On October 1, 2012 revisions to NRCP 16.1’s requirements for disclosing expert witnesses came into effect. I published an article on this blog and in the Communique at the time which discussed the changes. At the time, there were questions as to the practical impact of these changes upon pending cases. One year later, I believe some of these questions have been resolved whereas others have not. This will be a three part post. Today’s first post describes the how the rule changes came to be. Next week will discuss disclosing non-retained experts and the final post will discuss the perceived death of the rebuttal expert.
How Did We Get Here?
On October 26, 2011 a petition which became ADKT 472 was filed. The petition contained a memorandum signed by all three Discovery Commissioners urging changes to the treatment of expert witnesses. Why? To address discovery related problems each encountered.
Change 1: What is a Rebuttal Expert?
The petition first addressed several hypothetical problems defining when an expert is or is not appropriately a rebuttal expert. The memorandum then discussed how these same concerns had been addressed by the local federal courts. First LaFlamme v. Safeway, Inc., 2010 U.S. Dist. LEXIS 98815, 2010 WL 3522378 (D. Nev. 2010) and then Amos v. Makita U.S.A., Inc. I provide a link to the order because the citation provided, 2011 U.S. Dist. LEXIS 2729, 2011 WL 43092, is to another opinion in that case on a different topic.
LaFlamme concerned a plaintiff’s motion to strike a defendant’s expert designations. Plaintiff designated certain initial experts but the defendant designated only rebuttal experts. Plaintiff argued the defense experts should have been disclosed as initial experts and, therefore, should be struck. The court stated the standard for rebuttal expert testimony.
A rebuttal expert may only testify after the opposing party’s initial expert witness testifies. Lindner v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 636 (D. Hawaii 2008). Specifically, rebuttal expert testimony must address the “same subject matter” identified by the initial expert. Fed. R. Civ. P. 26(a)(2)(C)(ii); Lindner, 249 F.R.D. at 636. In other words, “‘[a] rebuttal expert report is not the proper place for presenting new arguments.'” Trowbridge v. United States, 2009 U.S. Dist. LEXIS 54416, 2009 WL 1813767 at *11 (D. Idaho June 25, 2009) (quoting Ebbert v. Nassau County, 2008 U.S. Dist. LEXIS 74213, 2008 WL 4443238 at *13 (E.D.N.Y. Sept. 26, 2008)(internal quotation marks omitted).
The court did not strike the rebuttal experts but did confirm they were limited to rebuttal testimony.
While it is true that defendants would not be permitted to designate rebuttal expert witnesses to introduce new testimony and opinions, a comparison of the initial and rebuttal expert witness reports reveals that the rebuttal witnesses address the initial experts’ assertions by questioning their assumptions and methods, not by presenting new facts about plaintiffs. The Federal Rules of Civil Procedure and this court’s discovery schedule anticipate such a response to initial expert witness reports. As long as defendant’s rebuttal expert witnesses speak to the same subject matter the initial experts addressed and do not introduce novel arguments, their testimony is proper under Federal Rule of Civil Procedure 26(a)(2)(C) and related case law from District Courts in this circuit. See Lindner, 249 F.R.D. at 636; Trowbridge, 2009 U.S. Dist. LEXIS 54416, 2009 WL 1813767 at *11.
The court concluded the rebuttal experts were proper rebuttal experts. “Contradicting expert opinions, questioning methodology, and opining on methods and facts plaintiffs’ experts did not consider are precisely the type of rebuttal testimony the court would expect.” At the end, LaFlamme simply restated what I thought was relatively clear case law: rebuttal experts may only rebut and may not introduce new opinions.
Amos was an insurance subrogation case arising from a fire loss. Plaintiff designated an initial expert blaming the defendant for the fire. The defendant disclosed no initial expert, but instead disclosed a rebuttal expert. Plaintiff moved to exclude the defendant’s rebuttal expert, arguing he should have been disclosed as an initial expert.
