The Propriety of Allowing Rebuttal Experts

Although the concept of rebuttal is simple, it is rarely so in practice. After the defense rests, most jurisdictions allow the plaintiff the opportunity to rebut new points introduced to the jury during the defendant's case. Courts unanimously agree that the decision to allow an expert to testify on rebuttal is a discretionary one, and we shall examine here the factors courts consider when determining the propriety of permitting a rebuttal expert witness to testify. There are few appellate decisions tackling the issue of rebuttal experts systematically; this is simply not a well-developed area of the law. Nevertheless, a survey of decisions around the country yields key insights regarding the considerations every trial lawyer must make when assessing the propriety of offering a rebuttal witness (as a plaintiff), or filing a motion to strike such a witness (as a defendant).

Despite the lack of consistency in reported cases considering whether to allow rebuttal experts, there is a general agreement on at least one proposition: Where an expert has been properly disclosed prior to trial, it is almost always an abuse of discretion for the court to deny the plaintiff an opportunity to present a rebuttal expert, at least where the proffered testimony is non-cumulative. One state appellate court has even recognized rebuttal testimony as a “matter of right” where new facts are introduced during the opponent's case. Teller v. Schepens, 518 N.E.2d 868, 870 (Mass. App. Ct. 1988). On the other hand, no such right exists to present rebuttal evidence for the sole purpose of supporting a party's affirmative case. Id. Accordingly, most courts agree that the purpose of rebuttal expert testimony is to address new matters brought during the defense's case-in-chief rather than to “bolster the plaintiff's case-in-chief.” Id. at 871. In the absence of timely disclosure, however, courts have applied various factors in reaching conclusions regarding the admissibility of rebuttal experts.

Rebuttal Testimony: A Duty To Preempt Defenses?

One recurring issue considered by courts assessing the propriety of rebuttal experts is whether such testimony is cumulative; and similarly, whether it should have been dealt with earlier in the plaintiff's case-in-chief. For example, in Heberling v. Fleisher, 563 So. 2d 1086, 1087 (Fla. Dist. Ct. App. 1990), the trial court erroneously denied plaintiff's request to present a neurosurgeon as a rebuttal expert. The decedent in Heberling was involved in an automobile accident and suffered substantial brain injuries. Alleging medical malpractice, plaintiff's counsel claimed the decedent bled to death due to the negligent treatment of decedent's ruptured spleen after the crash. In contrast, the defense suggested that the decedent's death was caused by injuries from the collision itself, not as the result of medical malpractice. At trial, the plaintiff sought to rebut this defense by proffering expert testimony refuting that the brain trauma from the crash itself was sufficient to cause the death. The trial court excluded the plaintiff's rebuttal expert. In reversing the court's exclusion of the proffered neurosurgeon's testimony, the Florida District Court of Appeals noted that the rebuttal “was not cumulative, since no evidence of its subject matter had been offered by the plaintiff prior to the presentation by the defense of the brain damage theory.” In other words, the plaintiff was simply disputing new evidence offered during the defense's case-in-chief.

Importantly, the appellate court in Heberling discussed an additional point that appears to cause repeat confusion among the lower courts. The trial court partly based its denial of plaintiff's rebuttal witness on the grounds that the plaintiff should have addressed the defense's theory during plaintiff's case-in-chief. The appellate court agreed that denial of a rebuttal witness is ordinarily not an abuse of discretion; however, this exclusion presented special significance. Here, the court ruled that a plaintiff is under no obligation to “disprove all anticipated defenses in its main case ' that is exactly what rebuttal is supposed to accomplish.” Id. (emphasis added). In argument, the defense pointed out that the plaintiff already knew through depositions that the defense would claim brain damage as the cause of death. Thus, so the defense argued, the plaintiff should have preemptively rebutted the known defense during plaintiff's case-in-chief. In rejecting this reasoning, the Heberling court recognized that parties to a lawsuit are allowed to use some element of tactic and strategy in constructing a case.

