Petitioner's May 19, 2010 motion to preclude the testimony of respondent's "rebuttal" witnesses came on for hearing June 16, 2010 before the undersigned. After the hearing, the court ruled on one aspect of petitioner's motion, namely the admissibility of witness testimony regarding post-trial events, and permitted petitioner to supplement the remaining issues in the motion in limine after conducting discovery. June 18 and 23, 2010 Orders (Docket Nos. 391 and 398). On August 20, 2010, petitioner filed a supplemental brief. (Docket No. 433.) The June 23 Order permitted respondent to file a response by September 3. He has not done so, nor has he sought an extension of time. Accordingly, the court will consider the briefs submitted by the parties on petitioner's May 19 motion, the arguments of counsel at the June 16 hearing, and petitioner's supplemental brief.
This order also addresses respondent's first and petitioner's second motions in limine, both filed on July 2, 2010. (Docket Nos. 403 and 404.) Those motions came on for hearing before the undersigned on September 1, 2010. Tivon Schardl and Joan Fisher appeared for petitioner. Robert Bacon participated telephonically for petitioner. Heather Gimle and Eric Chistoffersen appeared for respondent. After hearing the arguments of counsel, the court informed the parties that due to the substantial overlap between petitioner's first motion in limine and the remaining motions, the court would wait until it had received the supplemental briefing on the first motion before ruling on any of the motions in limine.
Finally, because resolution of the motions in limine makes it possible, the court resolves issues surrounding the manner of taking expert witness testimony, petitioner's request to permit the testimony of "sur-rebuttal" experts, and respondent's request to permit testimony from Dr. Dunn in response to the "sur-rebuttal" experts.
I. Petitioner's May 19 Motion in Limine
Petitioner moves to exclude the testimony of respondent's "rebuttal" witnesses on two grounds: (1) because respondent should have identified those witnesses as "case-in-chief" witnesses; and (2) because respondent's summaries of those witnesses' testimony are inadequate to permit petitioner to prepare for the evidentiary hearing.
A. Respondent's Classification of Witnesses as "Rebuttal" Witnesses
Petitioner objects to respondent's identification of sixteen of his seventeen evidentiary hearing witnesses as "rebuttal" witnesses. Petitioner relies on a number of cases in support of his argument that "rebuttal" witnesses should not be permitted to testify if they could have testified as part of the party's case-in-chief. Petitioner also relies on Federal Rule of Civil Procedure 37(c)(1), which provides:
If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
Petitioner argues that the prejudice he suffers is that he "has no opportunity at all to present true rebuttal witness, because he lacks timely notice of sixteen of Respondent's seventeen witnesses." (Docket No. 358 at 8:13-14.)
1. Classification of Witnesses
Petitioner relies on case law in which district courts excluded "rebuttal" witnesses by finding they should have been identified as "case-in-chief" witnesses. Almost every case cited, however, involved the presentation of a new witness at the time of trial. The courts' rulings focus on the fact the other parties did not have time to prepare. See, e.g., Emerick v. United States Suzuki Motor Corp., 750 F.2d 19, 21-22 (3rd Cir. 1984). That is not the case here. The problem here appears to be one of semantics, rather than of prejudice. A review of the preevidentiary scheduling proceedings sheds some light on the problem.
On March 27, 2009, the court granted in part and denied in part petitioner's February 22, 2005 Motion for an Evidentiary Hearing. (Docket No. 212.) Thereafter, this court ordered the parties to file a joint statement proposing, among other things, a timeline for preevidentiary hearing work, including identification of witnesses and exhibits. (Docket No. 222 at 3.) In the June 19, 2009 Joint Statement, the parties proposed a pre-evidentiary hearing schedule that included dates for exchanging witness lists and providing expert disclosures. The parties proposed different dates for these activities. In addition, with respect to the exchange of witness lists, respondent specifically stated in a footnote that his "rebuttal" witness list should be disclosed ten days after provision of petitioner's witness list. (Docket No. 237 at 2 n.1.) The footnote went on to state: "Each party may call any witnesses designated by the other. Witness list should include a summary of the witness' proposed testimony. No other witness will be permitted to testify unless the witness is an unanticipated rebuttal witness and the court and opposing party are promptly notified upon discovery of the witness." (Id.) Petitioner did not oppose this procedure in the Joint Statement. In the Joint Statement, each party also proposed a date for "Petitioner's expert disclosures under Rule 26(a)(2)." The parties agreed that "within 30 days" after the filing of petitioner's expert disclosures, respondent would file "rebuttal expert disclosures, if any, pursuant to Rule 26(a)(2)(C)(ii)." (Id. at 2.)
