Proper Use of Rebuttal Experts: Federal Orders

Since the first two posts this month focused on experts, I chose to make October Expert Witness Month. Its like Shark Week, but infinitely less cool. In October 2013 I wrote extensively about changes to the requirements for disclosing expert testimony in Nevada’s state courts. One post discussed why the rules were rewritten and a second post discussed the effective death of rebuttal experts as some had known them.

This post continues the discussion of rebuttal experts. To somewhat crudely summarize everything below, there is a very narrow window for appropriate rebuttal testimony. It is hard to hit. Can you accept being only able to argue to the jury that whatever the opposing party said is wrong, but without offering any alternative narrative of your own? If I was trying the case, that is not my first pick of strategies. It can be like an argument between two small kids. “Sally, your brother says you hit him, stole his toy truck and broke his crayons. Is that true?” If all Sally can say is “no,” without offering some alternative type of explanation, it may be hard for her to win. If you are in doubt, disclose the expert as an initial.

Nunez v. Harper, 2014 U.S. Dist. LEXIS 34343 (D. Nev. Mar. 11, 2014): Initial expert improperly disclosed as a rebuttal expert, but still permitted to testify as an initial.

The case concerned a car v. truck accident. The defendant disclosed its medical expert on the rebuttal expert disclosure deadline. Plaintiff moved to exclude arguing the expert was not a proper rebuttal expert. The parties and court relied upon case law discussed in my prior posts. The court first concluded the expert’s report was that of an initial expert.

Here, the Court finds that Downs is instructive. See Downs, 2014 U.S. Dist. LEXIS 26056, 2014 WL 814303. As discussed above, Defendants concede that “Dr. Duke produced his own list of diagnoses he concluded were related to the subject incident, and a separate list of diagnoses he determined were unrelated.” Docket No. 48, at 9. Thus, as was the case in Downs, “[u]nder the standard that the ‘function of rebuttal testimony is to explain, repel, counteract or disprove evidence of the adverse party’ (Marmo, 457 F.3d at 759) and is ‘limited to ‘new, unforeseen facts brought out in the other side’s case” (Cates, 928 F.2d at 685),” it is difficult for the court to view Dr. Duke as a legitimate rebuttal expert. See Downs, 2014 U.S. Dist. LEXIS 26056, 2014 WL 814303, at *5.
Dr. Duke sets forth a number of his own theories, including what he believes to be the primary source of Plaintiff’s pain. Although some minor portions of his report do directly contradict Plaintiff’s expert, he goes beyond mere rebuttal and he diagnoses Plaintiff with: “(1) severe anxiety; (2) severe depression; (3) psychological factors affecting her medical condition; (4) pain complaints out of proportion to objective findings; (5) inconsistent historian; (6) history of low back pain in 2010; (7) cervical spondylosis; and (8) lumbar spondyosis.” See Docket No. 48, at 5. Rebuttal experts are not allowed to put forth their own theories; instead, “they must restrict their testimony to attacking the theories offered by the adversary’s experts.” Downs, 2014 U.S. Dist. LEXIS 26056, 2014 WL 814303, at *5, (citing R & O Constr. Co., 2011 U.S. Dist. LEXIS 78032, 2011 WL 2923703 at *2). Thus, it is clear from Dr. Duke’s report that he has failed to appropriately limit his report.

The court also concluded the defendant could and should have foreseen the need for this testimony as part of his initial disclosures.

Additionally, whether Plaintiff’s alleged medical conditions are related to the subject accident and whether she needs future medical treatment are the central issues of this entire litigation. Therefore, Dr. Duke’s opinions on these issues are not opinions on “new, unforeseen facts brought out in the other side’s case,” rather, they set forth the alternate theory that the motor vehicle accident is not the sole or main cause of Plaintiff’s pain.

The court then had to decide if defendant’s disclosure was justified or harmless. If not, Dr. Duke’s testimony would be excluded from trial. “Excluding expert testimony is not proper when there are other, less severe sanctions available. Thus, where the harm can be easily remedied, exclusion is not the proper sanction.” (citations and quotations omitted).

The court decided exclusion was not proper.

