Recalling an Expert Witness in ‘Rebuttal’

The plaintiff bears the burden of proof and, as such, has many advantages at trial. Plaintiff gets the first word during voir dire. Plaintiff first delivers its opening statement. Plaintiff presents its evidence first. And plaintiff gets the last word during closing arguments.

Plaintiff also may be permitted to present a “rebuttal” case upon the close of defendant’s evidence. Increasingly, plaintiffs are attempting to recall one or more experts in “rebuttal” to refute the evidence defendant presented during its case-in-chief.

The decision whether to permit plaintiff a rebuttal case, and, if so, which evidence to admit in rebuttal, lies within the trial court’s discretion. See,e.g., Weiss v. Chrysler Motors Corp., 515 F.2d 449, 457 (2d Cir. 1975); United States v. Sadler, 488 F.2d 434, 435 (5th Cir. 1974). Needless to say, permitting a plaintiff to recall an expert in “rebuttal” as a way to bolster its case, discredit defendant’s case, and have the last word, could be severely prejudicial to defendant. Thus, while the burden lies with plaintiff to demonstrate the admissibility of its proffered rebuttal evidence, it behooves the defendant to make a forceful case against admissibility of such evidence.

Rebuttal Evidence Is That For Which The Need Was Unforeseen

Rebuttal evidence – and in particular expert rebuttal evidence – is subject to stringent limitations on admissibility. First, the proffered testimony must truly “rebut” evidence presented in defendant’s case. See, e.g., Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 760 (8th Cir. 2006) (“IBP presented no evidence on medical causation, and therefore, there was no evidence for Dr. Meggs to rebut. Accordingly, the district court did not abuse its discretion in refusing to allow Dr. Meggs to testify in rebuttal.”). Second, the subject and content of the expert’s so-called rebuttal testimony must relate to topics that plaintiff could not have foreseen as being offered during defendant’s case-in-chief. See, e.g., id.; Faigin v. Kelly, 184 F.3d 67, 85 (1st Cir. 1999) (Rebuttal evidence is allowed “to permit a litigant to counter new, unforeseen facts brought out in the other side’s case.”); Braun v. Lorillard, Inc., 84 F.3d 230, 237 (7th Cir. 1996) (“The plaintiff who knows that the defendant means to contest an issue that is germane to the prima facie case (as distinct from an affirmative defense) must put in his evidence on the issue as part of his case in chief. Otherwise the plaintiff could reverse the order of proof, in effect requiring the defendants to put in their evidence before the plaintiff put in his.”); Skogen v. Dow Chem. Co., 375 F.2d 692, 705–06 (8th Cir. 1967) (affirming exclusion of purportedly rebuttal expert testimony where the issues on which the witness was proffered “were known to plaintiffs when they presented their case in chief”); Daly v. Far Eastern Shipping Co. PLC, 238 F. Supp. 2d 1231, 1238 (W.D. Wash. 2003) (“Rebuttal evidence is admissible only where the need for it could not have been foreseen at the time the plaintiff presented its case-in-chief. . . . When a party knows that a contested matter is in the case, yet fails to address it in a timely fashion, he scarcely can be heard to complain that the trial court refused to give him a second nibble at the cherry.”) (internal quotation omitted)).

This is often a difficult hurdle for plaintiff to jump. Defendant should, for example, identify the specific portions of plaintiff’s experts’ reports that address the issues plaintiff wishes to address in rebuttal. If the topics at issue were addressed in those reports, plaintiff will be hard-pressed to argue that the subject of the rebuttal was “unforeseen.” Similarly, an effort should be made to match defendants’ experts’ trial testimony to the content of their earlier reports. Again, when certain issues, opinions, and arguments were addressed in expert reports served months before trial, it will be difficult for plaintiff to argue that the subject of defendants’ experts’ testimony, which plaintiff now wishes to rebut, were “unforeseen.”

Additionally, assuming that the subject of the offered rebuttal testimony addresses issues at the heart of the case (e.g., specific causation in a case involving a personal injury alleged to have been caused by a prescription medication), identify for the court prior briefing in which plaintiff recognized its need to present evidence on the topic to satisfy its burden of proof. Prior court orders similarly identifying such issues are also helpful.

Rebuttal Evidence May Not Be Cumulative

In most instances, the so-called rebuttal testimony will be cumulative of the testimony the expert already offered during plaintiff’s case-in-chief. Such cumulative testimony should not be permitted in rebuttal. See, e.g., Evans v. Multnomah County, 492 F. App’x 756, 760 (9th Cir. 2012) (affirming exclusion of proffered rebuttal testimony that “would be cumulative of the testimony [plaintiff] presented in his case-in-chief”); Cates v. Sears, Roebuck & Co., 928 F.2d 679, 685 (5th Cir. 1991) (affirming exclusion of “rebuttal” testimony that “was merely revisiting evidence earlier presented,” but in “more detailed and comprehensive” fashion). Defendant should identify for the court specific passages of the expert’s earlier trial testimony that addresses topics and issues that overlap with that of the proffered rebuttal testimony. For example, if the expert previously testified about a particular epidemiological study, he or she should not be permitted to testify about that same study again in rebuttal, regardless of whether defendant’s experts also addressed that study.

Rebuttal Evidence May Not Be Used To Bolster Plaintiff’s Case

Plaintiff also may not use rebuttal evidence “merely to bolster the plaintiff’s case-in-chief.” Estate of Brutsche v. City of Fed. Way, 300 F. App’x 552, 553 (9th Cir. 2008); Marmo, 457 F.3d at 759 (stating that rebuttal evidence may not be used “to establish a case in chief”); Gossett v. Weyerhaeuser Co., 856 F.2d 1154, 1156–57 (8th Cir. 1988) (affirming exclusion of proffered “rebuttal” from expert that “should have been presented during the [plaintiffs’] case in chief”); Cates, 928 F.2d at 685 (“Rebuttal must be kept in perspective; it is not to be used as a continuation of the case-in-chief.”). As the Seventh Circuit Court of Appeals has explained, “when the point of completion of a trial has been reached … the trial judge [is] vested with substantial discretionary powers to bring the evidentiary phase to a close, or to put it another way, to curb the natural tendency of vigorous counsel to get in the final word.” United States v. Greene, 497 F.2d 1068, 1083 (7th Cir. 1974). In other words, as a general matter, plaintiff is not entitled to recall a witness simply to restate his or her opinions to contradict what defendants’ experts said. “Otherwise the plaintiff could reverse the order of proof, in effect requiring the defendants to put in their evidence before the plaintiff put in his.” Braun, 84 F.3d at 237.

Federal Rule 26 Confines the Scope of Rebuttal Opinion Testimony

For cases proceeding in federal court, Federal Rule of Civil Procedure 26(a)(2)(B) requires retained experts to disclose, among other things: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; and (ii) the facts or data considered by the witness in forming them. This requirement applies with equal force during plaintiff’s case-in-chief and rebuttal case. Thus, an expert cannot, under the guise of a rebuttal case, offer opinions – or facts/information in support of opinions – that the expert did not disclose properly during discovery.