United States District Court, D. Nevada
GARY G. CAMPBELL, Plaintiff,
HEATHER GARCIA, Defendant.
ORDER re: Doc.#48
WILLIAM G. COBB, Magistrate Judge.
Before the court is Plaintiff's Motion to Strike Expert Designation or in the Alternative, Motion for Leave to Take Expert Deposition. (Doc. # 48.) Defendant has opposed (Doc. # 51) and pursuant to the direction of the court, filed an Errata (Doc. # 52). The court conducted a discovery conference on Plaintiff's motion on February 27, 2015, indicating the court has taken Plaintiff's motion under advisement and would be addressing and ruling on the motion in a subsequent formal order. (Doc. # 53.)
Having considered the filings of the parties and arguments of counsel, the court finds Defendant's expert, Dr. Betz, does not qualify as a rebuttal expert and Plaintiff's motion (Doc. # 48) is granted in part and denied in part, as explained herein..
The parties' Stipulated Discovery Plan and Scheduling order called for "FRCP 26(a)(2) expert disclosures to be made by December 19, 2014, and rebuttal expert disclosure to occur on or before January 19, 2015. (Doc. # 40 at 2.) Plaintiff served his two expert reports on December 18, 20115. (Doc. # 48 at 3.) Defendant apparently did not serve any initial expert disclosures, but on January 20, 2015, served what was entitled, "Defendant's Initial Expert Disclosure Pursuant to FRCP 26(a)(1)." (Doc. # 48-1.). Defendant identified "Jay E. Betz, M.D., CIME, CHCQ, FABQUAP" as her expert witness and attached Dr. Betz's report, Curriculum Vitae and fee schedule. ( Id. )
After Plaintiff filed his motion to strike Defendant's expert witness disclosure, or alternatively, seeking leave to take this expert's deposition (Doc. # 48), Defendant's counsel filed an "Errata" to Defendant's Expert Disclosure, identifying Dr. Betz as "Defendant's Rebuttal Expert Disclosure on February 9, 2015. (Doc. # 49; emphasis added.)
Plaintiff's motion to strike argues Dr. Betz is not a legitimate rebuttal expert and to the extent his report constitutes a general expert disclosure, it is untimely. (Doc. # 48.) Defendants' Opposition and Errata clarify Dr. Betz was disclosed solely as a rebuttal expert. (Docs. ## 51, 52.) Defendant states that upon receipt of Plaintiff's retained experts, Defendant "retained Dr. Jay Betz to review Plaintiff's medical records as well as the expert reports of Dr. Antonuccio and Dr. Song." (Doc. # 51 at 2.) Defendant submits that pursuant to his retainer, Dr. Betz reviewed Plaintiff's medical records and the Antonuccio and Song reports and, inter alia, provided an opinion contrary to that reached by Dr. Song. ( Id., at 3.)
Exhibit 1 to Defendant's Errata is the letter counsel sent to Dr. Betz confirming his retention to "perform a medical records review for [counsel] on the Plaintiff, Gary Campbell." Counsel's letter describes the accident which is the subject of this litigation and summarizes Plaintiff's injuries and medical treatment. In addition to providing the reports of Drs. Antonuccio and Song, counsel enclosed copies of extensive medical records. Counsel asked Dr. Betz:
I would appreciate it if you would provide a report of your opinion which comment on the records reviewed and your findings which specifically discuss the etiology of Mr.
Campbell's medical and emotional problems, and whether, based on your review of th submitted records, your clinical experience, and any applicable research, the need for any additional treatment is necessary."
(Doc # 52-1.)
Notably absent in counsel's letter of retention was any statement to Dr. Betz that he was being specifically retained to address and rebut the opinions of Plaintiff's identified experts, Dr. Antonuccio and Dr. Song. To be sure, counsel advised Dr. Betz that these two health care providers were identified as experts and their reports were provided Dr. Betz (along with almost 1, 000 pages of other medical records). However, there was no instruction to Dr. Betz that he was retained to rebut their opinions and conclusions. (Docs. ## 52, 52-1 at 2-3.)
STANDARD GOVERNING REBUTTAL EXPERT WITNESSES
As Defendant recognizes in his opposition, "[t]he function of rebuttal testimony is to explain, repel, counteract or disprove evidence of the adverse party.' Marmo v.Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006). Rebuttal evidence is used to challenge or counter the ...