If you have read the past two posts, you know the history of the 2012 revisions and how it impacted the disclosure of non-retained experts. This third and final post in this series addresses the distinction between an initial and rebuttal expert codified in NRCP 16.1(a)(2)(C)(ii). To summarize, except in exceedingly rare circumstances, there are no more rebuttal experts.
This post will start first in the federal courts because that where the idea for NRCP 16.1(a)(2)(C)(ii) started.
Defense Experts Are Not, by Definition, Rebuttal Experts: Mabrey v. United States, 2006 U.S. Dist. LEXIS 49039, 2006 WL 1891127 (D. Nev. 2006)
Yes, this is a federal opinion that predated these rule changes by six years. It still illustrates the impact of these changes as it addresses one of the defense arguments I most frequently hear. Counsel claim it is plaintiff’s burden to prove their case and a defendant, by definition, only offers rebuttal evidence to something a plaintiff says. Therefore, a defendant never discloses an initial expert. This is probably wrong and could lead to difficulties.
Mabrey arose from what is known in medical malpractice as a “bad baby” case. In that context, the court assessed this argument.
Plaintiffs disclosed their expert witnesses prior to the expert witness disclosure deadline. Defendant did not disclose any experts by the April 19, 2006 deadline for initial expert witness disclosures, but did disclose … its expert witnesses on May 19, 2006, the last day to disclose rebuttal expert witnesses. Defendant’s experts have opined that the minor Plaintiff chiefly suffers from autism, which they state was not caused by the complications of his birth and the medical malpractice allegedly committed by Defendant’s physicians.
Plaintiffs move to exclude Defendant’s experts on the grounds that they should have been disclosed on or before the initial expert witness disclosure deadline of April 19, 2006 and were, therefore, not timely disclosed in compliance with the Stipulated Amended Discovery Plan and Scheduling Order (# 19) entered on March 3, 2006. Plaintiffs argue that Defendant’s expert witnesses are not rebuttal expert witnesses because their opinions are based on their independent review of the medical records and other evidence and were not drafted in response or rebuttal to the opinions of Plaintiffs’ experts. Plaintiffs also argue that Defendant’s experts’ opinions support Defendant’s affirmative defenses on which Defendant has the burden of proof and, therefore, should have been disclosed prior to the expert witness disclosure cut-off date of April 19, 2006. Defendant argues that it properly disclosed its experts by the rebuttal expert deadline, because, as the Defendant, it has no experts unless and until the Plaintiffs disclose their experts and Defendant then has the opportunity determine whether it needs to call experts to explain or rebut the opinions of Plaintiffs’ expert witnesses.
The court noted “absent a specific order providing otherwise, Rule 26(a)(2)(C) requires that expert witnesses on an issue or issues on which the parties respectively have the burden of proof, be simultaneously disclosed.” It also noted where a party believes a staggered expert disclosure deadline is appropriate, the party is free to file a motion seeking one.
In this case, Defendant’s counsel asserts that it has been her consistent practice to disclose defendant’s expert witnesses only at the rebuttal expert witness disclosure date. The Court’s experience, however, is otherwise. In most cases, the parties designate their experts on the initial disclosure date and, if necessary, provide supplemental expert reports by the rebuttal expert witness deadline to rebut the opinions of the opponent’s expert.
What did the court do?
Under Fed.R.Civ.Pro. 26(a)(2)(C) and LR 26-1(e)(3), Defendant was arguably entitled to disclose its expert witnesses on the rebuttal expert witness disclosure deadline if its experts’ opinions are intended solely to contradict or rebut evidence on the same subject matter by Plaintiffs’ expert witnesses and as to which Plaintiffs have the burden of proof. Because the Advisory Notes also indicate that in most cases the party with the burden of proof on an issue should disclose its expert testimony on that issue before other parties are required to make their disclosures, the Court will not exclude Defendant’s experts to the extent they are offered solely to rebut the opinions of Plaintiffs’ expert witnesses on the issue of causation of Plaintiff’s injuries or condition.
