The Nevada Court of Appeals recently ruled on the proper scope of rebuttal experts at trial. Carr v. Paredes was a tort case that produced a defense verdict that plaintiff appealed. On appeal, one of Carr’s arguments was the district court erred by allowing Paredes to call Derek Duke, M.D. as a rebuttal medical expert. This argument was rejected because Dr. Duke’s testimony remained within the proper scope of rebuttal testimony, as discussed elsewhere on this blog.
Here, Dr. Duke was designated during discovery to rebut the expected opinions of the treating physicians Carr designated. Both in his designation and at trial, Dr. Duke largely confined his testimony to the opinions offered by Carr’s treating-physician experts, Dr. Shang, Dr. Leon, and Dr. Grover, the scope and subject matter of whose testimony concerned: (1) the diagnosis, (2) treatment, (3) response, and (4) medical billing of Carr. Since Dr. Duke stayed within the scope and subject matter of Carr’s treating physicians’ expected and actual trial testimony, the district court did not abuse its discretion in allowing Dr. Duke to testify as a rebuttal expert.
Carr also argued the district court erred by not permitting surrebuttal testimony from his treating physicians. This argument was rejected. “Because Carr did not make an offer of proof respecting the proffered surrebuttal, and each of the proposed surrebuttal witnesses had already testified in Carr’s case in chief, it is unclear that their testimony on surrebuttal would not have been merely cumulative.”