*2 DUNCAN, and Before WILKINSON HAMILTON, Senior Judges, and Circuit Judge. Circuit opinion. unpublished Affirmed opinion, wrote the Judge DUNCAN joined. Senior Judge which WILKINSON dissenting HAMILTON wrote Judge opinion. binding are not
Unpublished opinions circuit. Local Rule precedent See 36(c).
OPINION
DUNCAN, Judge. Circuit jury Appellant Following found Fishing Company, L.L.C. Chesapeake Bay Bay”) damages for (“Chesapeake liable NUGGET, fishing vessel GOLDEN Inc., by Appellee Nugget, owned Golden Hickman, captained by Appellee David and Insur- by Appellee insured Indian Harbor “GNI”). (collectively, Company ance challenges the district Chesapeake Bay to intro- permitting court’s GNI decision expert opinions that duce previously disclosed to contends were not judgment its motion for and denial of or a new trial. Because as a matter of law evidentiary that the error was we conclude prop- and that the district court harmless erly for Chesapeake Bay’s motion denied a new as matter of law or judgment Holloway, Hun Early ARGUED: John we affirm. L.L.P., Williams, Norfolk, Virginia, &ton Burns, Appellant. Megan for Elizabeth I. Mullen, News, Newport Virginia, Williams entered into ON BRIEF: Benita W. In October GNI Appellees. for Norfolk, Ellen, Williams, L.L.P., Ampro Shipyard, owned contract with Hunton & A. for routine Christopher repair Virginia, Appellant. for News, Abel, Mullen, on the NUG- maintenance GOLDEN Newport Williams F/V Corrado, 20, 2000, Jr., Stephen GET. On October GOLDEN Virginia; Frank L. Rossi, Corrado, railway on a Barry, placed & marine Barry, Grassi NUGGET from causation, removed the water. In prepara- theory of later voltage spik- work, tion repair employee ing welding related to the dam- Chesapeake Bay attempted provide aged fan to spark ignite the fire. *3 power shore hookup by to the plug- vessel trial, In a jury bifurcated found ging its power shore cable into a recepta- Chesapeake Bay liable for negligence, cle shipyard. at the When the cable was implied warranty breach of of workmanlike in, plugged the circuit breaker in the shore performance, and breach of a bailment power facility tripped, as did the circuit contract. The court a judg- entered final breaker on the GOLDEN NUGGET. The against ment Chesapeake Bay in the shipyard employee reset the breakers and $425,558. amount of attempted plug power the shore in cable again; power trial, shore During circuit breaker Chesapeake Bay raised two tripped again. power The shore objections cable had to the admission of by wires, four white, red, black, colored West, and Frederick witness, GNI’s expert green, and on the attempt third an em- First, that form the basis of this appeal. ployee managed provide power shore to Chesapeake Bay objected to the admission by cutting vessel the white wire. This expert opinion West’s that voltage spik- trip. time the breaker power did not Once ing caused the fire. Chesapeake Bay ar- connected, Captain Hickman closed gued that opinion was not disclosed in departed. vessel cabin and Expert Report West’s required as by Fed. Second, R.Civ.P. 26.1 later, days ob- shipyard Five employees be- jected gan to the admission of West’s testimo- welding work on the outside stern ny regarding area of the GOLDEN existence of a thermal NUGGET. Later day, cutout on the fan yard employee sparked fire. A noticed smoke vessel, from coming thermal cutout appliance cabin causes an turn fire presence was discovered. off of heat or excessive current, by but is not affected excessive After fire was extinguished, investi- voltage. Confirmation of a cutout there- gators found burned appliance on a low- fore undercut Chesapeake Bay’s theory of er bunk one of the bunk rooms. The causation. The district court overruled parties agreed later that the appliance was objections. both fan, that the fan was the source of the fire, and that the fan’s switch was entry After the judgment, Chesa- “on” position when the fire started. peake Bay timely made a judg- motion for
At ment as a matter of or alternatively law Bay contended that again the fan new arguing had been on left unattended opinion while causation improperly surrounded paper flammable admit- products. Chesapeake motion, ted. The district court Bay theorized that denied this finding the fan’s expert blades were blocked and could turn, and the eventual heat tracked information build-up properly disclosed the fan paper caused the products Expert Report. Additionally, ig- the dis- nite. argued GNI voltage spike trict court found that even if the testimony the initial power slightly failed shore varied from the disclosed informa- damaged tion, hookup the fan. Under GNI’s that variation was harmless. The (requiring See Fed.R.Civ.P. complete opinions dis- contain a statement of all report prepared closure of a written expressed to be and the basis and reasons witness, signed by therefor...."). an which "shall