In sum, there is a certain logical force in not requiring a plaintiff to preemptively address every anticipated defense of a case. Such a rule would place a heavy burden on plaintiffs' attorneys to first determine, and then disprove, any and all potential defenses. Consequently, trials would be longer and juries potentially more confused.

The Need for Disclosure And Exceptions to Disclosure

Due to the liberal nature of the discovery process in our judicial system, whether a party discloses a rebuttal expert prior to trial can have a profound impact on a court's analysis in determining the propriety of that witness. While many states do not have rules precisely tracking the Federal Rules, the practice of disclosure of rebuttal experts in federal courts is clear and unambiguous. Disclosures must be made for any expert testimony “intended solely to contradict or rebut evidence ' within 30 days after the other party's [expert] disclosure.” FED. R. CIV. P. 26(a)(2)(D)(ii). Not only is the requirement of expert disclosure found in the
Federal Rules of Civil Procedure (and similarly in many state court rules), but courts also have the authority to require parties to disclose all potential expert witnesses prior to trial ' even rebuttal witnesses.

Where plaintiff's counsel seeks to admit the testimony of a rebuttal expert not disclosed prior to trial, “the issue hinges on whether the evidence sought to be rebutted could reasonably have been anticipated before trial.” Turner v. Nelson, 872 P.2d 1021, 1024 (Utah 1994) (citation omitted) (internal quotation marks omitted). Courts generally prohibit plaintiff's rebuttal absent good cause for non-disclosure where testimony to be rebutted could reasonably have been anticipated. Id. In Turner, the Supreme Court of Utah examined the propriety of an undisclosed rebuttal witness, finding that the trial court did not abuse its discretion in prohibiting rebuttal where the testimony to be rebutted was “foreseeable.” Turner involved a negligence action arising out of an automobile accident, yet its principles regarding non-disclosure are equally applicable to medical malpractice trials.

In Turner, the plaintiff sought to introduce rebuttal testimony opposing the defense's claim that the collision was caused by an obstructed stop sign. The court rejected the plaintiff's argument that the defense obstruction theory was a “surprise,” finding instead that the testimony to be rebutted could reasonably have been anticipated. Importantly, the court created a burden of proof for the plaintiff to affirmatively show facts demonstrating that it could not reasonably have anticipated the defense it sought to rebut. The plaintiff failed, however, to provide copies of depositions, answers to interrogatories, or other evidence to support the claim that the defense's evidence was new and could not be unanticipated by plaintiff's counsel. In fact, the record in Turner suggested that the defendant testified in discovery to the very point the plaintiff sought to rebut. In sum, the Turner court was persuaded that the plaintiff either knew or should have known of an obvious defense theory, and thus, should have disclosed potential rebuttal witnesses.

In other instances, plaintiffs may properly call undisclosed rebuttal witnesses where the testimony to be rebutted came as a genuine surprise. In Dennis v. Haden, 867 S.W.2d 48, 51 (Tex. App. 1993), plaintiff's counsel was reasonably surprised by the need for a rebuttal witness, and the court found that such surprise demonstrated good cause for allowing the testimony of an undisclosed expert rebuttal witness. Dennis was a wrongful death action resulting from the alleged medical malpractice of the plaintiff's physician in reading EKG results. The parties were required by court order to disclose expert reports for those experts that would testify at trial. The trial court allowed the defendant's expert to testify even though the expert did not produce a report. Relying on the absence of a report from the defense, plaintiff's counsel did not designate the witness it sought to enter at trial pursuant to a court order requiring the designation of witnesses. The appellate court found that testimony of the plaintiff's undisclosed expert should have been allowed to rebut portions of the defendant's testimony, reasoning that the plaintiff had a right to rely on the implication created by the absence of an expert report from the defendant: that the particular defense expert would not be called at trial.

While Dennis demonstrates the exception for allowing the testimony of a witness where a party failed to designate or disclose a witness prior to trial, it is paramount to remember that the exception comes with a caveat. The need for the undisclosed witness must come as a surprise to plaintiff's counsel, and plaintiff's counsel must be able to show that they were in fact surprised by the defense's testimony.

