Background:
Plaintiff, Frank Feulufai ("Frank"), filed an action seeking damages under the Jones Act against defendants. Frank also sought recovery for unseaworthiness and maintenance and cure.

The defendants, during the course of discovery, have filed a motion to exclude the testimony of Frank's expert, Dr. Barry H. Greenberg.

Issue:
Did this Court grant defendants' motion to exclude expert testimony offered by the plaintiff?

Held:
Defendants contended that Frank deliberately failed to disclose Dr. Greenburg as a retained expert in initial expert disclosures and merely characterized him as a rebuttal expert to avoid the consequences of "planned deception".

Defendants claim this is part of "clever subterfuge" by Frank to use Dr. Greenburg as his principal cardiologist expert to provide key medical issues which he has the burden to prove.

Defendants claim that none of the opinions offered by Dr. Greenberg in his expert report are given in response to or rebuttal of any opinions offered by Defendants' expert.

However, this Court found that there was no evidence of "subterfuge" or "deception" before the Court that would justify an order excluding Dr. Greenburg as a rebuttal expert witness.

The defendants, according to this Court, did not provide their own expert's report with which the court could make or draw its own conclusions. Therefore, it was not possible for this Court to determine whether Dr. Greenburg's report rebuts or refutes Defendants' expert's reports.

Accordingly, this Court denied defendants' motion to exclude Dr. Greenburg's testimony.

Comment:
During litigation both plaintiffs and defendants will attempt to persuade the court into finding in favor of their own "set of facts" by introducing expert testimony.

There are two such experts, rebuttal and affirmative experts.

Affirmative experts are used to provide testimony on factual issues for which the proponent (person introducing the expert) bears the burden of proof. They may also be used by a defendant who is asserting an affirmative defense.

On the other hand, a rebuttal expert is used to contradict findings introduced by the other party's affirmative expert. The main job of the rebuttal expert is to convince the jury (or in a bench trial, the judge) to reject the affirmative expert's opinion.

Steve Gordon