WINFREE, Justice.
I. INTRODUCTION
During a personal injury trial the defense expert witness varied from his written report , expressing new opinions to justify a bar employees use of force. In his report the expert had described the force as a reasonable defensive tactic; at trial he testified in addition that the bar employee was confronting the plaintiff at the bar entrance, that the bar had a duty to keep the entrance safe and clear, that local police rely on bar personnel to keep the area safe and clear, and that the bar employee was using a reasonable soft hand escort hold when the incident occurred. The plaintiff then sought to cross-examine the expert with grand jury testimony by an Anchorage police officer-testimony the expert had been given to review prior to writing his report-that was contrary to key points of the experts new opinions. The superior court refused to allow this cross-examination, telling the plaintiff that she could try to call the officer as an expert witness. The plaintiff later tried to call the officer as a hybrid expert witness, but the defendants objected because he was not on the plaintiffs witness list. The superior court then refused to allow the officer to testify. The jury found the bar employee was justified in using reasonable force to defend against a trespass.
On appeal the plaintiff argues that the superior court erred by precluding her cross-examination of the expert and her calling the officer to testify as a rebuttal witness. Because we conclude it was a prejudicial abuse of discretion to preclude the officer from testifying as a rebuttal witness with respect to the defense experts new and unexpected trial opinions, we vacate the judgment and remand for a new trial without reaching the cross-examination issue.
II. FACTS AND PROCEEDINGS
A. Davy Johnsons Injury; Lawsuits
Davy Johnson suffered a skull fracture after hitting his head on the sidewalk during an incident outside an Anchorage bar. Matthew Oberlander, a bartender assisting the bars security, had been told by the bars general manager that Davy was prohibited from reentering the bar or obstructing its doorway. When Davy refused to move from his position on the sidewalk outside the bars entrance, Oberlander pushed Davy, who fell backward and struck his head on the sidewalk.
Davy filed suit against the bars owner, J.G. Pattee, Inc., its dominant shareholder, John G. Pattee (collectively Pattee), and Oberlander for negligently or recklessly causing Davys injuries. Following Davys death about a year later, the parties stipulated to the substitution of his wife, Lydia Johnson, the personal representative of his estate, in the lawsuit. Lydia also filed a separate suit against the same defendants in her individual capacity; the superior court later consolidated the cases.
B. Oberlanders Assault Charge; Officer Wittes Grand Jury Testimony; Protective Order
Oberlander was charged with criminal assault arising from the incident. Gregory Witte, a police officer who arrived at the scene, testified before the grand jury. Witte had not witnessed Oberlanders push or Davys fall, but Witte later viewed security camera footage of the incident and testified that Oberlander had pushed Davy up and out from beneath his rib cage to get him off balance. Witte testified that Davy was clearly standing on the sidewalk portion [that] everybody has a right to walk down and that, if he was causing ... a problem in the public area, the police should have been called. Following Oberlanders acquittal of the assault charge, the superior court issued a protective order precluding the parties from introducing any evidence or testimony that could lead the jury to conclude that Oberlander was arrested, indicted and criminally prosecuted.
C. Preliminary Witness List; Motions In Limine To Strike Police Officers Testimony; Final Witness List
Lydias preliminary witness list identified two police officers other than Witte and [a]nyone ... attached to troopers or the Anchorage Police Department or other police agencies [to] testify to liability and give other expert opinions as to why any defendant is liable for negligence ... and other opinions. Oberlander filed a pretrial motion to limit the named officers opinions. Pattee separately moved to preclude the officers from testifying as experts at all, contending they were merely lay witnesses in the exact same position as the jurors to evaluate the video. Lydia opposed both motions, arguing that she did not expect to call police officers unless necessary in rebuttal and that it would be premature and improper to preclude the officers from testifying as experts. The superior court denied both motions. Lydias final witness list did not include any police officers, but it did list [a]ny proper rebuttal witness.