The reason behind why Plaintiff stipulated to the discovery extension, however, does not change the fact that discovery is not currently set to close for approximately two months. Thus, there is plenty of time for Plaintiff to depose and rebut Dr. Duke, and any surprise or prejudice suffered by Plaintiff is minimal. In addition, Plaintiff can still supplement her experts’ reports up until 30 days before trial pursuant to Fed.R.Civ.P. 26(e)(2). Next, because Plaintiff has suffered minimal prejudice and surprise, and discovery remains open for two months, there is ample opportunity to cure the prejudice. In regard to any disruption of the trial, the trial has not been set, discovery does not have to be reopened, and, other than the untimeliness of Dr. Duke’s report, Dr. Duke’s report has not caused any disruption in this case. See Downs, 2014 U.S. Dist. LEXIS 26056, 2014 WL 814303, at *7. Further, there is no evidence of bad faith or wilfulness on behalf of Defendants and, additionally, other sanctions are available to ameliorate any prejudice to Plaintiff.

The court did note, however, “Dr. Duke conceivably gained a tactical advantage by having access to Plaintiff’s experts’ reports before he prepared his opinions, the jury shall be informed that Dr. Duke’s report was prepared after and with the benefit of first having reviewed Plaintiff’s experts’ reports.”

Feador v. State Farm Ins. Mut. Auto. Co., 2014 U.S. Dist. LEXIS 37473 (D. Nev. Mar. 20, 2014). A change in circumstances could possibly justify a rebuttal expert.

This UM/UIM claim arose from a car accident. Plaintiff disclosed Andrew Cash M.D. as a treating physician. As this was in federal court and predated FCH1 (Fiesta Palms), I will not discuss whether that disclosure actually was a disclosure. Defendant disclosed two initial experts a biomechanical expert and Hugh Bassewitz M.D. as a medical expert. Additional discovery occurred after the initial designations and Dr. Bassewitz later issued a supplemental medical report. After the rebuttal expert deadline expired, plaintiff designated Dr. Cash as a rebuttal expert. This resulted in cross motions to strike the designation or modify the discovery scheduling order to accommodate this disclosure.

The court concluded the supplemental discovery had changed Dr. Bassewitz’ opinions and Plaintiff could not have reasonably foreseen the need for rebuttal testimony.

Plaintiff received Dr. Bassewitz’s supplemental report on February 28, 2014, and, in a matter of twelve days, was able to review it and provide a rebuttal. Dr. Bassewitz’s supplement was a proper supplement; however, he does take a completely contrary opinion from his original report on the causation of Plaintiff’s injuries, which is a central issue to this case. Thus, it is reasonable that Plaintiff did not anticipate the need for a rebuttal expert report until after she received the supplemental report. Plaintiff acted promptly upon reviewing Dr. Bassewitz’s supplement and, therefore, was diligent.

The court also concluded this situation constituted excusable neglect to permit Plaintiff to utilize Dr. Cash as a rebuttal expert.

Goben v. Wal-Mart Stores, Inc., 2014 U.S. Dist. LEXIS 81442, 2014 WL 2736088 (D. Nev. June 16, 2014): Initial expert improperly disclosed as rebuttal expert; expert struck except for narrow excerpt that was proper rebuttal.

The case arose from a slip and fall at a Wal-Mart. Wal-Mart filed a third-party complaint against a roofing service (“NAR”) and alleged NAR negligently performed roofing services that in turn caused the roof to leak. The leak then created a wet floor and the customer fell. NAR disclosed a roofing expert (Cecchi) as an initial expert. Wal-Mart disclosed a roofing expert (Orchard) only as a rebuttal and NAR moved to strike that designation.

Rebuttal experts are not allowed to put forth their own theories; instead, “they must restrict their testimony to attacking the theories offered by the adversary’s experts.” Id.

Applying these standards to the present case, Orchard’s reports lack the specificity required of rebuttal reports. The cause of the roof leak is central to this case. Instead of directly addressing Cecchi’s findings, Orchard spends the majority of his reports explaining what he believes caused the leak.

Orchard’s report only referenced NAR’s expert once. That reference “states that Cecchi is incorrect as to his belief that the mechanical unit caused the leak, but it does not expound as to why Cecchi is incorrect. Instead, Orchard develops a competing theory as to the cause of the leak. Orchard opines that faulty work from N.A.R. near the expansion control joint caused the leak.”

Wal-Mart had an opportunity to disclose a roofing expert, but it chose not to do so. In response to N.A.R.’s disclosure of a roofing expert, Wal-Mart disclosed Orchard as a rebuttal expert. Orchard’s report goes far beyond simply trying to discredit or explain Cecchi’s findings, and instead focuses on an alternative theory of causation.

