In most states, the trial judge has substantial discretion to control the presentation of evidence.  Some judges are notoriously strict task masters, pushing the litigants to complete their presentations as quickly as possible so that the jury may begin the difficult job of deciding who wins.

Just how far may a trial judge go in her quest to “keep things moving”?  Can the court restrict the number of witnesses, particularly experts, who will testify about a common issue?

In McLean v. Liberty Health System, the New Jersey Appellate Division upended what had been the prevailing view that trial judges could restrict the parties to one expert per issue.   Young Kevin McClean, aged 16, died after an infection went undetected at a local hospital.  The administratrix of his estate claimed that the hospital’s emergency room physician failed to meet the standard of care required under the circumstances. The case was expected to be long and complicated so the trial judge restricted each side to one expert per specialty, thus limiting the plaintiff to one expert on the issue of the standard of care expected of an emergency room doctor.

During opening statements, the attorney for the defendant doctor went on the offensive, advising the jury that “we will prove that no emergency room physician with the possible exception of [plaintiff’s expert] ….would ever have thought for a scintilla of a moment that this is a patient with an infection. None.”  The problem was that the plaintiff had already disclosed the reports of two expert witnesses who would both say that the defendant doctor botched the care provided the decedent by failing to identify the infection.  According to the Appellate Division, the defense attorney’s statement was false and the defense lawyer knew it.  Not surprisingly, the jury found in favor of the defense.

Employing sweeping language, the Appellate Division held that “Nothing in our rules of evidence, or other laws or rules, gives the trial court authority to balance the number of witnesses presented by each side at trial.”  The court further cautioned that a trial court may not bar the testimony of witnesses “merely on the ground that it duplicates another witness’s testimony.”

There are many lessons to be learned from McClean.  There seems to be no doubt that a party cannot be precluded from calling multiple witnesses, either fact or expert, on identical issues that are crucial to the case.  Judicial efficiency may be an important goal but it is trumped by a party’s right to put all relevant evidence, even if duplicative, before the jury on crucial issues.

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