United States District Court, D. Colorado
ORDER DENYING PLAINTIFFS' “FURTHER
MOTION” TO EXCLUDE EXPERT TESTIMONY
WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE
This
lawsuit arose from a bicycle accident that caused significant
injuries to Plaintiff Michael Olivero. According to Olivero,
the fork on the front of his bicycle spontaneously and
catastrophically failed due to what must have been, he
believes, a manufacturing defect. He and his wife, Plaintiff
Angela Olivero (together, the “Oliveros”), sue
Defendant Trek Bicycle Corporation (“Trek”) on a
theory of product liability.[1] Trial is currently set to begin
on July 30, 2018. Currently before the Court is the
Oliveros' “Further Motion to Exclude
Defendant's Rebuttal Expert, Mr. Bretting, as a Witness
at Trial” (“Motion”). (ECF No. 111.)
Depending
on how one counts, this Motion is at least the Oliveros'
third attempt to exclude Bretting's expected expert
witness testimony. Cf. Olivero v. Trek Bicycle
Corp., 2018 WL 3102811, at *1 (D. Colo. June 25, 2018)
(ECF No. 96) (denying the Oliveros' Rule 702 motion to
exclude Bretting's opinions); Olivero v. Trek Bicycle
Corp., 291 F.Supp.3d 1209, 1215-16 (D. Colo. 2017) (ECF
No. 84) (mostly denying the Oliveros' claim that
Bretting's report presented improper rebuttal opinions).
The Oliveros' current challenge runs as follows: (i) this
Court ruled that, save for one opinion that the Court
excluded, Bretting's expert opinions are proper rebuttal
opinions; but (ii) the Oliveros have now elected not to call
their expert, Braden Kappius, whose opinions Bretting's
testimony is intended to rebut; therefore (iii)
Bretting's expected testimony must likewise be excluded,
since he now has nothing to rebut.
Circumstances
may exist in which the party proffering and then withdrawing
an affirmative expert might prevail on such an argument.
Imagine, for example, a breach of contract dispute where the
plaintiff has been claiming future lost profits, and has
proffered an expert to calculate those damages. The defendant
has proffered a rebuttal expert criticizing the affirmative
expert's calculations and offering an alternative
calculation. If the plaintiff abandons its claim for future
lost profits, then the defendant's rebuttal expert's
testimony would probably become inadmissible because it would
be irrelevant, not because the expert had been
proffered under the “rebuttal” label. Indeed, the
expert could have produced a preemptive report on the
affirmative expert deadline (compare Federal Rule of
Civil Procedure 26(a)(2)(D)(i) with 26(a)(2)(D)(ii))
and his or her testimony would still likely be inadmissible
as irrelevant. It would no longer address a matter that is
“of consequence in determining the action.”
Fed.R.Evid. 401(b).
The
situation presented here is not precisely analogous. The
Oliveros have not abandoned any portion of their case. They
have only “abandoned” a particular witness who
might have supported their theory of the case, which remains
the same (spontaneous failure due to latent manufacturing
defect). In other words, there is still a theory to rebut,
even if an affirmative expert will not testify in support of
that theory.
There
is no rule that, at trial, a rebuttal expert may testify only
in response to an affirmative expert's trial testimony.
Indeed, with some frequency the Court sees one party
presenting its theory without expert testimony and
the opposing party challenging that theory with
expert testimony.
Moreover,
this is a different matter from the question of when the
expert-proffering party was required to disclose the
expert's opinions under Rules 26(a)(2)(D)(i) and (ii).
Whether the expert is properly considered a “rebuttal
expert” for purposes of judging timeliness of
disclosure under Rule 26(a)(2)(D) has nothing necessarily to
do with whether the admissibility of that expert's
opinions at trial turns on some other expert testifying
first.
As
applied to this case, it certainly would have been an
interesting scenario if the Oliveros had let the affirmative
expert disclosure deadline pass without disclosing
Kappius's opinions. Trek probably would have been left
with no way, procedurally speaking, to disclose
Bretting's report (and therefore his trial testimony)
absent modification of the scheduling order. But, as it
happened, the Oliveros did disclose Kappius's
opinions and Bretting's rebuttal report offered, for the
most part, proper rebuttal in light of the opinions Kappius
actually rendered. See 291 F.Supp.3d at 1215-16.
In
short, the Court finds that the Oliveros' choice to
present their case without expert testimony is not
dispositive of whether Trek can defend through testimony of
an expert properly disclosed under Rules 26(a)(2)(D) as a
rebuttal expert. The Oliveros intend to prove the same theory
that Kappius would have presented through his opinions, and
so Bretting's opinions continue to have a “tendency
to make a fact [of consequence] more or less probable than it
would be” otherwise. Fed.R.Evid. 401(a) & (b). For
these reasons, the Oliveros' Further Motion to Exclude
Defendant's Rebuttal Expert, Mr. Bretting, as a Witness
at Trial (ECF No. 111) is DENIED.
---------
Notes:
[1] The Oliveros recently abandoned their
other theories of liability. (See ECF No. 114 ...