Commercial Litigation and Arbitration

Multi-Party Cases — Right to Cross-Examine Experts of Parties Aligned in Interest

The interesting issue in Kominar v. Health Mgmt. Assocs. of W. VA., Inc., 2007 W. Va. LEXIS 51 (W. Va. Sup. Ct. June 7, 2007) was whether each party aligned in interest (here, each defendant) had an absolute right to cross-examine expert witnesses put on the stand by a co-party (another defendant), or whether the court was vested with the discretion to limit ‛cross“ of this sort. The West Virginia Supreme Court held that ‛cross-examination is a matter of right only when a witness is called by a party whose interests in the litigation are adverse to the party seeking to cross-examine.“ It observed that:

It would be virtually impossible to try complex multi-party litigation if every party had the unbridled right to cross-examine witnesses called by every other party on issues not related, or only tangentially related, to the witness' testimony in chief. We, therefore, hold that trial courts should carefully examine whether an adversarial relationship exists between co-parties at the time a motion to limit cross-examination is raised in order to avoid the danger of prejudice, confusion, or delay.

The principal authorities relied on by the Kominar Court are: Klingbeil v. Truesdell, 98 N.W.2d 134, 140 (Minn. Sup. Ct. 1959); Thompson v. Curators of Univ. of Mo., 488 S.W.2d 617, 620 (Mo. Sup. Ct. 1973); and Jensen v. Logan City, 83 P.2d 311, 316 (Utah Sup. Ct. 1938).

Compare ABA Civil Trial Practice Standard 16 (1998):

Multiple Parties & Questioning. In a case involving multiple parties, the court should encourage the parties to cooperate in, coordinate, and streamline, the presentation of evidence and the making of objections, and it should be receptive to their efforts to do so. Unless the parties agree to the contrary, the court should permit each separately-represented party to develop the testimony of each witness, subject to reasonable time limitations and avoidance of repetition.

The Civil Trial Practice Standards are downloadable at:

Share this article:


Recent Posts