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Takayama v. Kaiser Foundation Hospital8/30/1996
ed [the decedent's] life expectancy to a maximum of ten years.
Plaintiffs' rebuttal witness contradicted defendant's expert pathologist witnesses by testifying "that based on the -- the pathological findings contained on the slides and from the autopsy report that [the decedent] was not suffering from the heart disease that the defense claims him to have been suffering from."
Defendants attempted to call three surrebuttal witnesses to confirm its witnesses and to contradict plaintiffs' rebuttal witness, but the trial Judge would not allow them to do so.
We find no abuse of discretion in this situation. The general rule is that "the party upon whom the affirmative of an issue devolves is bound to give all his [or her] evidence in support of the issue in the first instance, and will not be permitted to hold back part of his [or her] evidence confirmatory of his [or her] case and then offer it on rebuttal." 75 Am. Jur. 2d Trial, ยง 151 (1974) (footnote omitted). However, the rule is not so easily applied when the evidence is negative of a potential defense. Here, we readily understand why plaintiffs did not attempt to prove the negative of Hilo Hospital's heart disease defense during their case in chief and why the trial Judge allowed them to do so on rebuttal. We have difficulty understanding why Hilo Hospital would put on two expert witnesses . . . to prove the validity of its heart disease defense but would, without the trial court's prior approval, reserve three additional expert witnesses on the same issue for surrebuttal, and we readily understand why the trial Judge would not allow it to do so.
Yorita, 3 Haw. App. at 156-57, 643 P.2d at 827 (some brackets in original and some brackets added) (emphasis added). Takayama argues that, similar to the situation in Yorita, the general rule that all evidence confirmatory of a case should be given in the first instance it is raised -- in this case, during Takayama's case-in-chief --should not apply to the rebuttal evidence in the present case because the evidence "is negative of a potential defense." We disagree.
Three principles are discernible from the above-quoted passage from Yorita. First, as previously noted, as a general proposition, "the party upon whom the affirmative of an issue devolves is bound to give all his [or her] evidence in support of the issue in the first instance, and will not be permitted to hold back part of his [or her] evidence confirmatory of his [or her] case and then offer it on rebuttal." Id. at 157, 643 P.2d at 827. In other words, in the interests of expediency and limiting surprise, all evidence in support of a party's position should be presented when the issue it addresses is first presented.
Second, this general rule does not necessarily apply where the evidence sought to be presented on rebuttal is "negative of a potential defense," even if the evidence is also confirmatory of an affirmative position upon which the party seeking to present the evidence bears the burden of proof. As the ICA noted in Yorita, it may be readily understandable as a general matter of trial strategy that a party would choose not to seek to reveal, highlight, or refute a contrary position until the contrary position has actually been taken by the opposition.
Finally, however, as the Missouri Court of Appeals has succinctly noted, although a party is not required "to call, during his [or her] case in chief, every conceivable witness who might contradict a potential defense witness[,]" Chrisler v. Holiday Valley, Inc., 580 S.W.2d 309, 314 (Mo. Ct. App. 1979), it is also generally true that
party
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