United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
1. Despite a risk of prejudice to Defendant, Battle may
testify for Plaintiffs as an expert witness.
argues that Plaintiffs should be prohibited from calling
Battle as their own witness because it would result in unfair
prejudice to Defendant.
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.
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
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)
The interests Rule 26 was designed to protect militate in