Seriously, Defendants’ Experts are not Automatically Rebuttals

Several prior posts (here, here, here) discussed the proper scope for a rebuttal expert in federal courts and the misconception that defense experts are always rebuttals. They are not, as this post discusses once more.

In Campbell v. Garcia[1] only Plaintiff disclosed any initial experts by the deadline to do so. On the day after rebuttal disclosures were due, the Defendant disclosed Jay Betz, M.D. as a medical expert. Plaintiff moved to strike it as an improper initial expert; Defendant opposed and argued he was a proper rebuttal expert.

The initial retention letter to Dr. Betz was attached to the briefing. “Notably absent in counsel’s letter of retention was any statement to Dr. Betz that he was being specifically retained to address and rebut the opinions of Plaintiff’s identified experts, Dr. Antonuccio and Dr. Song.” Although their reports were provided to Dr. Betz as part of his review, there was no instruction to Dr. Betz that he was retained to rebut their opinions and conclusions.” I consider this “problem” meaningless as the retention letter is irrelevant, what really counts is what the expert says.

About that… “The Betz report did not directly address the findings of Plaintiff’s primary experts’ reports. … Instead, Dr. Betz’s report was a general summary of Plaintiff’s injuries, treatment and prognosis, with only passing reference to the opinions and conclusions of Drs. Antonuccio and Song.” “Dr. Betz himself characterizes his assignment and report not as addressing the conclusions and opinions of Plaintiff’s experts, but that he was under an evaluation of the case in general….”

In the 8 page expert report prepared by Dr. Betz, one paragraph is devoted to Dr. Antonuccio’s report and another paragraph summarizes Dr. Song’s report. Dr. Betz provides no commentary, analysis or rebuttal to Plaintiff’s expert’s reports in his “Discussion & Conclusions.” Instead, as noted above, he mainly provides a general overview of Plaintiff’s injuries and prognosis. His retention and report are matters which should have been identified with the first disclosure deadline.

Ok, so the report should have been disclosed 30 days earlier, no harm no foul? Not quite.

Conceivably the court could allow the Betz report to be considered as an initial expert disclosure and permit Plaintiff to depose Dr. Betz. But that analysis has to be taken one step further. If Dr. Betz were to be deposed, should Plaintiff then be entitled to submit rebuttal expert reports? If yes, should Defendant then be allowed to depose Plaintiff’s rebuttal expert(s)?

These considerations must be taken into account in light of the discovery deadline (February 16, 2015) which has now passed, and the rapidly approaching deadline for dispositive motions (March 18 2015) and the deadline for filing the joint pretrial order (April 17, 2015). The Discovery Plan and Scheduling Order (Doc. #40) was entered in this case in September and the deadlines, including those for expert and rebuttal experts, were known for months in advance of the deadlines.

If I was defense counsel, I’d be somewhat nervous at this point in the opinion. Ultimately, the court did not exclude Dr. Betz’s analysis from trial. Defendant could “utilize the Betz report, but only under certain conditions which are designed to ameliorate the fact Dr. Betz had the advantage of reviewing Plaintiff’s expert’s reports in advance of undertaking his own analysis.” Those conditions were

(1) Plaintiff may depose Dr. Betz, if desired.
(2) Plaintiff may retain one or more rebuttal experts to address Dr. Betz’s opinions and conclusions, if desired.
(3) Because Dr. Betz conceivably gained a tactical advantage by having access to the reports of Drs. Antonuccio and Song prior to preparing his report, the Jury shall be advised that Dr. Betz’s January 18, 2015 report was prepared after and with the benefit of first having reviewed the reports of Drs. Antonuccio and Song.

This did slightly extend discovery and the defendant still got to present Dr. Betz, however all of this could have been avoided by simply retaining Dr. Betz and disclosing him as an initial expert.

[1] 3:13-cv-00627, 2015 U.S. Dist. LEXIS 29354 (D. Nev., March 6, 2015).