533 then, of wheth- turn, to a consideration West’s We further ruled that district court is harmless.2 er the error the thermal cutout testimony about ease, and rebuttal elicited GNI’s analysis of harmless base We of the undisclosed use States Southern error on the five factors Rule not violate rebuttal did Fixture, v. Sherwin-Williams & Inc. Rack (4th Cir.2003), Co., con F.3d II. surprise the level sidering: in- evidentiary rulings, A district court’s would party whom the evidence against *4 of rulings admissibility ex- cluding on the (2) offered; ability party that the of testimony, are for an abuse pert reviewed (3) which the extent to surprise; cure the Joiner, of Gen. Elec. Co. v. discretion. See disrupt the evidence would allowing 136, 141-42, 118 139 522 U.S. S.Ct. evidence; (4) trial; importance of (1997). An of discre- L.Ed.2d 508 abuse nondisclosing explana party’s and a court makes tion occurs when district the evidence. for its failure to disclose tion Barile, of law. United States v. error See was tak- Bay argues that it Chesapeake (4th Cir.2002). 286 F.3d 753 by surprise when GNI offered en of a thermal about the existence opinion A. discov- on a review of the cutout. Based troubling turn first to the more issue We case, not that while we do doubt ery of of the admission about surprised was stipu- a cutout. GNI existence of thermal physical evidence testimony regarding physical examined the re- lates West cutout, a it on notice the existence day of the fan the trial mains before a cutout was existence of thermal opinion at that time that and formed During his continuing a issue GNI. a evidence of such thermal cutout existed. trial, before deposition taken two weeks opinion GNI did not this new disclose Harris, Chesapeake Bay’s electri- William Chesapeake Bay. counsel asked GNI’s expert, cal 26(e)(1) duty imposes a Fed.R.Civ.P. the fan had possible whether was if parties supplement disclosures Additionally, during the cutout. thermal to be information disclosed is later found expert Dr. joint forensic deposition Further, Rule 26 incomplete or incorrect. Martin, de- opined “[t]his he Richard requires disclosure of all not have a thermal cutout” vice did testimony. See Fed.R.Civ.P. will cutout] thermal “[glenerally [a (“The complete report shall contain at Dep. Martin 134- survive fire.” See opinions expressed to be statement all fact, deposition, Martin In the entire 35. ” .... therefor basis reasons before centered just taken week added)). (emphasis verifying appliance that the around fan, evidence of the Rule for and whether there was There is no basis in telling, Perhaps most to thermal cutout. distinguishing disclosures of taken two during deposition examination West or in rebut be used on direct counsel for holding erred in weeks before tal. The district court extensively him about the expert testimony Bay questioned that the disclosure of a thermal cutout. West testi- in rebuttal. existence required when it is offered 37(c)(1) evidence at trial "unless such provides not be used as that informa- 2. Fed.R.Civ.P. pursuant may to Rule failure is harmless....” tion not disclosed “every fíed that fan I’ve during looked at has a trial. electrical thermal cutout in it.” why Harris, When asked expert, had testified trial cutout, Dr. Martin found no thermal is nothing “[t]here that indicates that responded, “They didn’t look good enough [the fan] ever had a thermal cutout.” J.A. or Dep. [sic] it’s burned out....” West Nevertheless, 324. when GNI recalled Thus, although Chesapeake Bay was testify toWest about the existence of the surprised when West testified that he rebuttal, thermal cutout cutout, found evidence of a thermal it was Bay opportunity declined to cross-ex- clearly on position notice of his that one Further, amine West. after GNI rested existed. case, the court asked “Any surrebuttal?” J.A. factor, respect