Orchard moves beyond attacking the theory offered by Cecchi, and thereby exceeds the limitations set for rebuttal experts.

The court did not exclude Orchard entirely. It instead restricted his testimony to pure rebuttal, but did not elaborate as to what was included within that definition. My guess is it included only the one reference to NAR’s expert report. It would seem difficult to prove the validity of the third-party complaint without an initial expert.

Baker v. State Farm Mut. Auto. Ins. Co., 2014 U.S. Dist. LEXIS 81451 (D. Nev. June 16, 2014).: Initial expert improperly disclosed as rebuttal expert; expert struck except for narrow excerpt that was proper rebuttal.

State Farm disclosed Dr. Schifini as an initial expert. Plaintiff disclosed Dr. Gross as a rebuttal expert. State Farm moved to strike. State Farm won all but a small portion of the motion.

First, Baker [Plaintiff] concedes that only part of Dr. Gross’s report is dedicated to rebutting Dr. Schifini’s testimony. Baker states: “Dr. Gross specifically addresses Dr. Schifini’s report line by line on page 16 of 19.” This concession is confirmed by the court’s review of Dr. Gross’s report. Only one page—page sixteen—responds to Dr. Schifini’s report. For instance, pages one through eight of Dr. Gross’s report discuss Baker’s medical history and Dr. Gross’s independent examination of Baker. Pages nine through seventeen discuss Dr. Gross’s opinion regarding his own independent review of Baker’s pevious examinations and medical records. Of these pages, paragraph eighteen, which appears on pages sixteen and seventeen, responds to Dr. Schifini’s report. The rest of the report discusses Dr. Gross’s independent medical opinion. Accordingly, the majority of the report is not rebuttal testimony, as required by Federal Rule of Civil Procedure 26(a)(2)(D)(ii).

The court granted the motion and struck the entire report, except for the single paragraph that was appropriate rebuttal testimony.

Slagowski v. Cent. Wash. Asphalt, 2014 U.S. Dist. LEXIS 89323 (D. Nev. July 1, 2014): Defendant discloses a proper rebuttal expert.

In this trucking case, plaintiffs disclosed trucking expert Grill as an initial expert. One defendant disclosed a rebuttal trucking expert, Miller. Plaintiffs moved to strike Miller.

They first argued Miller’s report exceeded the scope of Grill’s report. The court disagreed.

Here, the subject matter of Grill’s report is whether the Central Washington drivers (i.e., Hannon, Wentland, and Goldsmith) “operated their vehicles dangerously and caused this accident.” Grill concludes that the Central Washington drivers did. Miller contradicts this conclusion, stating that Zemke “largely contribut[ed]” to the accident. In support, Miller proffers the following facts: (1) Zemke was speeding and (2) Zemke failed to see Hannon until Zemke’s wife altered him to Hannon’s presence. This satisfies Rule 26(a)(2)(D)(ii). This is sufficient. See Luschen, 614 F.2d at 1170 (“‘The function of rebuttal is to explain, repel, counteract or disprove evidence of the adverse party,’ and the decision to admit rebuttal testimony ‘is entrusted to the sound discretion of the district court.'”).

The court also rejected two other, minor procedural arguments. The fourth, that Miller’s report did not reference Grill by name, was also rejected.

[Plaintiffs] appear to argue that that Miller’s report should be stricken because only paragraph six of Miller’s report mentions Grill by name. This argument is also unpersuasive. While mentioning an initial expert by name signals that the rebuttal expert is responding to the initial expert, there is no such formal requirement that the rebuttal expert identify the initial expert by name. As discussed throughout, the key question is whether the rebuttal expert addresses the same subject matter. Luschen, 614 F.2d at 1170; In re Piasecki, 745 F.2d at 1472.

Monroe v. Davis, 2014 U.S. Dist. LEXIS 107445, 2014 WL 3845121 (D. Nev. Aug. 4, 2014): Initial expert improperly disclosed as a rebuttal expert.

This was a trucking case. The initial expert disclosures were due April 10, rebuttal expert disclosures on May 9.