D. Examination Of The Defense Expert
After reviewing video of the incident, the grand jury transcript, and other documents, the defense expert, retired Bellevue, Washington police chief Donald Van Blaricom, issued a report stating that Oberlander did not use excessive force and that when he pushed Davy it was an appropriate defensive tactic. The report made no mention of the bars responsibility to keep the sidewalk area around its entryway safe and clear or whether Oberlanders use of force was appropriate to keep the bars entryway clear or to stop Davy from reentering the bar.
During the defense case-in-chief, Pattees counsel asked Van Blaricom a series of questions about whether, in his experience, a bar is responsible to keep the area around its entryway safe and clear. Van Blaricom responded, Yes. ... [y]ou have to keep it clear ... for safety and other reasons. Lydias counsel asked for a bench conference outside the jurys presence and objected that Van Blaricom was testifying to opinions not disclosed by and outside the scope of his expert report, which had been marked as an exhibit. Lydias counsel argued in part: Theres nothing in here [-by clear implication Van Blaricoms expert report-] where Mr. Van Blaricom is indicating that sidewalk that the bar had a responsibility to keep clear, theres nothing in here supporting what the basis of his opinions in that regard might be, anything about the location .... The court responded: I dont quite understand, what is your objection though? Counsel replied: My objection is to his opinion about whether [Davy] was entitled to be where he was at the time is beyond the scope of his report.
The court overruled the objection. In response to further questioning by Pattees counsel, Van Blaricom then said that a bar has a general obligation to keep its entryway safe and clear and reitrated that [y]ou have to keep the entryway clear. Van Blaricom later testified that Oberlander had used reasonable force to clear that space, describing the push as a soft hand hold, an escort hold, and that Oberlander, as a bar employee, had a duty to move [Davy] out of that area to prevent Davy blocking the bars entryway. Van Blaricom then further explained that police rely on bartenders and the bar personnel to keep that area clear. ... [T]his is something that has to be resolved, after all they are trying to conduct a business.
Given the protective order shielding the jury from evidence of Oberlanders prior criminal proceedings, Lydias counsel made an offer of proof outside the jurys presence of Wittes contrary grand jury testimony and sought to cross-examine Van Blaricom to undermine the credibility and the basis of his report and the findings and some of the testimony he provided on direct examination. Van Blaricom responded that he did not recall whether he had reviewed Wittes grand jury testimony, that he would pay absolutely no attention to the officers interpretation of the video, and that Davy didnt have a right to be on the sidewalk where he was blocking the entrance.
Oberlanders counsel objected to Lydias use [of] Wittes testimony to impeach [Van Blaricom] ... as if hes another expert. Lydias counsel argued that Wittes grand jury testimony was relevant to undermine the accuracy of Van Blaricoms expert report and opinions. The court precluded the use of Wittes grand jury testimony in cross-examination. The court explained, however, that Lydia could try to introduce Wittes opinion elsewhere, such as try[ing] to call [Witte] as an expert, recognizing that it would have to deal with the objections for failure to [list] him as an expert.
Following the courts ruling, Lydias counsel reiterated the necessity of using Wittes grand jury testimony to challenge Van Blaricoms trial testimony that the force Oberlander used was reasonable to prevent Davy from trespass, rather than, as Van Blaricoms earlier expert report had concluded, that the force used was reasonable to create defensive space. Lydias counsel argued that Van Blaricom did not initially come to this easier conclusion of trespass in his report because of Wittes grand jury testimony and that using Wittes grand jury testimony in cross-examination was necessary to challenge Van Blaricoms change of opinion. The court again ruled that it was not going to allow it.
E. Preclusion Of Witte From Testifying In Rebuttal
After the defense case closed, Lydia informed the court that Witte was under subpoena to testify and that she still intend[ed] to offer him for his hybrid witness opinions ... [of] his evaluation of the video ... [and] regarding the issue with the sidewalk and whose responsibility it was to clear the sidewalk. Oberlander objected, arguing that Witte was not on Lydias final witness list, that he was not an expert, and that his hybrid expert testimony was inappropriate rebuttal testimony because it would only bolster an opinion from an officer providing hybrid legal testimony. In response to the courts observation that [i]t sounds like youre trying to call him as an expert witness, Lydia explained that Witte would be a hybrid witness. The court denied Lydias request to call Witte as a rebuttal witness.