Strategic Considerations

As one of the most highly technical areas of litigation, trying a medical malpractice case requires a heightened standard of diligence on the part of counsel, for both plaintiffs and defendants alike. The use, disclosure, or exclusion of rebuttal experts is no exception. When assessing the propriety of the use of a rebuttal expert, trial lawyers should carefully weigh the factors discussed above.

As a threshold consideration, testimony presented on rebuttal should not be cumulative. The Heberling court demonstrates that rebuttal testimony should be allowed where it is aimed at refuting new issues or defenses raised in the defendant's case. In other words, plaintiffs need not prepare their case-in-chief with an eye toward preemptively rebutting all known defenses. In contrast, it will likely be fruitless to proffer expert rebuttal testimony where the subject of the testimony was already thoroughly addressed in the plaintiff's main case. As defense counsel, a sharp examination of the testimony presented at trial should put counsel on notice as to the appropriate times to object to plaintiff's proffered rebuttal testimony; namely, when the rebuttal to the specific defense argument has already been addressed in plaintiff's case-in-chief.

Conclusion

The driving principles behind the cases discussed here are those of fairness and equity. Indeed, the structure of the discovery process is intended to eliminate surprise in order to promote a genuine search for the truth. Thus, it makes sense for courts to apply a more stringent test where a party seeks to admit the testimony of a non-disclosed expert rebuttal witness. When disclosure obligations exist, by rule or order, the plaintiff must have been surprised by the testimony sought to be rebutted or it will likely be excluded. Similarly stated by the courts, the testimony must not have been “reasonably anticipated prior to trial.”

Rebuttal testimony has the power to save a plaintiff's case, especially if a defendant brings harmful new evidence during its case-in-chief. Diligence, preparation and an understanding of case law will go far in ensuring an attorney's best possible handling of rebuttal expert witnesses.

James R. Moncus III, a member of this newsletter's Board of Editors, is an attorney at Birmingham, AL's Hare, Wynn, Newell & Newton. Kathleen Bowers is a third-year law student.

Although the concept of rebuttal is simple, it is rarely so in practice. After the defense rests, most jurisdictions allow the plaintiff the opportunity to rebut new points introduced to the jury during the defendant's case. Courts unanimously agree that the decision to allow an expert to testify on rebuttal is a discretionary one, and we shall examine here the factors courts consider when determining the propriety of permitting a rebuttal expert witness to testify. There are few appellate decisions tackling the issue of rebuttal experts systematically; this is simply not a well-developed area of the law. Nevertheless, a survey of decisions around the country yields key insights regarding the considerations every trial lawyer must make when assessing the propriety of offering a rebuttal witness (as a plaintiff), or filing a motion to strike such a witness (as a defendant).

Despite the lack of consistency in reported cases considering whether to allow rebuttal experts, there is a general agreement on at least one proposition: Where an expert has been properly disclosed prior to trial, it is almost always an abuse of discretion for the court to deny the plaintiff an opportunity to present a rebuttal expert, at least where the proffered testimony is non-cumulative. One state appellate court has even recognized rebuttal testimony as a “matter of right” where new facts are introduced during the opponent's case. Teller v. Schepens , 518 N.E.2d 868, 870 (Mass. App. Ct. 1988). On the other hand, no such right exists to present rebuttal evidence for the sole purpose of supporting a party's affirmative case. Id. Accordingly, most courts agree that the purpose of rebuttal expert testimony is to address new matters brought during the defense's case-in-chief rather than to “bolster the plaintiff's case-in-chief.” Id. at 871. In the absence of timely disclosure, however, courts have applied various factors in reaching conclusions regarding the admissibility of rebuttal experts.

Rebuttal Testimony: A Duty To Preempt Defenses?