Because Defendant elected to only disclose its expert witnesses on the rebuttal expert witness disclosure date, however, Defendant’s expert witnesses will no be permitted to testify to any expert opinion regarding an issue on which Defendant has the burden of proof. For future reference, if Defendant or its counsel desire only to designate their expert witnesses after the plaintiff has disclosed its experts, this should be expressly stated in the discovery plan or scheduling order, or pursuant to an order obtained on motion.
In short, absent a staggered expert disclosure deadline, all disclosures are simultaneous. The court also rejected the “defense = rebuttal” argument. Unless you as a defendant are comfortable having your experts restricted to testifying only how the plaintiff’s experts are wrong without offering any alternative theory of your own, disclose your experts as initials. As discussed later, even when you are comfortable with that restriction, the court may strike your experts anyway.
A Rebuttal Expert May Only Rebut: R&O Constr. Co. v. Rox Pro Int’l Group, Ltd., 2011 U.S. Dist. LEXIS 78032 (D. Nev. 2011)
This federal case again directly illustrates the point. I do not have a Westlaw citation available, but am happy to post it if someone provides it. This was a claim by a general contractor against certain subcontractors arising from problems building a Home Depot.
Pursuant to Order (#45), initial expert disclosures and reports were due by November 10, 2010, and rebuttal experts were to be disclosed by December 13, 2010. [Plaintiff] disclosed its expert … on November 10, 2010. Defendants … did not designate experts at that time. On December 17, 2010, the court granted the parties’ Stipulation to Modify Discovery Plan and Scheduling Order (#52), which extended the date to designate rebuttal experts to January 10, 2011. Order (#54). Defendants … timely designated rebuttal experts on January 10, 2011. [Plaintiff] contends, however, that all or portions of the rebuttal expert reports do not in fact constitute rebuttal material; rather those reports contain materials and opinions that should have been presented in initial expert reports.
Plaintiff moved to strike the rebuttal experts.
The court restated its standard of review, which I suspect now matches that of Nevada’s state courts.
Fed. R. Civ. P. 26(a)(2)(C)(ii) permits the admission of rebuttal expert testimony that is “intended solely to contradict or rebut evidence on the same subject matter identified” by an initial expert witness. TC Sys. Inc. v. Town of Colonie, NY, 213 F.Supp.2d 171, 179 (N.D.N.Y. 2002). Rebuttal expert reports “necessitate ‘a showing of facts supporting the opposite conclusion’ of those at which the opposing party’s experts arrived in their responsive reports.” Bone Care Int’l, LLC v. Pentech Pharmaceuticals, Inc., 2010 U.S. Dist. LEXIS 104549, 2010 WL 389444 (N.D. Ill. Sep. 30, 2010) (quoting ABB Air Preheater, Inc. v Regenerative Environmental Equip., Inc., 167 F.R.D. 668, 669 (D.N.J. 1996). Rebuttal expert reports are proper if they contradict or rebut the subject matter of the affirmative expert report. Lindner v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 636 (D. Haw. 2008). They are not, however, the proper place for presenting new arguments. 1-800 Contacts, Inc. v. Lens.com, Inc., 755 F.Supp.2d 1151, 1167 (D. Utah 2010); see LaFlamme v. Safeway, Inc., 2010 U.S. Dist. LEXIS 98815, 2010 WL 3522378 (D. Nev. Sep. 2, 2010); cf. Marmo v. Tyson Fresh Meats, 457 F.3d 748, 759 (8th Cir. 2006) (“The function of rebuttal testimony is to explain, repel, counteract or disprove evidence of the adverse party.”) (citation omitted). “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'” Amos v. Makita U.S.A., 2011 WL 43092 at *2 (D. Nev. Jan. 6, 2011) (quoting In re Apex Oil Co., 958 F.2d 243, 245 (8th Cir. 1992)); see also Morgan v. Commercial Union Assur. Cos., 606 F.2d 554, 556 (5th Cir. 1979); LaFlamme, 2010 U.S. Dist. LEXIS 98815, 2010 WL 3522378 at *3. Rather, rebuttal expert testimony “is limited to ‘new unforeseen facts brought out in the other side’s case.'” In re President’s Casinos, Inc., 2007 Bankr. LEXIS 4804, 2007 WL 7232932 at * 2 (E.D. Mo. May 16, 2007) (quoting Cates v. Sears, Roebuck & Co., 928 F.2d 679, 685 (5th Cir. 1991)).