F. Verdict; Appeal
The jury returned a defense verdict, finding the defendants [were] justified in using reasonable force in defense of attempted trespass. The court entered judgment against Lydia.
Lydia appeals, arguing that the superior court erred by precluding cross-examination of Van Blaricom using Wittes grand jury testimony and by precluding Witte from testifying as a rebuttal witness.
III. STANDARD OF REVIEW
We generally review the superior courts decision to admit or exclude evidence, including expert witness testimony, for abuse of discretion and will ... reverse an erroneous decision [only] if it affected the substantial rights of a party.
IV. DISCUSSION
A. It Was An Abuse Of Discretion To Preclude Witte From Testifying As A Rebuttal Witness On The New Issue Of Police Reliance On Bar Employees To Remove Unwelcome Patrons From Bar Entrances.
Van Blaricom testified that Oberlander had a duty to move Davy out of the bars entryway and that police rely upon the bartenders and the bar personnel to keep that area clear. This was well beyond the scope of Van Blaricoms expert report, which concluded only that Oberlander did not use excessive force because the push [wa]s an appropriate defensive tactic to gain space for time to react to whatever an intoxicated adversary may do next. Van Blaricoms testimony was also contrary to Wittes grand jury testimony that when [Davy was] standing on a public right of way, the bar doesnt have any more right to enforce that than you or I do and that the appropriate protocol to deal with a problem in the public area is to call the cops.
It is evident from the record that Lydia made clear to the court the basis for her argument to present Wittes testimony. When Van Blaricom first began testifying about a bars obligation to keep the entryway safe and clear, Lydia objected that this line of opinion was outside the scope of Van Blaricoms expert report. The report was marked as an exhibit and Lydia explained to the court the limits of Van Blaricoms written opinions. When the court later would not allow Lydias proposed cross-examination of Van Blaricom with Wittes grand jury testimony, the court said that Lydia could try to call Witte as an expert, subject to the objection that he was not on her witness list. Lydia then emphasized to the court that Van Blaricom had changed his opinion from self-defense-in his written report-to response to trespass-as he would ultimately testify at trial-as a result of Wittes grand jury testimony. The court again denied the cross-examination effort.
After the close of the defendants cases, Lydia advised the court that she intended to call Witte to testify as a rebuttal witness. The offer was, in part, for a hybrid expert witness opinion regarding whose responsibility it was to clear the sidewalk around the bar; in other words, where the bar ended and the public sidewalk began based on Wittes knowledge of patrolling the area. This was the same point Lydia had raised earlier in the trial during her attempt to cross-examine Van Blaricom with Wittes grand jury testimony. After Oberlander and Pattee objected that Wittes name was not on a witness list, the court refused to allow his testimony.
But Lydias failure to disclose Witte on her witness list does not necessarily preclude Witte from testifying. The standard for determining whether a rebuttal witness should be allowed to testify when the witnesss name was not timely identified ... [is] dependent on whether the testimony sought to be rebutted could reasonably have been anticipated prior to trial. Prior to trial Lydia could not have reasonably anticipated Van Blaricoms testimony that Oberlander had a duty to move Davy out of the entryway area and that police rely upon a bar and its personnel to keep the bars entryway clear and safe, because those opinions were not included in his expert report. Rather, the theory of the bars duty was presented for the first time in the defenses case-in-chief by Pattees counsel eliciting Van Blaricoms corroborating testimony on direct examination.
Based on Wittes grand jury testimony, his expert trial testimony would have been proper rebuttal testimony. [R]ebuttal testimony is any competent evidence which explains, is a direct reply to, or a contradiction of material evidence introduced by ... a party in a civil action. Wittes expected trial testimony, as an Anchorage police officer, may have enlightened the jurors to the credibility of Van Blaricoms contrary opinion. It was an abuse of discretion to preclude Witte from testifying as a rebuttal witness.
