Court of Appeals Rules on Scope of Rebuttal Testimony

Last Thursday I posted about improper supplemental reports and a failed attempt to get around an improper supplemental report by recasting it as a rebuttal report.  Nevada’s Court of Appeals also recently touched on this topic.

Las Vegas Paving Corp. v. Coleman[1] was an appeal from an order granting a new trial.  At trial, the district court had permitted Las Vegas Paving’s accident reconstructionist, Brian Jones, to testify as a rebuttal expert.  Las Vegas Paving stated his “testimony would rebut an animation prepared by Coleman’s own accident reconstruction expert.”  Some of the rebuttal testimony had been appropriately disclosed.  However, “that a portion of Jones’ testimony (specifically, his theory that the timing intervals of a nearby traffic light precluded the possibility that a LVP truck was involved in the collision) had never been previously disclosed during discovery pursuant to NRCP 16.1.”  Las Vegas Paving argued the opinion was not within the scope of NRCP 16.1 because it “was proffered as rebuttal evidence in response to animations created by Coleman’s experts….”  The court did not include further detail about this argument.  I wish it had because it is unclear to me how any form of expert testimony could be outside the state court’s disclosure rules.

Regardless, the animations at issue “were limited to depicting the physics of the collision between Coleman and the truck.”  “Part of Jones’ trial testimony did challenge the validity of the animation’s presentation of the physics of the collision” and was appropriate.  However, the testimony exceeded the scope of what had been disclosed when it offered an “alternative theory of causation for the collision wholly outside of any theory advanced by Coleman: that the available GPS data, coupled with the light cycle of the nearby traffic signal, excluded the possibility that a LVP truck caused the collision.”  To be a rebuttal opinion, this opinion had to be something that Plaintiff brought up first.  However that theory was not “referenced in any way within the animations prepared by Coleman’s expert witness.”  Consequently, Las Vegas Paving should have disclosed Mr. Jones’ opinion about the timing of the lights as an initial expert disclosure.  It had not, so it should not have been admitted and the order granting a new trial was appropriate.

[1] No. 66242, 2016 Nev. App. Unpub. LEXIS 9; 2016 WL 327753 (Jan. 25, 2016).