The court then went through a detailed analysis of the various expert reports and excluded certain of them.
While both McMullin’s [initial] and Hoff’s [rebuttal] reports address the same general subject matter of the case, Hoff’s report does not directly address the findings, i.e. “the same subject matter,” of McMullin’s report. Therefore it is not a rebuttal expert report within the meaning of Rule 26(a)(2)(C)(ii). See Vu v. McNeil-PPC, Inc., 2010 U.S. Dist. LEXIS 53639, 2010 WL 2179882 at *3 (C.D. Cal. May 7, 2010) (finding that such a broad meaning would all but nullify the distinction between an initial “affirmative expert” and a “rebuttal expert.”); see International Business Machines Corp. v. Fasco Indus., Inc., 1995 U.S. Dist. LEXIS 22533, 1995 WL 115421 (N.D. Cal. Mar.15, 1995) (“rebuttal experts cannot put forth their own theories; they must restrict their testimony to attacking the theories offered by the adversary’s experts.”). McMullin’s report offers opinions and conclusions regarding the structural insufficiency of the design for the installation of a stone veneer on the project, the requirement that the stone veneer installation be accomplished with an anchored system and the resulting irrelevance of the bond between stone and mortar, and R&O’s role in bringing potential design deficiencies to the attention of WD Partners. By comparison, Hoff’s report details theories regarding the failure of the stone and mortar, and makes observations regarding the “responsibilities” of the various players — general contractor/subcontractor and architect — with regard to installation. The report’s findings do not speak to “new unforeseen facts” brought out in McMullin’s report, see In re President’s Casinos, Inc., 2007 Bankr. LEXIS 4804, 2007 WL 7232932 at * 2; rather, they set forth an alternate theory, viz., that the stone failure is related to installation and mortar errors. Although causation may be demonstrated in various ways, “simply because one method fails, the other does not become “rebuttal.'” See Morgan v. Commercial Union Assur. Cos., 606 F.2d at 555. Nor is a rebuttal expert report the proper place for presenting new arguments. 1-800 Contacts, Inc. v. Lens.com, Inc., 755 F.Supp.2d at 1167.
Hoff was excluded because he was improperly designated and “because the time to designate rebuttal experts has passed, as well as the discovery cutoff and dispositive motion deadlines.” This same analysis was repeated for other experts and their non-rebuttal opinions were excluded.
A-11-634090-C: A Biomechanical Expert is an Initial Expert
On January 7, 2013 DC Beecroft interpreted the new state rule in an auto accident case. The defendant disclosed an accident reconstruction and biomechanical expert as an initial expert. The plaintiff then sought to examine defendant’s vehicle for the purpose of disclosing a rebuttal expert on this topic. Defendant refused and plaintiff filed a motion to permit this NRCP 34 examination.
Defendant opposed. He noted the accident occurred on July 17, 2010 and the complaint was filed on January 26, 2011. The opposition asserted plaintiff was aware that defendant would disclose a biomechanical expert as early as August, 2012 because defendant requested the opportunity for his expert to inspect plaintiff’s vehicle. As a result, defendant argued the biomechanical expert was an expected and anticipated portion of his case in chief. Plaintiff was thus required to designate her own biomechanical expert as an initial expert if she wished to present one at trial.
DC Beecroft agreed with defendant and not only denied the motion to compel an examination of defendant’s vehicle, but struck Plaintiff’s designation of a rebuttal biomechanical expert.
COMMISSIONER RECOMMENDED, Plaintiff’s Motion to Compel Examination of Defendant’s Vehicle and Extend Rebuttal Expert Witness Deadline is DENIED. FURTHER RECOMMENDED, Defendant Abram’s Counter Motion to Strike Plaintiff’s Expert Designation and Report of Dr. Joseph D. Peles is GRANTED. Discovery Commissioner notes the witness should have been disclosed in initial expert disclosure, not a rebuttal expert.
Plaintiff filed an objection with the district court to the ruling, however the district court affirmed on February 21, 2013.