If the purpose of expert testimony is “to contradict an expected and anticipated portion of the other party’s case-in-chief, then the witness is not a rebuttal witness or anything analogous to one.” In re Apex Oil Co., 958 F.2d 243, 245 (8th Cir. 1992) (quoting Morgan v. Commercial Union Assur. Cos., 606 F.2d 554, 556 (5th Cir. 1979). The rebuttal date is not intended to provide an extension of the deadline by which a party must deliver the lion’s share of its expert information. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 571 (5th Cir. 1996). Rebuttal experts cannot testify in their parties’ case-in-chief. Lindner v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 636 (D. Haw. 2008). Rebuttal expert testimony is limited to presenting evidence that “is intended solely to contradict or rebut evidence of the same subject matter identified by an initial expert witness.” Lindner, 249 F.R.D. at 635-36 (quoting FED. R. CIV. P. 26(a)(2)(c).
The court reviewed the defendant’s expert report and concluded although parts of it did rebut the plaintiff’s expert, “he is not being called to rebut Plaintiff’s experts alone, but will be called to testify to a new, alternative theory of the fire’s origin – that the fire started because of ‘a faulty connection in the outlet located inside the kitchen cabinet south of the kitchen range.’” This opinion was that of an initial expert. The opinion was untimely, but the court did not exclude it, instead fashioning alternative relief.
The ADKT 472 petition asked the Court to effectively codify this case law via the adoption of what eventually became NRCP 16.1(a)(2)(C)(ii).
If the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), the disclosures shall be made within 30 days after the disclosure made by the other party. This later disclosure deadline does not apply to any party’s witness whose purpose is to contradict a portion of another party’s case in chief that should have been expected and anticipated by the disclosing party, or to present any opinions outside of the scope of another party’s disclosure.
Change 2: Disclosing Non-Retained, “No Report” Experts
The petition next recommended a change in the method of disclosing non-retained, no report experts. This most frequently concerns treating physicians in personal injury cases. What eventually became NRCP 16.1(a)(2)(B) largely mirrored the December, 2010 revisions to FRCP 26(a)(2)(C) concerning “no-report” experts. NRCP 16.1(a)(2)(B) states:
Unless otherwise stipulated or ordered by the Court, if the witness is not required to provide a written report the initial disclosure must state the subject matter on which the witness is expected to present evidence under NRS 50.275, 50.285 and 50.305; a summary of the facts and opinions to which the witness is expected to testify; the qualifications of that witness to present evidence under NRS 50.275, 50.285 and 50.305, which may be satisfied by the production of a resume or curriculum vitae; and the compensation of the witness for providing testimony at deposition and trial, which is satisfied by production of a fee schedule.
Why this change? An injured person who files a lawsuit might see multiple doctors to recover from her injuries. The petition highlighted several difficulties which the courts encountered because of ambiguity in the rule. The petition stated its proposed solution would solve these problems.
Including language that specifically requires a non-retained expert to disclose certain information will level the playing field. It will also assist the court in determining whether a treating physician’s testimony should be excluded for failure to disclose under the rule. Further, requiring parties to identify the opinions of their non-retained experts with specificity will eliminate the argument that a retained expert cannot rebut the opinions of a non-retained expert, because those opinions are now expressly subject to contradiction by a rebuttal expert.
I agreed up to this point. Then various interest groups got word of the proposed changes and the lobbying process began. Eventually DC Bulla Comments re ADKT 472 were filed, discussing the contentions of the various interest groups. As to non-retained, no report experts, two practical amendments were proposed and eventually adopted that permits the qualification disclosure requirement to be satisfied via a CV and the compensation requirement to be satisfied via a fee schedule.
Then three drafter’s comments were proposed. Each assumed a position concerning rather contentious points upon which there is a split of authority in the federal courts and elsewhere. Regardless of whether I believe the Supreme Court was wise to adopt those comments, that ship has sailed and the drafter’s comments are now codified.
From my perspective, only the third drafter’s comment remains troublesome in practice, primarily because it conflicts with language of the rule and federal case law interpreting the same language. The third comment stated “[a]n appropriate disclosure under the rule may include that the treating physician will testify in accordance with his or her medical chart, whether or not the records contained therein are prepared by the physician or by another healthcare provider.” I have twice expressed concerns about this comment, once in the Communique, once in public comments to a later ADKT petition about a similar topic. Regardless, the comment remains codified for the moment.
Now you know how we got here, in the next two weeks we will discuss the practical effect of these changes.