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Christensen v. Munsen2/10/1994
of expressing his facts as to what he did in his treatment, but if you are going to offer opinions as to causation or standard of care, then he is your expert and you have called him.
Report of Proceedings (June 24, 1991), at 14. Plaintiff contends that pursuant to this order, both parties could call only one expert to testify as to causation or standard of care, and that the defense violated the order by allowing two experts to testify regarding the cause of her glaucoma. She also contends that, pursuant to its orders, the court should have barred other duplicative expert testimony.
The defense responds that if this is a proper reading of the court's order, then plaintiff violated it as well, since two of her experts offered causation testimony. Furthermore, in her designation of witnesses, plaintiff noted her intent to question three of her experts about the standard of care and two about the defendant's treatment of her glaucoma.
Under the plaintiff's current reading, such testimony would clearly violate the court's order regarding expert testimony.
It makes more sense to view the court's order regarding Dr. Mills in its proper context; that is, as a decision to allow Dr. Mills to serve as the defendant's glaucoma expert instead of Dr. Drance, the glaucoma expert initially designated. In keeping with her original ruling of one expert per specialty issue, the judge on June 24 was informing the defense that if it called Dr. Mills, he was its one expert on glaucoma -- on its cause and on the defendant's role in its development. Thus, multiple testimony regarding causation and standard of care would not violate the court's order if it came from different specialty area experts, which it did in this case.
[4, 5] The admissibility and scope of an expert's testimony is a matter within the court's discretion. Bruce v. Byrne-Stevens & Assocs. Eng'rs, Inc., 113 Wash. 2d 123, 130, 776 P.2d 666 (1989); Orion Corp. v. State, 103 Wash. 2d 441, 462, 693 P.2d 1369 (1985). Similarly, the admissibility of cumulative evidence lies within the trial court's discretion. Mullin v. Builders Dev. & Fin. Serv., Inc., 62 Wash. 2d 202, 206, 381 P.2d 970 (1963); Sons of Norway v. Boomer, 10 Wash. App. 618, 620-21, 519 P.2d 28 (1974). The specialty areas in this case were highly technical and also interrelated. The trial court may have deemed some cumulative testimony helpful to the jury's understanding of the issues, and some similar responses may have been unavoidable given the fact that several ophthalmologists testified. In any case, both parties' witnesses produced overlapping testimony to a limited extent, and the court did not abuse its discretion in allowing such testimony.
In a related argument, plaintiff contends that the court erred in allowing Dr. Mills to testify because the defendant originally chose Dr. Drance as his glaucoma expert. Plaintiff claims she was prejudiced by the defendant's switch to Dr. Mills on the first day of trial.
Plaintiff made the same argument when the trial court ruled that Dr. Mills could testify as a defense witness. The
court responded that she had known of the possibility of Dr. Mills testifying when the defense took his deposition in March, almost 3 months before the trial started on June 24. While plaintiff did not then fully examine the doctor, there was no indication that she renoted the doctor's deposition or was unable to conduct informal discovery with Dr. Mills. On April 10, a defense attorney i
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