With to the second Ches- Bay also opportunity. declined this Final- apeake Bay argues that it lacked the abili- ly, this, immediately after the court re- ty surprise to cure the because it had “no jury day leased for the kept but response.” rebuttal or Br. at 16. To the *5 attorneys in regard- order to hear motions contrary, Chesapeake Bay we find had not ing jury Chesapeake Bay instructions. did only ability any surprise, to cure but not ask to be heard on opportunity. also the the issue sur- Chesapeake Bay prise, and at no time expert testimony had asked for a continu- opin- available to it ing that ance or extended recess in to “physical there was no order afford evidence of trial, it opportunity thermal cutout. At to surprise. GNI intro- cure the deposition duced a summary of the find- factor, As to the third the district court’s joint ings expert Martin, forensic who willingness to hear further evidence from analyzed the remains of the fan.3 The Chesapeake Bay is indicative that curative summary included the fact that Dr. Martin not disrupted would have any signs cutout, “did not find of a thermal court, trial. To contrary, the district acknowledged but that does not mean that acting sua sponte, Bay offered Chesapeake the fan did not have a thermal cutout.” the opportunity to introduce a cross sum- joint Since Dr. Martin expert, was a Ches- mary of Dr. deposition, Martin’s of- and apeake Bay also had access to his Bay fered Chesapeake opportunity for that “[t]his device did not have a thermal following testimony. surrebuttal cutout” and that “[generally [a thermal factor, respect With to fourth cutout] will survive fire.” Martin at Dep. existence of thermal cutout in fan Chesapeake Bay 134-35. made no effort important to Chesapeake theory Bay’s to have admitted. At the of causation for the reasons described conclusion deposition pre- of the summary above. The existence of cutout weak- GNI, by sented specifi- district court up ened its claim that heat build caused cally Bay asked it Chesapeake any if had the fire. summary. cross J.A. 264. Chesapeake
Bay declined the opportunity. Finally, find by we the excuse offered
The conclusion GNI Chesapeake Bay for its to sup- failure disclose to be ability ported had the surprise to cure the but facts this case. GNI to capitalize failed on opportunities to do contends that it believed the fan remains so is reinforced three other instances importance were no further its after Although 3. testify timony. Dr. Martin not at deposition summary GNI offered of his tes- B. examination, neglected to “simply first from until retrieve the fan Martin Bay’s second issue Br. at This expla- before trial.” week court erred is whether the district appeal transcript of the supported by nation is testify to exces when it allowed taken one before deposition, Martin week voltage the fire. sive Martin, trial. for GNI told Dr. Counsel Bay that- this of causation alleges give you going “I’m to an address ask Expert Report was not disclosed West’s you to fan down to Fed-Ex [the remains] pursuant and must therefore be excluded me so that we can have for use at trial' 37(c)(1). to Rules Dep. next week.” Martin at 2002, On GNI delivered of the existence of a ther- October Confirmation Bay. Expert Report surprised Chesapeake mal cutout (1) Investiga- designed Rule This Report result avoid. consisted (2) Although regula- Report, shipyard we do find that GNI acted tive standard (3) faith, information, that does not excuse its failure bad tions and National Electri- notify immediately Requirements cal Code Commercial upon discovery of what it to be believed Wiring, and a letter from West remains of the cutout. Fur- counsel, thermal responding report GNI’s ther, our consideration of the fourth factor Chesapeake Bay’s electrical Harris. claim; in favor weighs January 2003, Chesapeake Bay filed On *6 limine, seeking to exclude question certainly in im- the evidence was a motion in portant theory to its of causation. Bay opinions West’s because unqualified that as an contended West was hand, Chesapeake Bay the other On was to expert, and that he failed disclose his aware of Mr. a West’s contention such Expert Report. in his The dis- opinions existed, and in cutout the fan was part in in granted trict court and denied possession of Dr. Martin until the week this motion. court held that part The however, trial. significantly, before More testimony expert would be limited West’s Chesapeake Bay any of failed avail itself Expert in his Re- to what was disclosed of opportunities to cure existed Chesapeake Bay’s motion to ex- port, but surprise. the effect of the district The testimony as un- clude West’s was denied Chesapeake Bay opportu- court offered an timely. Bay nity for surrebuttal. de- clined, though even its own expert was Chesapeake Bay contends that GNI testify contrary. available to to the Dr. fire originally solely attributed the a Martin, had the fan in his possession who of voltage spike created the absence a trial, opined
