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Limiting Expert Witnesses

  • By: Robert Klein

Anyone involved in business litigation or a business litigation attorney who practices in this area has been faced with an opponent who lists several expert witnesses on their expert witness designation. The statute requires each side to list the experts they intend on calling at trial. In this designation, each attorney is required to give a general description of the testimony each listed expert will provide.

Often times an attorney will list experts whose opinions overlap. The problem is the other side will be forced to take these depositions and will be required to pay the experts stated hourly rate. By listing multiple experts is often times designed to place financial pressure on the opponent.

When faced with this problem, the business litigation attorney must promptly move for a protective order. This is an order where you ask the court to force the other side to limit their expert witnesses.

California Evidence Code section 723, states :“the court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party.”

This rule was also discussed in South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 85 Cal.Rptr.2d 301 where the court stated that on this record, the trial court acted within its discretion in excluding the second expert witness’s testimony as cumulative. As the court properly observed, South Bay’s designation of expert witnesses indicated the scope of the second expert witness’s anticipated testimony was a ‘duplicate’ of the subject matter covered by the first expert witness.

Even when not identical a “second expert will be excluded if ‘there’s a substantial overlap’ in the two experts’ testimony and that the second expert’s testimony would be covering ground already covered by the first expert witness.” Cases have held the “court in its discretion may limit the number of witnesses who may be called upon to testify with reference to a single question, as here, and the court can refuse to receive evidence which is purely cumulative.”

Robert Klein

About the Author Attorney Robert Klein is a former CPA and known for
finding creative solutions to complex business lawsuits.