Power Line expertA defendant, an underground power line locator company, brought a motion to exclude a plaintiff’s rebuttal expert in a negligence action where plaintiff alleged that the defendant failed to locate and mark an underground power line. Plaintiff struck the unmarked power line with a shovel and suffered injuries. Defendant argued Plaintiff’s rebuttal expert should have been disclosed in its initial expert disclosures. Therefore, his report should be excluded.

Prior to beginning work on the project, Plaintiff’s supervisor contacted the Kansas One-Call system to have the underground utilities in the area located and marked. The locating work was performed by Defendant’s employee. When he later started work, Plaintiff saw there were no markings in a specific area, which, according to Plaintiff, meant Defendant’s employee had determined no underground services were buried there.

After his boring machine’s striker alert system sounded an alarm, Plaintiff withdrew the drill and started digging by hand with a metal shovel in that area. He didn’t call the One-Call center, Defendant, or the utility operator. As he was digging, He hit a live wire and suffered an electrical shock. He was thrown back and briefly lost consciousness.

In his negligence action, Plaintiff retained a liability expert who concluded that the locator, Defendant’s employee, was negligent because he didn’t try to locate the buried power line by walking the entire length of the property. Defendant’s liability expert said that Defendant’s employee’s sweep of the property was reasonable, and there were reasons why he may have failed to detect that particular underground power line.

Plaintiff then designated a rebuttal expert who concluded that a competent locator would perform the locate using a particular technique instead of the technique used by Defendant’s employee.

Defendant asked the court to strike the rebuttal expert’s testimony because his opinion was advancing a new theory of liability. Because he was introducing a new theory of liability, rather than rebutting Defendant’s expert’s opinion, the rebuttal expert should have been designated as a case-in-chief expert, Defendant argued.

Plaintiff responded that the rebuttal expert’s testimony rebutted Defendant’s expert’s opinion that the locator’s failure to locate the underground power line was reasonable, and was therefore proper rebuttal testimony. He also claimed that Defendant wouldn’t be prejudiced because it had already deposed this expert.

In his opinion on the issue, U.S. District Judge Carlos Murguia noted that Rule 26(a)(2) sets out the procedures for expert testimony disclosure. Under Rule 26(a)(2)(D), a party must disclose any expert witness it may use at trial and must do so within the time frame ordered by the court. Expert evidence “intended solely to contradict or rebut evidence on the same subject matter identified by another party” must be disclosed within 30 days after the other party’s disclosure.

Rebuttal evidence is “evidence which attempts to ‘disprove or contradict’ the evidence to which it contrasted,” the judge explained, quoting an earlier Tenth Circuit decision, which cited Black’s Law Dictionary. The admission of rebuttal evidence on a topic is permissible once a party has opened the door to that topic. Judge Murguia said it was within the court’s discretion to admit or exclude rebuttal evidence, and that the Federal Rules of Civil Procedure set out specific procedures for the disclosure of rebuttal witnesses. “[C]ourts will disallow the use of a rebuttal expert to introduce evidence more properly a part of a party’s case-in-chief”—especially the judge remarked, “if the alleged rebuttal expert is used to introduce new legal theories.”

The court agreed that the rebuttal expert should have been designated as a case-in-chief expert. Judge Murguia said that the rebuttal expert determined that any reasonable locator with adequate training should have been able to locate the underground power line at issue in this case. Plaintiff argued that this opinion rebutted Defendant’s expert’s conclusion that the locator’s failure to locate the underground power line was reasonable.

But Plaintiff retained its case-in-chief expert to offer testimony on the locator’s negligence by not walking the entire length of the property. Plaintiff didn’t retain any expert to make conclusions about why the locator may have been unable to find the power line because, before liability expert’s report, he was “unaware of any possible reason why the underground electric line could be unlocatable.” Judge Murguia held that this wasn’t grounds for offering rebuttal evidence.

Defendant hired an expert to provide opinions as to why the locator may not have located the underground line. “This is not a novel legal theory that came as a surprise to plaintiff,” the judge explained. “Plaintiff simply failed to prepare for every possibility when deciding what experts to designate in his case-in-chief,” and sought “to remedy this by offering new legal theories on rebuttal,” Murguia went on to say.

Further, the rebuttal expert himself confirmed that he wasn’t a rebuttal expert. He stated that he didn’t receive or review reports from other experts in the case and testified in a deposition that didn’t believe he was a rebuttal witness or was aware of any testimony he was rebutting. Judge Murguia said that this indicated that Plaintiff used him to offer a new theory for why it was unreasonable for the locator to have missed the underground power line at issue, instead of using him to rebut Defendant’s expert’s testimony.

Plaintiff argued that even if his rebuttal expert was an untimely disclosed case-in-chief expert, Defendant wasn’t prejudiced by the admission of his testimony. Plaintiff argued that Defendant had the opportunity to depose the expert and that any other prejudice suffered could be cured. Plaintiff also admitted that the admission of the rebuttal expert’s testimony was “inconvenient for Defendant at this point in the case, and no doubt prejudicial,” but was justified because the prejudice could be cured.

However, Judge Murguia wrote that under Rule 37(c)(1) of the Federal Rules of Civil Procedure, a party is precluded from using information or witnesses not timely disclosed unless the failure to disclose was “substantially justified or is harmless.” The court is to consider four factors when determining whether an untimely disclosure is substantially justified or harmless:

  • the prejudice or surprise to the party against whom the testimony is offered;
  • the ability of the party to cure the prejudice;
  • the extent to whichintroducing such testimony would disrupt the trial; and
  • the moving party’s bad faith or willfulness.

Because this case was just a few weeks away from trial, Judge Murguia thought that admitting an untimely expert disclosure wasn’t justified. Even if the case wasn’t on the eve of trial, the judge found the untimely disclosure was also unjustified because there was no good reason why the rebuttal expert wasn’t disclosed as a case-in-chief expert.

Advancing a new legal theory through a rebuttal expert right before the discovery deadline, “subverts the expert disclosure process,” the judge wrote. Plaintiff saw an opportunity “to designate a case-in-chief expert as a rebuttal witness by making a weak tie to the report of Defendants’ experts.” To allow Plaintiff to present the testimony in that way subverts the expert disclosure process.

Defendant’s Motion to Exclude Plaintiff’s Rebuttal Expert was granted.


Foster v. Usic Locating Servs., 2018 U.S. Dist. LEXIS 139648 (D. Kan. August 17, 2018)