B. The Error Was Not Harmless .
We must next decide whether the error was harmless. We will ... reverse an erroneous decision [only] if it affected the substantial rights of a party. The error in refusing to permit Witte to provide rebuttal testimony had substantial influence on the verdict because Wittes testimony directly addressed the only issue the jury ultimately decided on the special verdict form: whether the defendants [were] justified in using reasonable force in defense of attempted trespass. Wittes rebuttal testimony could have assisted the jury in deciding whether Oberlander should have contacted the police to remove Davy from the sidewalk in front of the bars entrance rather than using force to move Davy himself. Because the erroneous decision affected Lydias substantial rights, it is not harmless error.
V. CONCLUSION
The superior courts final judgment is VACATED, and we REMAND for a new trial.
Cartee v. Cartee , 239 P.3d 707, 721 (Alaska 2010) (first citing Nelson v. Progressive Corp. , 976 P.2d 859, 865 n.9 (Alaska 1999) ; then citing Dobos v. Ingersoll , 9 P.3d 1020, 1023 (Alaska 2000) ).
Pattee and Oberlander argue that Wittes proffered opinion regarding the public nature of the sidewalks and who controls the sidewalk were questions of law and experts are not allowed to testify as to conclusions of law. Analysis of the sidewalk as a public right of way may be an impermissible conclusion of law or it may be a mixed question of fact and law. But to the extent Wittes testimony would have challenged Van Blaricoms opinion that police [officers] rely upon bartenders and the bar personnel to keep that area clear, the opinion would not be a legal conclusion but rather Wittes understanding of Anchorage police officers role in moving or redirecting unwelcome bar patrons from an establishments entrance. Wittes understanding or experience would be permissible hybrid witness testimony.
See Getchell v. Lodge , 65 P.3d 50, 55-57 (Alaska 2003) (concluding police officers fact and expert testimony constituted hybrid expert testimony subject to and permissible under Evidence Rule 702 ).
We disagree with the dissents view that Lydias appeal is forfeited because her attorney did not again express to the superior court that Van Blaricom had testified to opinions outside the scope of his expert witness report and that the rebuttal testimony was necessary to respond to the new opinions. Neither Pattee nor Oberlander made this argument to us in their appellee briefs, so Lydia never had a reason to address it. But it seems clear from the record that Van Blaricom wrote a report with limited expert opinions; the report was marked as an exhibit at trial; defense counsel elicited new opinions from Van Blaricom during the defense case-in-chief; Lydias counsel objected and pointed to the expert report, but was overruled; Van Blaricom testified that his new opinions were not in the report; and, when Lydias counsel sought to have a contested rebuttal witness testify-a witness whose name was bandied about in connection with Van Blaricoms new opinions during the testimonial disputes-the parties and the court knew the context for the rebuttal witness offer. This likely explains why Pattee and Oberlander did not make the new argument raised sua sponte by the dissent.
Although the defendants also argued that Witte was an improper hybrid expert, the superior court expressed its familiarity with Getchell and focused on the witness list issue.
Sirotiak v. H.C. Price Co. , 758 P.2d 1271, 1277 (Alaska 1988) (alteration in original) (quoting City of Kotzebue v. McLean , 702 P.2d 1309, 1315 (Alaska 1985) ).
See id.
Id. at 1277 (quoting Riffey v. Tonder , 36 Md.App. 633, 375 A.2d 1138, 1145 (1977) ; 6 Wigmore, Evidence § 1873 (Chadbourn rev. 1976) ).
See Jones v. Bowie Indus., Inc. , 282 P.3d 316, 328 (Alaska 2012) (stating that [e]ven though admission of evidence is erroneous, we will reverse only if the error was not harmless (citing Brandner v. Hudson , 171 P.3d 83, 87 (Alaska 2007) ) ).
Cartee v. Cartee , 239 P.3d 707, 721 (Alaska 2010) (citing Dobos v. Ingersoll , 9 P.3d 1020, 1023 (Alaska 2000) ).
See Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 353 (Alaska 2012) (The test for determining whether an error was harmless is whether on the whole record the error would have had a substantial influence on the verdict of a jury of reasonable lay[people]. (alteration in original) (quoting Noffke v. Perez , 178 P.3d 1141, 1147-48 (Alaska 2008) ) ).
Because we are reversing on this issue, we do not need to address Lydias other claims on appeal.