On April 10, 2014, Plaintiff disclosed Stan Smith, Ph.D, and William Morrison, as expert witnesses, but failed to produce an expert report from either one. On May 9, 2014, Plaintiff disclosed Andrew Cash, M.D., as an expert rebuttal witness. Plaintiff also indicated that he intended to name Eddie LaRue as an “investigator/surveillance expert.” Discovery closed in this matter on June 9, 2014.

As a preliminary matter, the court struck the Smith and Morrison designations for failure to provide a written report. “Plaintiff has not met his burden to demonstrate that the failure to include an expert report in his disclosure of Dr. Smith as an expert witness was ‘harmless’ or ‘substantially justified.'” It also struck the designation of an Eddie LaRue, also for failure to provide a written report. Plaintiff’s opposition? “Plaintiff provides an affidavit from Mr. LaRue to support Plaintiff’s position that the failure to provide a rebuttal expert witness report was justified because Mr. LaRue ‘had prior commitments that prevented him from getting involved earlier.'”

It then moved to Dr. Cash, who was disclosed on the rebuttal witness deadline. It first concluded Dr. Cash was actually an initial expert. “Dr. Cash’s report does not address any of the opinions offered by Defendants’ expert, nor is Dr. Cash’s opinion on the reasonableness and necessity of Plaintiff’s medical treatment limited to facts which were unforeseen at the time of the deadline for initial expert disclosures.”

Whether Plaintiff’s alleged medical condition is related to the subject accident and whether he needs future medical treatment are the central issues of this entire litigation. Therefore, Dr. Cash’s opinions on these issues are not opinions on “new, unforeseen facts” brought out in the other side’s case. Id. Although Dr. Cash and Defendants’ expert’s reports address the same general subject matter of the case, Dr. Cash’s report does not directly address the findings, i.e. “the same subject matter,” of Defendants’ expert’s reports. Therefore it is not a rebuttal expert report within the meaning of Fed. R. Civ. P. 26(a)(2)(C)(ii).

Although Dr. Cash was an initial, not rebuttal, exclusion is not automatic. The court must evaluate whether the improper disclosure was substantially justified or harmless. It apparently concluded the error was harmless, noting “this situation can be ‘easily remedied’ by opening discovery for the limited purpose of allowing Defendants to depose and rebut Dr. Cash.” No trial date had yet been set. However, “Dr. Cash conceivably gained a tactical advantage by having access to Defendants’ experts’ reports before he prepared his opinions; the jury shall be informed that Dr. Cash’s report was prepared after and with the benefit of first having reviewed Defendants’ experts’ reports.”

Calvert v. Ellis, 2014 U.S. Dist. LEXIS 110624, 2014 WL 3897949 (D. Nev. Aug. 8, 2014): Defendants properly disclose rebuttal experts, with minor exceptions.

This case also arose from a trucking accident. January 13, 2014 was the initial expert disclosure deadline, February 12 the rebuttal expert deadline. Plaintiff disclosed experts with the initial disclosure deadline. Defendant only disclosed experts with the rebuttal deadline.

The court first concluded the defense medical cost estimator was actually an initial expert.

Dr. Schneider’s report does not address any of the opinions offered by Plaintiff’s experts, nor is Dr. Schneider’s opinion on the reasonableness of Plaintiff’s medical bills limited to facts which were unforeseen at the time of the deadline for initial expert disclosures. Thus, as was the case in Downs, “[u]nder the standard that the function of rebuttal testimony is to explain, repel, counteract or disprove evidence of the adverse party … and is limited to new, unforeseen facts brought out in the other side’s case,” it is difficult for the Court to view Dr. Schneider as a legitimate rebuttal expert.

Given that Defendants have already admitted liability in this case, the issue of whether Plaintiff’s medical bills are reasonable is one of the central features of this entire litigation. Therefore, Dr. Schneider’s opinions on these matters are not opinions on “new, unforeseen facts” brought out in the other side’s case, as the medical bills were a part of discovery long before expert reports were due. Although Dr. Schneider and Plaintiff’s experts’ reports address the same general subject matter of the case, Dr. Schneider’s report does not directly address the findings, i.e. “the same subject matter,” of Plaintiff’s experts’ reports. Therefore it is not a rebuttal expert report within the meaning of Fed. R. Civ. P. 26(a)(2)(C)(ii). … Dr. Schneider does not explicitly address Plaintiff’s experts’ findings, and does not offer any opinions on new, unforeseen facts brought out in the other side’s expert report; accordingly, Dr. Schneider’s report does not constitute rebuttal testimony

The expert was not struck as the error was harmless.