One recurring issue considered by courts assessing the propriety of rebuttal experts is whether such testimony is cumulative; and similarly, whether it should have been dealt with earlier in the plaintiff's case-in-chief. For example, in Heberling v. Fleisher , 563 So. 2d 1086, 1087 (Fla. Dist. Ct. App. 1990), the trial court erroneously denied plaintiff's request to present a neurosurgeon as a rebuttal expert. The decedent in Heberling was involved in an automobile accident and suffered substantial brain injuries. Alleging medical malpractice, plaintiff's counsel claimed the decedent bled to death due to the negligent treatment of decedent's ruptured spleen after the crash. In contrast, the defense suggested that the decedent's death was caused by injuries from the collision itself, not as the result of medical malpractice. At trial, the plaintiff sought to rebut this defense by proffering expert testimony refuting that the brain trauma from the crash itself was sufficient to cause the death. The trial court excluded the plaintiff's rebuttal expert. In reversing the court's exclusion of the proffered neurosurgeon's testimony, the Florida District Court of Appeals noted that the rebuttal “was not cumulative, since no evidence of its subject matter had been offered by the plaintiff prior to the presentation by the defense of the brain damage theory.” In other words, the plaintiff was simply disputing new evidence offered during the defense's case-in-chief.

Importantly, the appellate court in Heberling discussed an additional point that appears to cause repeat confusion among the lower courts. The trial court partly based its denial of plaintiff's rebuttal witness on the grounds that the plaintiff should have addressed the defense's theory during plaintiff's case-in-chief. The appellate court agreed that denial of a rebuttal witness is ordinarily not an abuse of discretion; however, this exclusion presented special significance. Here, the court ruled that a plaintiff is under no obligation to “disprove all anticipated defenses in its main case ' that is exactly what rebuttal is supposed to accomplish.” Id. (emphasis added). In argument, the defense pointed out that the plaintiff already knew through depositions that the defense would claim brain damage as the cause of death. Thus, so the defense argued, the plaintiff should have preemptively rebutted the known defense during plaintiff's case-in-chief. In rejecting this reasoning, the Heberling court recognized that parties to a lawsuit are allowed to use some element of tactic and strategy in constructing a case.

In sum, there is a certain logical force in not requiring a plaintiff to preemptively address every anticipated defense of a case. Such a rule would place a heavy burden on plaintiffs' attorneys to first determine, and then disprove, any and all potential defenses. Consequently, trials would be longer and juries potentially more confused.

The Need for Disclosure And Exceptions to Disclosure

Due to the liberal nature of the discovery process in our judicial system, whether a party discloses a rebuttal expert prior to trial can have a profound impact on a court's analysis in determining the propriety of that witness. While many states do not have rules precisely tracking the Federal Rules, the practice of disclosure of rebuttal experts in federal courts is clear and unambiguous. Disclosures must be made for any expert testimony “intended solely to contradict or rebut evidence ' within 30 days after the other party's [expert] disclosure.” FED. R. CIV. P. 26(a)(2)(D)(ii). Not only is the requirement of expert disclosure found in the
Federal Rules of Civil Procedure (and similarly in many state court rules), but courts also have the authority to require parties to disclose all potential expert witnesses prior to trial ' even rebuttal witnesses.

Where plaintiff's counsel seeks to admit the testimony of a rebuttal expert not disclosed prior to trial, “the issue hinges on whether the evidence sought to be rebutted could reasonably have been anticipated before trial.” Turner v. Nelson , 872 P.2d 1021, 1024 (Utah 1994) (citation omitted) (internal quotation marks omitted). Courts generally prohibit plaintiff's rebuttal absent good cause for non-disclosure where testimony to be rebutted could reasonably have been anticipated. Id. In Turner, the Supreme Court of Utah examined the propriety of an undisclosed rebuttal witness, finding that the trial court did not abuse its discretion in prohibiting rebuttal where the testimony to be rebutted was “foreseeable.” Turner involved a negligence action arising out of an automobile accident, yet its principles regarding non-disclosure are equally applicable to medical malpractice trials.

