Recently, the Missouri Supreme Court in Shallow v. Follwell affirmed its permissive view of cumulative standard for experts. No. SC 96901 (Mo. Sept. 11, 2018). Put simply, a Missouri court will not exclude multiple experts who opine on a key issue based on cumulativeness alone.
In this wrongful death medical negligence case, Dr. Follwell offered four experts to testify on breach of the standard of care and causation for a bowel perforation: a general surgeon, a cardiologist, a vascular surgeon, and a colorectal surgeon. The circuit court allowed Dr. Follwell and his four experts to testify. On September 11, 2018, the Supreme Court of Missouri affirmed. In doing so, the court relied on Black v. State, 151 S.W.3d 49, 56 (Mo. banc 2004) and a string of earlier precedent:
Evidence is said to be cumulative when it relates to a matter so fully and properly proved by other testimony as to take it out of the area of serious dispute. . . [A circuit court] does not have discretion to reject evidence as cumulative when it goes to the very root of the matter in controversy or relates to the main issue, the decision of which turns on the weight of the evidence.
Under Shallow, when the issue is central to the case, Missouri law will allow some level of overlapping expert testimony. But does this mean that the floodgates are open for multiple experts at Missouri trials? Not quite. The Shallow Court cautions against a wholesale offering of repetitive expert testimony, noting that Dr. Follwell’s experts were all of different sub-specialties and added “their own parts” to understanding central issues in the case. “While expert witnesses testifying about the very root of the controversy have purpose and are not needlessly repetitive, such evidence remains subject to exclusion if the prejudicial effect of the testimony substantially outweighs the probative value.” Thus, the Court provides some mechanism for a party and the circuit court to limit multiple experts at trial.
In addition, the Court also addressed the all too familiar issue of the expert who offers an opinion for the first time at trial. While the Court affirmed the general rule that the party offering the expert has a duty to disclose new information and new opinions, this rule only applies when an expert “suddenly has an opinion where he had none before, renders a substantially different opinion than the opinion disclosed in discovery, uses new facts to support an opinion, or newly bases that opinion on data or information not disclosed during the discovery deposition.” Based on this standard, Follwell’s expert had, in fact, referenced his trial opinion during the deposition, albeit more generally, and admission at trial was affirmed.
Key lessons for the Missouri practitioner: Seeking to exclude multiple experts on the sole basis of the cumulative nature of their testimony is an uphill battle in Missouri. Instead, stress the unfair prejudice that results from needlessly cumulative testimony from experts of the same or similar disciplines. Emphasize that, regardless of whether the issue is central to the case, the experts offer the same perspective, not “their own parts” as in Shallow. At trial, remember that, to preserve this challenge, you must object at trial “after each question” that elicits the cumulative opinion, unless you object to the entirety of the testimony at the outset.
