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State Litigation Trends: Expert Witness Standard in New Jersey

Stephen Gomez

Written by
— Updated on February 15, 2018

NJ expert witnessIn medical malpractice cases, the depositions and testimonies of expert witnesses are a critical component. In New Jersey, two recent cases by the state’s courts may change the standard by which certain medical practitioners will be allowed to testify in the future.

According to an article on NJ.com, a recent decision limits the practitioners available to testify in future medical malpractice cases.[1] In the case, an internist with a subspecialty in hyperbaric medicine was allowed as an expert witness against the defendant doctors (a family physician and an emergency medicine physician). The defendants were being sued for their treatment of the plaintiff, Edward Nicholas, a construction contractor who had suffered carbon monoxide poisoning. On appeal, the New Jersey Supreme Court ruled that the trial judge erred in allowing the opinion of the internist, as she did not specialize in either of the same fields as the treating physicians.

Justice Barry Albin, in his opinion, stated that while the Patients First Act of 2004 was specifically tailored to limit the increase in medical malpractice insurance premiums, the law did not allow an internist to testify about the standard of care exercised by a physician or physicians practicing a different specialty.

This case is important to contrast with an earlier decision in a New Jersey appellate panel, which ruled that a trial judge erred in limiting the number of expert witnesses allowed in a medical malpractice suit.[2] In the case, the decedent, Kevin McLean, developed an infection after a stabbing. The decedent’s family claimed a breach in the standard of care by the treating, emergency medicine physician. The trial judge ruled that each side was only allowed one expert witness. The decedent’s family, in addition to an expert on the treating physician, however, wanted an expert to discuss the emergency medical procedure. The jury ruled in favor of the hospital, but a three-judge appeals panel ruled for a new trial, stating that no laws or rules give a trial judge “authority to balance the number of witnesses.”[3]

NJ.com went on to quote the Superior Court Judge Victor Ashrafi, who stated, “The testimony that plaintiff wished to present went to the heart of her case: whether defendant deviated from the accepted standard of care for an emergency department physician…Although a second expert would have taken more time at the trial, it might have been time well-spent.”[4]

So what does all of this mean? Essentially, New Jersey is in a spot that most states are familiar with: balancing efficiency and elements of relevancy and reliability. According to numerous studies, New Jersey is one of the busiest states in terms of medical malpractice suits.[5] Given their relative size, however (at least compared to their larger neighbors Pennsylvania and New York), this creates a flood of cases into the legal system. [e1] As such, New Jersey is frequently trying to find ways to expedite the legal process, while still exercising principles of due process. In the McLean case, the judge tried to limit the number of experts in order to save time. In some cases, courts may spend multiple days with one or two experts, and the trial judge was clearly trying to avoid this circumstance. Ultimately, however, the appellate panel ruled that the trial judge had gone too far, and issues of fairness came into play.

On the other hand, the issue in the Nicholas case was the need for a relevant expert. While there are a number of elements that need to be discussed during any complex case, most courts have to draw a line somewhere on what experts can be brought in. This speaks to the relevancy requirement inherent in all witnesses brought in to provide testimony. By specifying the specialties that an expert must have, the court determined the balance that they felt would be best. New Jersey, as well as other states, will continue to wrestle with this issue as litigation and expert witness needs evolve.

Overall, the recent cases highlight the importance of finding a relevant and reliable expert witness as efficiently as possible. With different cases shifting the exact requirements, the terms “reliable” and “relevant” may have to be fluid, which means it is even more critical to perform an appropriate expert witness search. In our experience at The Expert Institute, we believe the best way to find an expert witness for an attorney is to take a multi-faceted approach that considers all factors of the case. This includes jurisdictional requirements and any litigation trends. By doing so, we are able to find the best expert for each circumstance.


[3] Id.

[4] Id.