Here, the Court finds that, since Dr. Schneider was disclosed months before the close of discovery on July 11, 2014, time existed for Plaintiff to depose and rebut him, and any surprise or prejudice suffered by Plaintiff is minimal. In addition, Plaintiff can still supplement her experts’ reports up until 30 days before trial pursuant to Fed. R. Civ. P. 26(e)(2), and has, in fact, done so. Additionally, Plaintiff’s experts had the benefit of Dr. Schneider’s report before they were deposed and it appears as if Plaintiff has deposed Dr. Schneider. Next, because Plaintiff has suffered minimal prejudice and surprise, there is ample opportunity to cure the prejudice. In regard to any disruption of the trial, the trial has not been set and, other than the untimeliness of Dr. Schneider’s report, his report has not caused any disruption in this case. Further, there is no evidence of bad faith or wilfulness on behalf of Defendants and, additionally, other sanctions are available to ameliorate any prejudice to Plaintiff.

Plaintiff also moved to strike the defendant’s psychiatrist. The court concluded, however, the psychiatrist’s opinions were proper rebuttal opinions.

It is clear that Dr. Smith relied on Plaintiff’s initial expert reports in crafting his rebuttal report, and that his opinion regarding Plaintiff’s experts’ failure to consider Plaintiff’s medical history “contradict[s] or rebut[s] evidence on the same subject matter identified by another party” required by Fed. R. Civ. P. 26(a)(2)(D)(ii). As this Court noted in LaFlamme, rebuttal testimony is proper where it questions the “assumptions and methods” of an opposing initial expert.

Notably, Dr. Smith did not offer a theory of causation in his rebuttal report. Instead, “Dr. Smith questions the assumptions that Plaintiff’s medical experts rely upon in arriving at the conclusions expressed in their expert reports, and specifically opines that Plaintiff’s experts’ opinions all suffer from the ‘same glaring deficiency.’ Dr. Smith’s report is therefore a proper rebuttal report.” The section of his report criticizing Plaintiff’s vocational expert was also proper rebuttal.

The court then considered the motion to strike the defense economist and vocational expert. It noted most of the reports were pure rebuttal and appropriate. There were, however, sections that attempted to introduce new analysis to the case. Those sections were struck.

Cruz v. Durbin, 2014 U.S. Dist. LEXIS 117472 (D. Nev. Aug. 21, 2014): Defendant escapes a late initial expert disclosure.

This was a truck v. truck collision. The defendant driver suffered memory loss from it. April 23, 2014 was the initial expert disclosure deadline. On May 27, 2014 the defendant driver disclosed a neurologist as an initial expert to testify about his post-accident memory problems. Plaintiff moved to strike the disclosure as untimely. The motion was denied and alternative relief provided. Why?

“First, Cruz is not prejudiced or surprised by Durbin’s untimely disclosure. On the contrary, Cruz concedes that Durbin’s memory loss has been an issue for some time and that ‘Frecker does not add anything’ to Durbin’s defense but ‘credentials as a physician.'”

Second, the court is unpersuaded by Cruz’s argument that allowing Dr. Frecker to testify will unfairly permit Durbin to change the theory of his case. Cruz’s reliance on Durbin’s deposition testimony and answers to interrogatories refute this argument. If Durbin has repeatedly stated that he experienced memory loss, as Cruz argues, then Dr. Frecker’s testimony will not change the theory of Durbin’s defense. In any event, this action is in the midst of discovery. If discovery yields new facts—like the existence of a medical condition—then it is an appropriate time to change one’s theory of the case.

Third, Durbin’s untimely disclosure is harmless because discovery does not close until October. This provides Cruz with enough time to depose Dr. Frecker and challenge his expert report, which is less than two pages.

The court still imposed some sanction for the late disclosure.

Nonetheless, Durbin’s untimely disclosure is sanctionable. It will require Cruz to propound additional discovery and incur unexpected costs. This is prejudicial. Therefore, the court mitigates this prejudice by ordering Durbin to pay all reasonable expenses and costs associated with Dr. Frecker’s deposition, including Dr. Frecker’s fee for time spent preparing for and testifying at his deposition. This sanction is well within the ambit of sanctions contemplated by Federal Rule of Civil Procedure 37(c)(1).