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The Propriety of Allowing Rebuttal Experts

By James R. Moncus III and Kathleen Bowers
July 31, 2012

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.

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