On July 8, 2009, the court conducted a status conference and hearing on discovery motions. During that hearing there was no objection by petitioner to respondent's suggestion that he should be permitted to identify "rebuttal experts" after petitioner identified his experts or that respondent should be permitted to identify lay "rebuttal" witnesses after petitioner had submitted his witness list. In a July 9, 2009 Order, the court noted that petitioner's counsel agreed during the hearing to identify his lay witnesses on a staggered basis. (Docket No. 247.) The purpose of staggering the identification of petitioner's witnesses was to permit respondent to begin interviewing those witnesses to determine whether some should testify in court. (Transcript of 7/8/09 Hearing, Docket No. 261 at 33:8-25.) The first indication that petitioner might not agree to a procedure that required him to identify his witnesses before respondent identified his witnesses was in a July 17, 2009 proposed time line for identifying lay witnesses. (Docket No. 249.) There, petitioner's counsel stated they would "provide the State on the first working day of every month commencing August 3, 2009, the names, addresses and relevant declarations or other summaries of any lay witnesses Petitioner's counsel then knows are likely to be called to testify on his behalf at the evidentiary hearing to be scheduled herein." (Id. at 1.) The final sentence of petitioner's proposal simply states, "Petitioner anticipates Respondent will do the same with respect to his proposed witnesses." (Id. at 2.)
Whatever the understandings of the parties may have been, the court's August 7, 2009 pre-evidentiary hearing scheduling order became the required procedure. That order stated, in pertinent part:
Each party will provide the other party on the first working day of every month commencing September 1, 2009, the names, addresses and relevant declarations or other summaries of testimony of any lay witnesses that party then knows are likely to be called to testify on his or her behalf at the evidentiary hearing. By November 20, 2009, the parties shall file and serve final witness lists, including addresses and a summary of each witness's proposed testimony. By November 30, 2009, the parties may file and serve a list of any rebuttal witnesses. No other witnesses will be permitted to testify unless the witness is an unanticipated rebuttal witness and the court and opposing party are promptly notified upon discovery of the witness.
(Docket No. 259 at 1-2.) With respect to expert witnesses, a date was set by which "the parties shall file and serve the expert disclosures required by Federal Rule of Civil Procedure 26(a)(2)." (Id. at 2.) A month later, the parties were required to "file and serve the disclosures required by Rule 26(a)(2) for any rebuttal experts." (Id.) Again, the order requires the "parties" to follow this schedule. The order did not incorporate the Joint Statement's proposal that petitioner would first identify his experts followed by respondent's identification of "rebuttal" experts. Neither party sought reconsideration of the August 7, 2009 Order.*fn1
The August 7 Order made clear that both parties were required to notify the other no later than November 20, 2009 of any lay witnesses "that party then knows are likely to be called to testify on his or her behalf at the evidentiary hearing." However, the August 7 Order also made clear that both parties could identify "rebuttal" witnesses ten days later. Petitioner has argued that respondent has no right to present "rebuttal" witnesses, only "sur-rebuttal" witnesses in response to petitioner's "rebuttal" witnesses.*fn2 That is not the procedure contemplated by the August 7 Order. Rather, both parties were required to identify their "case-in-chief" witnesses by November 20; then both parties were required to identify any "rebuttal" witnesses ten days later. If petitioner's interpretation were correct, then respondent would have been required to identify his "sur-rebuttal" witnesses in response to petitioner's "rebuttal" witnesses before seeing who petitioner intended to put on as a rebuttal witness. The procedure contemplated by the August 7 Order allowed each party to identify witnesses to rebut the other party's case-in-chief.
