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Smith v. Csaa Fire and Casualty Insurance Co.

United States District Court, W.D. Oklahoma

September 20, 2019

SEAN SMITH and CRYSTAL SMITH, Plaintiffs,
v.
CSAA FIRE AND CASUALTY INSURANCE COMPANY, Defendant.

          ORDER

          TIMOTHY D. DEGIUSTI CHIEF UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion to Strike David Battle and Sean Wiley from Plaintiffs’ Witness List [Doc. No. 58] filed by CSAA Fire and Casualty Insurance Company (the “Defendant”). Plaintiffs Sean Smith and Crystal Smith have filed their Response [Doc. No. 60] to which Defendant has replied [Doc. No. 62]. The matter is fully briefed and at issue.

         BACKGROUND

         This case arises from an insurance claim for damages to Plaintiffs’ home. Plaintiffs’ First Amended Complaint, Doc. No. 19 at 1, ¶ 2. Plaintiffs allege the damage was caused by an earthquake on November 7, 2016. Id. at 1, ¶ 3. Defendant denied Plaintiffs’ insurance claim on the basis that the damage was instead caused by poor construction and soil changes. Response to Motion to Strike Exhibit 2, Doc. No. 61 at 3. Plaintiffs brought this action alleging breach of contract and bad faith. See First Amended Complaint.

         On February 1, 2018, the Court entered a Scheduling Order [Doc. No. 16] in this case. The deadline for Plaintiffs to file their final list of expert witnesses in chief and disclose expert reports was August 9, 2018; Defendant was to do so by August 23, 2018. Doc. No. 16. Defendant timely identified David Battle (“Battle”) as an expert on the cost to repair Plaintiffs’ home. See Final List of Expert Witnesses, Doc. No. 27 at 1. On September 21, 2018 Plaintiffs identified Sean Wiley as a rebuttal expert who would testify as to Battle’s reports on the cost of repairs. Plaintiffs’ Rebuttal Expert Witness List, Doc. No. 30.

         Prior to this Motion, Defendant filed a Motion to Strike Sean Wiley (“Wiley”) from Plaintiffs’ Rebuttal Witness List. Doc. No. 30. The Court issued an Order allowing Plaintiffs to include Wiley as their witness, but only as a rebuttal witness to Battle’s testimony. See Order, Doc. No. 40. Defendant thereafter removed Battle from their witness list. See Defendant’s Final Witness List, Doc. No. 43. Plaintiffs timely filed a final list of witnesses on November 21, 2018, but also included a listing of Battle as an expert witness. Doc. No. 41; see Amended Scheduling Order, Doc. No. 29. Plaintiffs’ Final Witness List includes both Battle and Wiley. Id. at 2–3. Defendant now files a second Motion to Strike arguing that Plaintiffs should not be allowed to call Battle as their witness and that Wiley should be disallowed as a witness because Defendant is not presenting any evidence for Wiley to rebut. Motion at 3–9.

         STANDARD OF DECISION

         The disclosure of expert witnesses is controlled by Fed.R.Civ.P. 26(a)(2). Parties must disclose the identity of experts and any report prepared by expert witnesses in accordance with any scheduling order issued by the court. Fed.R.Civ.P. 26(a)(2)(C). In the event a party fails to comply with the requirements of Rule 26(a), “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.” Fed.R.Civ.P. 37(c)(1).

         DISCUSSION 1. Despite a risk of prejudice to Defendant, Battle may testify for Plaintiffs as an expert witness.

         Defendant argues that Plaintiffs should be prohibited from calling Battle as their own witness because it would result in unfair prejudice to Defendant.

         Federal Rule of Civil Procedure 26(b)(4) “is silent as to how the court should treat the request by a party to use an adverse party’s designated expert at trail after the adverse party withdraws that expert’s designation.” Guinn v. CRST Van Expedited, Inc., No. CIV-09-1198-D, 2011 WL 2414393, at *2 (W.D. Okla. June 10, 2011) (DeGiusti, J.) (quoting Ferguson v. Michael Food, Inc., 189 F.R.D. 408, 409 (D. Minn. 1999)).

         Courts in this Circuit employ a balancing test to determine whether a withdrawn expert can be called to testify for the opposition. See, e.g., Carbajal v. Lucio, No. 10-CV-02862-PAB-KLM, 2019 WL 141864, at *9 (D. Colo. Jan. 9, 2019) (applying balancing test and laying out relevant factors); Brigham Young Univ. v. Pfizer, Inc., 2012 WL 1029304, at *4-5 (D. Utah Mar. 26, 2012) (applying balancing test and holding that defendants were entitled to call plaintiff’s previously-designated expert witness at trial); Guinn, 2011 WL 2414393, at *2–4 (holding that the relevant factors supported allowing the defendant to call the plaintiff’s designated expert at trial).

         The test is “guided by a balancing of probative value against prejudice” and considers the following factors: (1) the interests Rule 26 serves; (2) any prejudice caused by informing the jury that an expert presented by one party was, at one time, working for the opposition; (3) “the court’s interest in the proper resolution of issues”; and, (4) the interests of the party seeking the testimony. Carbajal, 2019 WL 141864, at *9. The Tenth Circuit has indicated that the determination as to whether unfair prejudice will arise is within the trial court’s discretion “and should be determined according to the specific circumstances presented.” Giunn, 2011 WL 2414393, at *3 (citing Archer v. Grynberg, 1991 WL 268808 (10th Cir. Dec. 12, 1991) (unpublished opinion)).

         a. The interests Rule 26 was designed to protect militate in favor ...


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