Barcus v. The Phoenix Insurance Co.

Filing 87

MEMORANDUM AND ORDER granting 79 Motion to Strike Plaintiff's Rebuttal Expert Report. Signed by Magistrate Judge Kenneth G. Gale on 8/17/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIAM LANE BARCUS,

)
)
Plaintiff,
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v.
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)
THE PHOENIX INSURANCE
)
COMPANY,
)
)
Defendant.
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___________________________________ )

Case No. 17-2492-JWL-KGG

ORDER GRANTING DEFENDANT’S MOTION TO STRIKE
PLAINTIFF’S REBUTTAL EXPERT REPORT
Defendant moves to strike the disclosure of Plaintiff’s rebuttal expert, Dr.
Abrams. Defendant’s argument is essentially that because Dr. Abrams’ opinions
are relevant to Plaintiff’s primary claims rather than to the defense expert
disclosures, the disclosure of his opinions should have been made during Plaintiff’s
initial expert disclosures, not as a rebuttal expert.
This motion requests enforcement of the rules for disclosing expert witness
testimony during the discovery phase of a law suit. Federal Rule of Civil
Procedure 26(a)(2) specifies the required content of expert disclosures and
provides that the court set a time line for disclosures. The rule specifically
provides that absent a court order setting a different time, expert disclosures
“intended solely to contradict or rebut evidence” presented in another party’s

disclosures may be made within 30 days after the other party’s disclosure.
Fed.R.Civ.P. 26(a)(2)(D). This definition of rebuttal evidence is at issue in this
case.
Pursuant to Rule 26, this Court issued Scheduling Orders specifying the time
and order of expert disclosures. (Docs. 10, 54). The Scheduling Order, issued with
the input and consultation of counsel, provided for the sequential disclosure of
expert evidence, beginning with Plaintiff, then Defendant, and followed by the
disclosure of “rebuttal experts.” The parties accomplished their disclosures within
the specified deadlines.
Defendant contends that Plaintiff’s rebuttal expert disclosure fails to qualify
as a rebuttal under Fed.R.Civ.P. 26(a)(2)(D) and, thus, should have been disclosed
with initial reports. The court agrees.
A proper rebuttal expert is “‘intended solely to contradict or rebut evidence
on the same subject matter identified by another party’” in its expert disclosures.
Estate of Hammers v. Douglas Co. Bd. of Comm’rs, No. 15-7994-DM, 2016 WL
6804905, at *1 (D. Kan. Nov. 16, 2016) (quoting Fed.R.Civ.P. 26(a)(2)(D)(ii)).
Stated another way, rebuttal evidence is “evidence which attempts to ‘disprove or
contradict’ the evidence to which it contrasted.” Tanberg v. Sholtis, 401 F.3d
1151, 1166 (10th Cir. 2005) (citation omitted).

Plaintiff, in response to this motion, lists topics which he claims were newly
raised in the defense disclosures and which were the subject of responses by his
rebuttal expert. These include (1) Plaintiff did not have a concussion; (2) if he had
one he has recovered; (3) his condition of vestibular disfunction is not caused by
the accident; and (4) the cause of Plaintiff’s problems is ADHD. The Court has
reviewed the report of the rebuttal expert (Doc. 79-9) and finds it to be no more
than an additional general opinion concerning injury and causation.
Whether Plaintiff had a concussion as a result of the accident and has
continuing symptoms are general issues in this case addressed by Plaintiff’s
primary experts. While the rebuttal expert does opine that Plaintiff suffers from
vestibular disfunction and that the condition contributes to plaintiff’s cognitive
defects, he does not opine that the condition was caused by the accident. There is
also no specific rebuttal to the analysis of ADHD, except to repeat that Plaintiff’s
conditions were caused by the accident. Dr. Abrams’ opinion is no more a rebuttal
to the defense experts than are Plaintiff’s primary experts. Adding another voice to
Plaintiff’s chorus of experts does not change the song.
Because Dr. Abrams’ opinion only supports Plaintiff’s primary contentions
and does not rebut any new elements of the defense expert claims, it is not
“intended solely to contradict or rebut evidence on the same subject matter
identified by another party” and, therefore, is not proper rebuttal. The disclosure,

being due at the time of Plaintiff’s primary expert disclosures, is thus stricken as
out of time.
Defendant’s motion is GRANTED. The expert disclosures relating to Dr.
Abrams are stricken.
IT IS SO ORDERED.
Dated this 17th day of August, 2018 at Wichita, Kansas.
S/ KENNETH G. GALE

Kenneth G. Gale
United States Magistrate Judge