Legal Memorandum: Rebuttal Expert Testimony in US, UT, and CO

Issue: Does evidence that contradicts an opposing party evidence count as rebuttal expert testimony requiring a rebuttal report?

In a recent case where plaintiff’s treating physician was listed as a “rebuttal expert witness” the defendant objected to her testimony because no expert report was filed.  Taysom v. Bannock County 2013 *11 (D. Idaho July 1, 2013).  The court held that a treating physician may testify as to “opinions formed during the course of treatment without providing  a report.”  Id.  Without further elaboration or limitation, the court stated that, despite the absence of a report, as treating physician, “Dr. Reid may testify in Taysom’s case-in-chief, or as a rebuttal witness, or both.”  Id.

However “[a] witness whose purpose is to contradict an expected and anticipated portion of [the other party’s] case in chief can never be considered a rebuttal witness or anything analogous to one.”  In re Apex Oil Co., 958 F.2d at 245.  See Pandit v. American Honda Motor Co., Inc. 82 F.3d 376, 383 (10th Cir. 1996) (exclusion of proffered “rebuttal” evidence is proper when the evidence was available during plaintiff’s case-in-chief and defendant’s evidence not unexpected).  Indeed, “[c]ourts will disallow the use of a rebuttal expert to introduce evidence more properly a part of a party’s case-in-chief.  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.”  Stephenson v. Wyeth LLC 2011 *1 (D. Kan. Oct. 14, 2011).

Fed. R. Civ. P. […]