Asking the Court to Limit the Number of Designated Experts
You may want to consider filing a motion early in your medical malpractice case asking the court to set a limit on the number of expert witnesses who may be disclosed by the opposing party. Let me give you an example.
A few years ago we represented an infant who suffered brain damage at birth. The family had limitted resources, and needed those resources to care for the infant and other children. The lawsuit which arose from the infant's injury involved four defendant doctors, the doctors' medical groups, and two major hospitals. Early in the litigation the defendants indicated their intent to disclose more than thirty-seven experts in the case. The cost to the plaintiffs of discovery depositions alone of these thirty-seven or more experts would have been astronomical. Therefore, we filed a motion asking the court to limit the number of expert witnesses identified by each party. Specifically, we proposed that the trial court limit(1) the number of non-party obstetrical expert witnesses to one per defendant and (2) the number of expert witnesses in other medical specialties to two, per defendant, per specialty.
We relied on Rule 16 of the Tennessee Rules of Civil Procedure which authorizes the trial court, upon motion, to take pretrial action to: “(1) expedite the disposition of the action . . . [and] (3) discourage wasteful pretrial activities.” The court is authorized pursuant to Rule 16.03 to take action with respect to: “(3) . . . advance rulings from the court on the admissibility of evidence, (4) the avoidance of unnecessary proof and of cumulative evidence. . ., (10) the need for adopting special procedures for managing . . . multiple parties. . ., and (11) such other matters as may aid in the disposition of the action.”
The trial court declined to put an outright limit on the number of experts disclosed by each party but did give us an order providing that, should any Defendant identify as experts more than one non-party obstetrical expert witness and/or more than two expert witnesses in each other medical specialty per defendant, that Defendant would be required to pay the court reporter fee, transcript fee and any expert witness fees associated with the Plaintiffs’ efforts to take a discovery deposition of the additional expert witness(es).