When going to trial, a party would often prefer to present multiple witness at trial to testify to the same or similar facts and conclusions in support of the party’s position or against the adversary’s position. It drives the point home to the judge or jury. The impact might be even better when the testimony is provided by multiple experts.

Despite the general rule that a party has the right to present all relevant evidence, there are limits. Some are imposed by the rules of evidence. Others are imposed by the courts for sake of expediency. One example of the latter is routinely found in trial orders which limit each party to one expert per specialty. Even “relevant evidence is inadmissible if its probative value is substantially outweighed by a needless presentation of cumulative evidence.” Woodson v. Go, 166 So. 3d 231, 233 (Fla. 5th DCA 2015).

Strategic and thorough trial preparation can achieve the result of presenting similar fact and opinion testimony of several witnesses while avoiding the bar against cumulative evidence. A great example occurred in Gutierrez v. Vargas, 239 So. 3d 615, 620 (Fla. 2018). It was a medical malpractice case. The plaintiff was a child who sued her doctor for an alleged negligent failure to properly diagnose her kidney disease. The court’s trial order limited each party to one retained expert per specialty.

At trial, the plaintiff presented the testimony of four pathologists. Each of them testified that the disease the plaintiff actually had was not the disease the defendant doctor had diagnosed. Seemingly despite the trial order and over the defendant’s objection, the trial judge permitted the testimony. When the jury returned a multi-million dollar verdict, the defendant doctor appealed. The Third District Court of Appeal agreed with the defendant doctor that the plaintiff had violated the “one expert per specialty” limitation of the trial order and sent the case back to the trial court for a new trial. The plaintiff appealed to the Florida Supreme Court, which accepted review.

On review, the Court noted that, while each of the four pathologists testified to similar facts and conclusions, the testimony did not violate the trial order’s limitation of one expert per specialty. First, the Court found that two of the pathologists were “treating physicians” because they had assisted with the plaintiff’s care. Although the testimony of treating physicians might involve specialized knowledge, their medical opinions are formed in the course of rendering treatment. On the other hand, “expert witnesses” generally only become involved as part of the litigation process. Their opinions are formed after the fact and are for the purposes of the litigation. Thus, the two pathologists involved in the plaintiff’s care were not experts and, therefore, did not violate the court’s order limiting each party to one expert per specialty. Further, the Court found that their testimony, while confirmatory of each other, was not cumulative. They relied on overlapping, but not identical, facts and evidence.

The two other pathologists who testified for the plaintiff were categorized as experts. They had not been involved in the plaintiff’s treatment but were involved solely for the purposes of litigation. One testified during the plaintiff’s “case-in-chief”, i.e., to establish the plaintiff’s case against the defendant doctor. The second testified in rebuttal, after the defendant doctor had presented his case. The trial court permitted the second expert to testify in rebuttal because the first pathologist expert who had testified for the plaintiff had become “unavailable” at that point in the trial. Whereas the Third District Court of Appeal had found this violative of the trial order limiting each side to one expert per specialty such that a new trial was required, the Florida Supreme Court determined that the rebuttal testimony was not cumulative of the plaintiff’s first expert’s testimony, did not bolster the first expert’s testimony, and the defendant doctor was not unfairly surprised by it because he knew “well in advance” that the first expert would be unavailable to provide rebuttal testimony.

We represent owners, contractors, subcontractors, and material suppliers in prosecuting and defending construction lien, payment bond, performance bond, construction defect, and construction contract claims. (We do not provide representation in personal injury or wrongful death cases. However, we are glad to refer you to the best lawyers in those areas of practice.) Even though the vast majority of construction cases are settled before trial, we prepare each case with the expectation that it will be tried.

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