A Pain Management Expert is an Initial Expert: A-10-625142-C
DC Bulla interpreted the rule on January 9, 2013. I happened to be in the audience awaiting another case. This was a medical malpractice case. One defendant designated a pain management physician as a rebuttal expert. Plaintiff moved to exclude him, arguing the expert should have been disclosed as an initial expert.
Discovery Commissioner indicated that based upon the rules change, Dr. Fish can testify as an initial expert because there are no initial opinions with respect to pain management, but not as a rebuttal, there being nothing to rebut. Arguments by counsel. COMMISSIONER notes in the event Plaintiff does not seek any life expectancy, work life expectancy, then, Dr. Fish is excluded entirely. COMMISSIONER RECOMMENDED, Plaintiff’s Motion to Exclude Defendant’s Rebuttal Expert is GRANTED In Part; DENIED In Part; DENIED with respect to Life Expectancy and Work Life Expectancy, and, any related sub-issues; GRANTED with respect to all of the Pain Management issues.
The hearing went further than this. DC Bulla commented that a pain management physician is, in nearly every case, an initial expert. Why? The plaintiff had a long history of preexisting pain for which she was treating. DC Bulla ruled the expert was initial because defense could have reasonably anticipated the need to address the causation element during their case in chief. In other words, the defendant should have known based upon discovery that plaintiff was in pain before the event, was in pain after the event and, as part of the case in chief, that they would need to have an expert on apportionment. Thus the need for an expert to address this treatment could be “anticipated” within the language of the rule.
The minute order does not reflect the second part of the hearing. Having concluded the pain management physician should have been disclosed as an initial expert, DC Bulla noted the court had no flexibility to “fix” this problem in this particular case. The case had a firm trial date of February 19, 2013, only five weeks after this hearing. As noted in Amos, if adequate time remained, the court could simply revise the discovery schedule and permit the defendant to fix the error. This then permits the plaintiff an appropriate opportunity to rebut and/or depose, preserving trial on the merits. However, five weeks from a firm trial setting was not enough.
A-10-631975-C: There is No Such Thing as a Rebuttal Expert
As proof that the impact of these rules is not clear cut, this was a case that I handled. A part broke on a bus and spilled fluid on the road, which led to an accident. The deadline for initial experts was October 2, the day after the new rule took effect. Plaintiff disclosed a medical expert and a standard of care expert who performed an accident reconstruction, or so I argued. I disclosed two medical experts as rebuttals who did not give any new diagnosis, they simply said the diagnosis was unrelated. I also disclosed two rebuttal standard of care experts because, frankly, there had been no discussion of it leading up to the disclosures. The part broke, that much was undisputed. Why would a standard of care expert be necessary?
Plaintiff moved to strike three of the four experts. I opposed and cited all the case law discussed in these posts about how rebuttal experts are permitted to rebut without offering any new opinions. This is what I argued my experts did. The district court disagreed and struck them. C’est la vie.
A-11-645440-C: Seriously, a Pain Management Expert is an Initial Expert
The pain management issue arose yet again at an April 10, 2013 hearing. Here, however, the plaintiff had disclosed her pain management treating physician as a rebuttal expert. The minutes are below, but because there was some time remaining before trial, instead of striking the expert, DC Bulla “fixed” the problem to preserve trial on the merits.
Commissioner advised counsel Dr. Lankowsky is not a rebuttal expert; counsel should have petitioned the Court for more time. Arguments by counsel. COMMISSIONER RECOMMENDED, motion is DENIED; alternative relief is PROVIDED; Dr. Lanzkowsky is an initial expert disclosed timely with a report; discovery cutoff EXTENDED to 6/10/13; adding parties, amended pleadings, and initial expert disclosures are CLOSED; rebuttal expert disclosures DUE 5/10/13; dispositive motions FILED by 5/28/13; 7/8/13 trial date STANDS. Upon Mr. Pettitt’s request, COMMISSIONER RECOMMENDED, Deft may send additional discovery, depose the experts, and after a 2.34 conference, bring a Motion if Deft needs a Rule 35 exam.
Is the rebuttal expert entirely dead? Not technically, but it is on life-support. Be wary of using them.