Proper Use of Rebuttal Experts: State Orders

The first post this week discussed examples of when rebuttal experts had been properly utilized in federal cases. This post discusses three examples arising from Nevada’s state courts. Unfortunately, it is far more difficult to learn about these rulings than those in federal courts.

A-11-639548-C, 3/26/14: Defendant discloses initial really late, slides by.

Apparently the defendant disclosed a new medical expert on causation roughly 6 months after the expert deadline expired. Plaintiff moved to strike, but the trial date was January, 2015. DC Bulla denied the motion and revised all discovery deadlines to fit the trial date.

The expert will be deposed at Deft’s expense (fees / costs, Pltf’s reasonable airfare, taxi, and Pltf’s transcript); no attorney fees. Colloquy re: discovery deadlines. COMMISSIONER RECOMMENDED, discovery cutoff EXTENDED to 10/1/14; rebuttal expert disclosure DUE 7/1/14 (rebuttal to Dr. Karcher’s opinions re: causation if needed) ; FILE dispositive motions by 10/30/14; all other deadlines are CLOSED

A-13-674755-C, 5/23/14: Plaintiff discloses initial as a rebuttal, testimony is restricted.

This case concerned a he said, she said car collision in a parking lot. The defendant disclosed an accident reconstructionist as an initial expert. Plaintiff did not. Days before the rebuttal expert deadline, Plaintiff disclosed her own accident reconstructionist. Defendant moved to strike the report as untimely.

The motion was denied. Plaintiff conceded in the hearing that he “does not need a reconstructive expert in his case in chief to prove liability; he only needs a rebuttal expert.” As a consequence, DC Bulla ruled Plaintiff’s expert “is only permitted as a rebuttal expert in the event that Defts call their expert.” It was unclear whether the scope of the testimony from Plaintiff’s expert was limited to the comments in his report that were legitimately rebuttal, but presumably so.

A-12-668029-C, 7/30/14: Defendant discloses initial as a rebuttal, gets away with it.

This is a case in which I am involved (with at least one reader), but the motion did not concern my client. The case concerned product liability. One of the co-defendants disclosed no initial experts, only a single rebuttal expert who concluded the product was not defective. Plaintiff moved to strike the expert.

DC Bulla concluded the rebuttal expert was in fact an initial expert, however the motion was denied. Why? The case had a January, 2015 trial date, providing sufficient time for plaintiff to conduct the discovery needed for that expert. Discovery deadlines were adjusted to account for this development but the untimely expert was allowed to become an initial expert.