How many experts is too many? A victory in the Missouri Court of Appeals Eastern District by a trio of attorneys from The Simon Law Firm in St. Louis provided a partial answer.
Amy Collignon Gunn, Ann-Marie Brockland and Elizabeth Washam had the winning argument in Shallow v. Follwell, in which the appeals court in October said plaintiffs in a wrongful death case could get a new trial because repetitive testimony by multiple defense experts had been unfairly cumulative and prejudicial.
Although Missouri doesn’t set a specific limit on the proper number of experts, Chief Judge James M. Dowd wrote for the court, “The absence of a bright line does not mean that there is no line at all.”
The underlying case involved the death of a woman due to a bowel perforation that allegedly occurred during a hernia repair surgery. The Lincoln County jury reached a defense verdict in 2015 after a critical care specialist, a cardiologist and internist, a vascular surgeon and a colorectal surgeon all repeated an alternate theory of causation and opined that the surgeon hadn’t breached the standard of care.
The Eastern District said that after hearing “a chorus of the same ultimate opinion,” the jurors might have been inclined to “count heads” instead of considering the quality and credibility of each expert’s testimony.
“If you say it enough times, people tend to believe it, and we believe that’s what happened,” Gunn said.
Brockland, who tried the case with Gunn, said cumulative testimony has increased in recent years as well-funded defense teams bring in more and more experts. The case appeared from the start to be a good vehicle to challenge the practice, Brockland said, so she reminded Gunn throughout the trial to object repeatedly to the extra experts.
“I was the resident nudger,” she said.
Washam had worked on early stages of the case while clerking for the firm in law school but wasn’t there for the trial. When she rejoined the firm in 2016, she read through the transcript and made note every time testimony was repeated. The resulting chart was so useful, Gunn said, that she presented it during oral argument.
Brockland and Washam said there almost no case law to help their argument, so they focused on the public policy problems that cumulative testimony poses.
“You can’t just name experts over and over again and basically buy your verdict,” Brockland said.
“Most of it was a justice argument,” Washam added.
The appellate court has since denied a request by the defense to rehear the case or to transfer it to the Missouri Supreme Court, though the defense could still ask the high court to take it directly. In the meantime, the all-female legal team has given judges a template for when to say enough is enough.
“I’m very proud of our girl power,” Gunn said.