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A ‘Multiplicity of Experts’

That description of a recent Norfolk Circuit Court case on the court’s Web site sounds like those English class assignments on collective nouns: a pack of hounds, a congress of baboons, a charm of hummingbirds.

In fact, Judge Everett Martin Jr.’s Nov. 14 opinion confronted a collection of experts the parties wanted to bring to court in a med-mal suit alleging failure to diagnose Lyme disease.

The plaintiff in Smith v. Dixit had designated three experts – a treating internist and a treating family physician, as well as an internist/rheumatologist to testify about a breach in the standard of care.

The defendants countered with eight experts – two infectious disease experts, two rheumatologists, a neurologist, two neuropsychiatrists and a neuropsychologist.

A Virginia statute governing the number of experts in a med-mal case generally says that two non-treating experts per discipline is good enough, except for “good cause shown.” According to Martin’s opinion, the 2003 statute was intended to “adjust” a situation in which an “often impecunious” plaintiff hired only one expert witness and the defendant engaged “a battery of them, as here.”

Trial judges’ approaches to the issue vary, Martin says, with some trying to level the playing field by limiting a defendant to the same number of experts as the plaintiff, and other judges “taking a laissez-faire approach.”

Martin rejected straight parity, holding that the defendant in Smith could call three witnesses from his experts on infectious disease, rheumatology and neurology, and another two from the neuropsychiatry-neurology category.

“This should allow the defendants to cover fully the subjects in dispute,” the judge said.
By Deborah Elkins

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