In Turner, the plaintiff sought to introduce rebuttal testimony opposing the defense's claim that the collision was caused by an obstructed stop sign. The court rejected the plaintiff's argument that the defense obstruction theory was a “surprise,” finding instead that the testimony to be rebutted could reasonably have been anticipated. Importantly, the court created a burden of proof for the plaintiff to affirmatively show facts demonstrating that it could not reasonably have anticipated the defense it sought to rebut. The plaintiff failed, however, to provide copies of depositions, answers to interrogatories, or other evidence to support the claim that the defense's evidence was new and could not be unanticipated by plaintiff's counsel. In fact, the record in Turner suggested that the defendant testified in discovery to the very point the plaintiff sought to rebut. In sum, the Turner court was persuaded that the plaintiff either knew or should have known of an obvious defense theory, and thus, should have disclosed potential rebuttal witnesses.

In other instances, plaintiffs may properly call undisclosed rebuttal witnesses where the testimony to be rebutted came as a genuine surprise. In Dennis v. Haden , 867 S.W.2d 48, 51 (Tex. App. 1993), plaintiff's counsel was reasonably surprised by the need for a rebuttal witness, and the court found that such surprise demonstrated good cause for allowing the testimony of an undisclosed expert rebuttal witness. Dennis was a wrongful death action resulting from the alleged medical malpractice of the plaintiff's physician in reading EKG results. The parties were required by court order to disclose expert reports for those experts that would testify at trial. The trial court allowed the defendant's expert to testify even though the expert did not produce a report. Relying on the absence of a report from the defense, plaintiff's counsel did not designate the witness it sought to enter at trial pursuant to a court order requiring the designation of witnesses. The appellate court found that testimony of the plaintiff's undisclosed expert should have been allowed to rebut portions of the defendant's testimony, reasoning that the plaintiff had a right to rely on the implication created by the absence of an expert report from the defendant: that the particular defense expert would not be called at trial.

While Dennis demonstrates the exception for allowing the testimony of a witness where a party failed to designate or disclose a witness prior to trial, it is paramount to remember that the exception comes with a caveat. The need for the undisclosed witness must come as a surprise to plaintiff's counsel, and plaintiff's counsel must be able to show that they were in fact surprised by the defense's testimony.

Strategic Considerations

As one of the most highly technical areas of litigation, trying a medical malpractice case requires a heightened standard of diligence on the part of counsel, for both plaintiffs and defendants alike. The use, disclosure, or exclusion of rebuttal experts is no exception. When assessing the propriety of the use of a rebuttal expert, trial lawyers should carefully weigh the factors discussed above.

As a threshold consideration, testimony presented on rebuttal should not be cumulative. The Heberling court demonstrates that rebuttal testimony should be allowed where it is aimed at refuting new issues or defenses raised in the defendant's case. In other words, plaintiffs need not prepare their case-in-chief with an eye toward preemptively rebutting all known defenses. In contrast, it will likely be fruitless to proffer expert rebuttal testimony where the subject of the testimony was already thoroughly addressed in the plaintiff's main case. As defense counsel, a sharp examination of the testimony presented at trial should put counsel on notice as to the appropriate times to object to plaintiff's proffered rebuttal testimony; namely, when the rebuttal to the specific defense argument has already been addressed in plaintiff's case-in-chief.

Conclusion

The driving principles behind the cases discussed here are those of fairness and equity. Indeed, the structure of the discovery process is intended to eliminate surprise in order to promote a genuine search for the truth. Thus, it makes sense for courts to apply a more stringent test where a party seeks to admit the testimony of a non-disclosed expert rebuttal witness. When disclosure obligations exist, by rule or order, the plaintiff must have been surprised by the testimony sought to be rebutted or it will likely be excluded. Similarly stated by the courts, the testimony must not have been “reasonably anticipated prior to trial.”

Rebuttal testimony has the power to save a plaintiff's case, especially if a defendant brings harmful new evidence during its case-in-chief. Diligence, preparation and an understanding of case law will go far in ensuring an attorney's best possible handling of rebuttal expert witnesses.

James R. Moncus III, a member of this newsletter's Board of Editors, is an attorney at Birmingham, AL's Hare, Wynn, Newell & Newton. Kathleen Bowers is a third-year law student.