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When is Expert Testimony Considered “Rebuttal” Testimony?

United States ex rel. Montcrieff v. Peripheral Vascular Associates – Part II

In this blog post, we review one of the issues in Montcrieff: the appropriate legal standard used to determine when an expert witness’s proposed testimony is rebuttal testimony, as opposed to testimony important to the offering party’s case-in-chief. 

Recall that in Montcrieff the Relators initiated a qui tam lawsuit against Peripheral Vascular Associates (“PVA”) under the False Claims Act for improperly billing the Medicare program.  Specifically, Relators allege that PVA billed Medicare for services before those services were complete, and that PVA billed Medicare for services that were never ordered by a doctor.  In order to prove or disprove improper billing practices, both sides came forward with statistical and Medicare billing experts. 

One such expert was Melissa Scott, an expert in statistics.  PVA provided Ms. Scott’s report after Relators served the report of expert statistician Dr. Zachary Nye.  Interestingly, the question of whether Ms. Scott’s report should be considered a rebuttal report came about because PVA was ostensibly late in filing Ms. Scott’s report.

Background on the Timing of Expert Filings

After Relators served Dr. Nye’s report on PVA, court rule provides that PVA had 15 days in which to serve a rebuttal report.  PVA, however, served Ms. Scott’s expert report seven weeks late. 

Thus, to avoid losing Ms. Scott’s report as evidence in the case because of the late filing, PVA’s strategy was to say that Ms. Scott’s report was not a “rebuttal” report at all.  Rather, PVA asserted that Ms. Scott’s expert report was necessary for PVA’s case-in-chief, and it had little if anything to do with Dr. Nye’s report put forward by Relators. 

The court was thereby faced with the issue of whether Ms. Scott’s expert report was, in fact, a rebuttal report.

The Legal Standard on Whether Someone is a “Rebuttal” Witness – YETI Coolers

 The Montcrieff court needed to determine whether Ms. Scott’s report was, indeed, a rebuttal report.  So, it looked to the case of YETI Coolers, LLC v. RTIC Coolers, a 2017 Western District of Texas case, for guidance on how to analyze whether Ms. Scott is a rebuttal expert witness.

The YETI Coolers case provides a three-factor test to determine whether the expert report is a rebuttal report.  Those three factors are:

  1. Does the report contradict or rebut expert opinions offered by the opposing party as to a claim or defense on which the opposing party has the burden of proof?
  1. Are the opinions on the same subject matter as that identified by the opposing party’s expert? And
  1. Is the evidence disclosed as rebuttal evidence intended solely intended to contradict or rebut the evidence?

Court Analysis of Each of the Three YETI Coolers Factors

The court was quick to find that certain parts of Ms. Scott’s expert report did, in fact, constitute rebuttal evidence. 

With regard to the first factor, the fact that Ms. Scott’s report contradicted and/or rebutted Dr. Nye’s report is clear.  Ms. Scott’s report had a section titled “Dr. Nye’s Opinions,” and that section proceeded to explain in detail how Dr. Nye’s expert report had “a multitude of fundamental flaws,” and that it relied too heavily on Relators’ assertions without getting independent validation of those assertions.  The court concluded on this first factor that “No reader could reasonably interpret [portions of Ms. Scott’s report] as anything other than rebuttals to Dr. Nye’s opinions.”

With regard to the second factor, the court concluded that Ms. Scott’s report indeed discussed precisely the same subject matter as that discussed in Dr. Nye’s report.  Thus, the second factor weighed in favor of Ms. Scott’s report being a rebuttal report.

Finally, with regard to the third factor, the court found that Ms. Scott’s report specifically refutes Dr. Nye’s opinions.  Ms. Scott provides a detailed analysis of why, in her opinion, Dr. Nye’s expert analysis is unreliable.  According to the court, the relevant portions of Ms. Scott’s report at issue “cannot reasonably be offered to do anything but contradict or rebut Dr. Nye’s testimony.” 

Accordingly, the court held that the portions of Ms. Scott’s expert report at issue were clearly rebuttal evidence and, therefore, should have been served within 15 days of the filing of Dr. Nye’s report.

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