opinions, but I reserve the right to have further opinions should you ask me more questions for which there are more opinions to be rendered. The opinions that I hold in this case are that it was indicated to perform a laparoscopic cholecystectomy.

    • That the laparoscopic cholecystectomy was performed in accordance with accepted standards.
    • That a common duct injury did indeed occur, but was recognized.
    • The opinion that I hold is that the occurrence of an injury is not a deviation of accepted standards, but failure to diagnose an injury and act upon an injury is.
    • Dr. Chen appropriately identified the injury, appropriately sought help and the injury was appropriately remediated.
    • Although Ms. French underwent an additional operation and some additional procedures, it doesn’t necessarily mean any negligence or deviation of accepted standards occurred.

    Id. at P. 28, L. 3 to P. 29, L. 2.

    Based upon their deposition testimony and Defendant’s Preliminary Designation of Expert Witnesses, Dr. Jenkins and Dr. Thompson are board certified in the same specialty. They will testify on the same subjects. They reviewed and based their opinions on identical material. They will offer identical opinions.

  3. Md. Rule 5-403 gives the Court broad discretion to exclude testimony.

It is axiomatic in Maryland that, “[t]he decision to admit or exclude ‘expert’ testimony is within the broad discretion of the trial court and that decision will be sustained on appeal unless it is shown to be manifestly erroneous.” Wood v. Toyota Motor Corp., 134 Md. App. 512, 520 n. 8 (2000) (quoting Troja v. Black & Decker Mfg. Co., 62 Md. App. 101, 110 (1985)).

The Court’s discretion to exclude even relevant testimony is derived from Md. Rule 5-403, which provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Expert testimony is not immune from exclusion on grounds that it is cumulative. Parties have no more right to present cumulative expert testimony than any other sort of cumulative evidence. Recently, the Court of Special Appeals upheld a trial court’s decision, in a medical malpractice case, to exclude the testimony of an expert that would have been merely cumulative of other testimony given in the case. Mahler v. Johns Hopkins Hosp., Inc., 170 Md. App. 293, 322-23 (2006). The court found after examining the record that there was evidence presented at trial by both sides on the issues that the excluded expert would have addressed. The court gave an example:

[A]ppellant proffered that Dr. Zide's testimony was that “the material risks of the genioplasty [were] wound dehiscence, nerve injury, soft tissue changes, ptosis, [and] chin deformity.” But such testimony had already been elicited from Doctors Tufaro and Manson. Dr. Tufaro testified that the risks included lip ptosis, dimpling of the soft tissues around the chin, and a change in position of the lower lip. And Dr. Manson testified that the risks included ptosis of the chin, dimpling, damage to sensory nerves, and a lowering of the position of the lip.

Id. at 323. The court ultimately ruled, “Dr. Zide's testimony would have been, as the circuit court ruled, cumulative. Therefore, the circuit court did not abuse its discretion in excluding Dr. Zide's testimony.” Id.
Similarly, in Rotwein v. Bogart, 227 Md. 434 (1962), the Maryland Court of Appeals held that cumulative expert testimony had properly been excluded. In that breach of warranty action, with regard to, inter alia, the installation of a floor, the plaintiff sought to introduce a flooring expert. The trial court refused to admit it and the Court of Appeals upheld this ruling, stating, “his was rebuttal and cumulative testimony… As the jury had this testimony [regarding the flooring], we do not believe that further testimony would have been of appreciable help, which is the true criterion herein.” Id. at 437.

The District of Columbia has also considered this issue. In In re Moses, 659 A.2d 829 (D.C. 1995), the guardian ad litum (“GAL”) presented three witnesses: two social workers who testified as lay witnesses and a psychiatrist who testified as an expert witness that Moses was incompetent to refuse commitment. Id. at 830. All three witnesses testified that without constant supervision and habilitation, she would be unable to care for herself and would place herself at risk. Id. Nevertheless, the trial judge found that the GAL had failed to prove beyond a reasonable doubt that Moses was incompetent to make her own decisions and dismissed the petition. Id. The GAL appealed the decision, in part on grounds that he had not been allowed to present certain expert witnesses. The D.C. Court of Appeals disagreed with the GAL’s assignment of error and held, “the trial judge…properly exercised his discretion to exclude a third social worker's testimony as well as testimony of an independent psychologist and his written report as cumulative evidence.” Id. at 831 (citing Washington Times Co. v. Bonner, 86 F.2d 836, 846 (D.C. Cir. 1936)).

Federal courts have followed a similar analysis. Generally, courts will look at the qualifications of the expert, the substance of the expert’s testimony, and the material relied upon by the experts. Johnson v. United States, 780 F.2d 902, 906 (1986)(reversing a trial court’s exclusion of expert witness testimony where the witness had different qualifications, used a different analysis and relied upon different evidence than other experts). Similarly, in Leefe v. Air Logistics, Inc., 876 F.2d 409, 411 (5th Cir. 1989), a personal injury case from the U.S. Court of Appeals for the Fifth Circuit, the trial court disallowed the testimony of the plaintiff’s second medical expert on grounds that it would be repetitious and cumulative – although not identical – to testimony already provided by plaintiff’s first medical expert.

Despite that plaintiff’s counsel had proffered that the second medical expert would provide more exact testimony than the first as to the odds of the plaintiff developing arthritis and a precise disability rating, the court ruled that the more general testimony of the first expert had been sufficient. Id. The Court of Appeals for the Fifth Circuit agreed with the trial court under Rule 403 and deferred to the trial court’s discretion. Id. The court further added: “We do want to discourage attorneys from parading additional experts before the court in the hope that the added testimony will improve on some element of the testimony by the principal expert.” Id. The court in Bowman v. General Motors Corp., 427 F. Supp. 234, 239 (E.D. P.A. 1977), likewise excluded the testimony of an expert, in part, under Rule 403 and noted that allowing the additional expert would only have served the plaintiff’s “tactical advantage” in allowing a “rerun of testimony already provided by another expert….”

Here, each of Defendant’s experts are board-certified in the same specialty. They reviewed and based their opinions on the same evidence. They will offer the same opinions on the same substantive issues. Their testimony may only be described as cumulative. Defendants seek an advantage through numerical superiority and through presenting basically the same testimony to the jury twice. The probative value of presenting the same opinions twice is minimal, while the danger of unfair prejudice, confusion of the issues, waste of time, and presentation of cumulative evidence is high. The Court should therefore limit Defendant to one expert on the issues of standard of care and causation.

WHEREFORE, Plaintiff respectfully requests that this Court grant the present Motion, and limit the Defendant to a single witness on the issues of standard of care and causation.

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