Petitioner argues that any witness respondent knew was likely to testify should have been identified as a "case-in-chief" witness. While the language of the order did require each party to identify by November 20 those witnesses "the party then knows are likely to testify," the court recognizes there could be some confusion, particularly given the parties' prior statements on the issue, about the use of the term "rebuttal" in the August 7 Order.*fn3 Typically, rebuttal witnesses are not identified in a pre-trial statement or order. Local Rule 281 only requires the parties to identify "witnesses" in their pre-trial statements. See also 62A Am. Jur. 2d Pretrial Conf. § 32 (2010) ("Typically, pretrial orders under the Federal Rule  require disclosure by both parties of all prospective witnesses except 'rebuttal witnesses.' Such orders have engendered confusion as to the meaning of 'rebuttal witness.'"); Morgan v. Commercial Union Assurance Cos., 606 F.2d 554, 555-56 (5th Cir. 1979) (court recognizes that boilerplate pre-trial orders have "engendered confusion" as to the meaning of the term "rebuttal witness").
The identification of only "case-in-chief" witnesses in pretrial proceedings was the procedure used by courts in most of the cases petitioner cites in support of the proposition that a civil defendant, as respondent is here, should not be permitted to put on the testimony of a rebuttal witness if that witness could have been identified and named in that party's case-in-chief. In those cases, unlike the situation in the instant case, a party attempted to bring in a rebuttal witness for the first time at trial. Because of the obvious potential prejudice to the other side of unanticipated testimony, courts examined closely whether the proffering party should have identified that witness in her case-in-chief. In Morgan, 606 F.2d at 555-56, the parties exchanged witness lists for all witnesses except rebuttal witnesses prior to trial. At trial, the defendant sought to present the testimony of a previously unidentified witness as "rebuttal" to testimony presented by the plaintiff. The court held that "a defense witness whose purpose is to contradict an expected and anticipated portion of the plaintiff's case in chief can never be considered a 'rebuttal witness.'"*fn4 Id. at 556; see also Wong v. Regents of Univ. of Calif., 410 F.3d 1052, 1060-61 (9th Cir. 2005) (district court appropriately precluded expert named late because "the necessity of the witness" could have "been reasonably anticipated at the time the lists were exchanged"); Peals v. Terre Haute Police Dept., 535 F.3d 621, 630-31 (7th Cir. 2008) (appropriate for trial court to exclude previously unidentified rebuttal witness where witness's testimony should have been presented in party's case in chief); Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 202-03 (1st Cir. 1996) (court excludes experts identified at the last minute as "rebuttal"); Emerick, 750 F.2d at 22 ("It is well settled that evidence which properly belongs in the case-in-chief but is first introduced in rebuttal may be rejected, so as to avoid prejudice to the defendant and to ensure the orderly presentation of proof."); Smith v. Conley, 584 F.2d 844, 845-46 & n.3 (8th Cir. 1978) (expert called by plaintiff in rebuttal properly excluded because should have been called in case-in-chief; plaintiff failed to disclose the expert as a potential witness). In the present case, there is no issue of unanticipated testimony. Rather, as set forth below, because the evidentiary hearing has been continued, and based on the holdings set forth in this order, petitioner will be given an opportunity to put forth sur-rebuttal testimony if he wishes.
While respondent was not required to name his rebuttal witnesses as case-in-chief witnesses, the court finds there should be no confusion in this case that the term "rebuttal" refers to a witness who is intended to contradict evidence introduced by the other party. See Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006) ("'The function of rebuttal testimony is to explain, repel, counteract or disprove evidence of the adverse party.'" (quoting United States v. Lamoreaux, 422 F.3d 750, 755 (8th Cir. 2005)); cf. Fed. R. Civ. P. 26(a)(2)(C) (rebuttal experts allowed solely to "contradict or rebut evidence on the same subject matter identified by another party").*fn5 "As such, rebuttal evidence may be used to challenge the evidence or theory of an opponent-and not to establish a case-in-chief." Marmo, 457 F.3d at 759 (citing Cates v. Sears, Roebuck & Co., 928 F.2d 679, 685 (5th ...