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THE TRIAL JUDGE HAS THE DISCRETION TO PERMIT REBUTTAL TESTIMONY; HERE PLAINTIFF’S TREATING PHYSICIAN WAS PROPERLY ALLOWED TO REBUT THE TESTIMONY OF DEFENDANTS’ EXPERT, EVEN THOUGH THE TREATING PHYSICIAN’S TESTIMONY COULD HAVE BEEN PRESENTED IN THE CASE-IN-CHIEF (FIRST DEPT).

The First Department noted that the trial judge properly allowed plaintiff to call her treating physician to rebut the testimony of defendants’ expert, even though the doctor’s testimony could have been presented in her case-in-chief:

The trial court providently exercised its discretion in permitting plaintiff to call her treating radiologist as a rebuttal witness … . While plaintiff’s radiologist’s testimony could have been offered as part of her case-in-chief, and her failure to offer the testimony at that time deprived her of the right to make use of it as affirmative evidence, she still had the right to offer the testimony in order “to impeach or discredit” the testimony of defendants’ expert radiologist … . Reinoso v New York City Tr. Auth., 2022 NY Slip Op 02242, First Dept 4-5-22

Practice Point: In a civil case, a judge has the discretion to allow a plaintiff to present rebuttal evidence which could have been presented in the case-in-chief.

 

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