United States District Court, W.D. Virginia, Roanoke Division
PATRICIA LUPOLE, Administrator of the Estate of Gary Lupole, deceased, Plaintiff,
UNITED STATES OF AMERICA, and CHESLEY HINES, M.D., Defendants.
MEMORANDUM OPINION AND ORDER
Elizabeth K. Dillon United States District Judge.
a wrongful death action brought by Patricia Lupole,
Administrator of the Estate of Gary Lupole, against the
United States of America and Chesley Hines, M.D. Dr. Hines moves
to strike Lupole’s rebuttal expert witness reports.
(Dkt. No. 90.) He argues, generally, that four rebuttal
medical expert witness reports submitted by Lupole are not
proper rebuttal reports under the Federal Rules of Civil
Procedure. For the reasons stated below, the court disagrees,
and Dr. Hines’ motion is denied.
Rule of Civil Procedure 26(a)(2)(D)(ii) provides that a
rebuttal expert disclosure can be made after the opposing
party’s disclosure “if the evidence is intended
solely to contradict or rebut evidence on the same subject
matter identified by another party.” Case law in the
Fourth Circuit explains that rebuttal evidence is
“evidence provided by a party ‘to explain, repel,
counteract, or disprove facts given in evidence by the
opposing party.’” Scott v. Clarke, Civil
Action No. 3:12-cv-00036, 2014 WL 5386882, at *4 (W.D. Va.
Oct. 22, 2014) (quoting United States v. Moore, 532
Fed.Appx. 336, 338 (4th Cir. 2013)); see also United
States v. Byers, 649 F.3d 197, 213 (4th Cir. 2011)
(“Rebuttal evidence is defined as evidence given to
explain, repel, counteract, or disprove facts given in
evidence by the opposing party” or “that which
tends to explain or contradict or disprove evidence offered
by the adverse party”). Proper rebuttal is
“introduced only to counter new facts presented in the
[adversary’s] case in chief, ” including either
“surprise evidence” presented by the other party
or “evidence unavailable earlier through no fault of
the plaintiff.” Allen v. Prince George’s
Cnty., Md., 737 F.2d 1299, 1305 (4th Cir. 1984). A party
“may not use rebuttal as an attempt to introduce
evidence that he should have introduced in his
case-in-chief.” Steele v. Kenner, 129
Fed.Appx. 777, 780 (4th Cir. 2005).
offered rebuttal reports from the following experts: Dr.
Bennett D. Cecil (gastroenterology), Dr. Alain Ades
(gastroenterology, hepatology, internal medicine), Dr. Peter
Schulman (cardiology), and Dr. Arnold M. Schwartz
(pathology). Lupole argues that these reports are offered to
“repel, counteract, or disprove” the expert
opinions offered by defendants in this action. The court
agrees. For example, Dr. H. Richard Allen (gastroenterology),
Dr. Herbert Bonkovsky (gastroenterology), and Dr. Edward V.
Platia (cardiology) asserted in their expert disclosures for
Dr. Hines that Mr. Lupole did not die from liver cancer, but
from an independently-caused myocardial infarction
(MI). In response, Dr. Cecil explains that
cancer causes a hypercoagulable state in which the patient
has a nearly threefold risk of an MI caused by the cancer, as
compared to patients without cancer. Thus, Dr. Cecil explains
that even if Mr. Lupole suffered an MI on February 2, 2012,
there is a strong causal link between his liver cancer and a
heart attack. (See Ex. 2, Dkt. No. 93-12 page 3 of
9.) This is just one of several examples detailed in
Lupole’s briefing. Lupole’s briefing clearly
demonstrates that the anticipated testimony of its rebuttal
experts indeed rebuts the opinions of Dr. Hines’
experts, including Dr. Fintel.
generally, Dr. Hines takes issue with the fact that while
Lupole disclosed only one medical expert witness in her
initial disclosure (from Dr. Cecil), Lupole is now attempting
to introduce three new medical expert witnesses in rebuttal.
This argument glosses over the fact that Dr. Hines introduced
three medical experts in response to the one initially
disclosed by Lupole. Dr. Hines also argues that the rebuttal
experts should have been disclosed initially because it was
not a surprise that the predominant issue in this case is
whether Mr. Lupole died as a result of hepatocellular cancer
(HCC). Dr. Cecil provided an opinion on causation in his
initial report, and Dr. Hines responded with doctors from a
variety of fields and specialties to counter that evidence.
Lupole was not required to anticipate the array of medical
opinion evidence that Dr. Hines would marshal to undermine
Dr. Cecil’s initial expert report.
these reasons, Dr. Hines’ motion to strike
Lupole’s expert witness rebuttal reports (Dkt. No. 90)
is DENIED. To the extent any rebuttal
opinions offered at trial exceed the scope of proper rebuttal
testimony, Dr. Hines may object appropriately.
 The claims against the United States
were dismissed as time-barred. (8/22/18 Mem. Op. and Order,
Dkt. No. 81.)
 On October 1, 2018, Dr. Hines adopted
the expert report of the United States’ witness Dr.
William A. Fintel, and supplemental briefing was filed with
regard to ...