until week before in ground welding connection with the exist, deposi- a cutout such did not Therefore, argues, work. containing testimony tion had been voltage spiking, unrelated Chesapeake Bay into entered evidence. a ground to the existence or absence of or a continuance request did not recess work, the fan welding testimony. It attempt to seek his made no ignite the fire was undisclosed up burn surprise. to mitigate the effect of the and therefore inadmissible. factors, Weighing these we conclude that court’s find- admitting agree the undisclosed We with district ing provide did notice concerning report evidence of a thermal cut- that West’s voltage would spiking fan constituted harmless error. issue out trial, although finitively, it could have been more in generally it was disclosed clearly instance, delineated.4 Thus, For in his Expert Report. the district stated, Report, “[T]he ballast did court not abuse discretion allow- spike ... voltage receive blown [the testimony. ing the starting point ballast] was not the fire but good voltage was indication C. spiking.” “voltage He wrote that cir- Our conclusion admissibility as culating through ships hull with a [sic] GNI’s causation controls our floating path, return making unsta- analysis contention ... The change ble. ARC’s the weld- that it was entitled to a or directed verdict er provided voltage spikes throughout a new trial. find opin- Because we West’s ships electrical approxi- [sic] circuits and admissible, ion to be we conclude that mately 1 hour later fire was found.” jury there was sufficient evidence for the stated, spike He further “The that caused Further, find liable. heater/appliance spark to create a the district court did abuse its discre- voltage a high spike.... culprit The denying tion in the motion for a new trial
voltage not current.... Current causes justice. the interest See Atlas Food just breakers to trip, voltage excessive Serv., Vendors, Sys. Inc. & v. Crane Nat’l burns equipment out due to dielectric (4th Inc., Cir.1996) (“[I]t 99 F.3d breakdown.” In West’s letter in response duty is the [district court] of the to set Report, to Harris’ which was included grant aside the if verdict new Report, stated, Expert he “I dis- agree with findings and feel [voltage ... [1] the verdict is against the clear weight evidence, of the or [2] is based on spiking] possible damage cause of [sic].” West further stated, “[That voltage spike evidence which is false, or [3] will result justice, miscarriage though even there any should not have equipment effect on *7 may be substantial unknown,” is evidence which would and”[e]very downstream] bal- verdict.”). prevent last I looked at was direction blown which tells me voltage excessive was cause [sic] any equipment de- electrical/electronics III. In response
fects.” to Harris’ contention reasons, For the foregoing judgment that excessive current caused the fan Nugget, the district court in Golden Inc. stated, ignite, West “If rotor stopped v. Chesapeake Bay Fishing Company, [sic], excessive current would be drawn. L.C., 03-1339, No. Breakers would have The tripped. exter- AFFIRMED. signs nal wires to this appliance showed no melting wire inside out. But we know HAMILTON, Judge, Circuit Senior voltage by we had excessive testimony and dissenting: evidence of blown ballast.” J.A. 650-78. agree
We with the district Because court’s con- not receive clusion that theory anything case, while GNI’s of causa- to a fair I close trial this tion could have been de- I respectfully agree articulated more dissent. with the ma- (as Additionally, high voltage spikes in a letter enced series of indi- 21, 2001, September light dated internally GNI summarized cated blown ballast on board), position: -Ampro particularly began its initial "The cumulative effect once weld- vessel, Ampro's part ing directly these inexcusable on errors that led to the fire experi- gutted were that the GOLDEN NUGGET her.” J.A. 545. erred hold- jority that the district court testimony, expert rebuttal
ing that West’s on this wire. Crimp here right [A] physical evi- that he found to the effect a thermal how is consistent with That thermal cut-out on the remains of a dence be installed. protector would fan, excepted from the dictates of the (Rule) Procedure of Federal Rule of Civil (e)(1). However, I dis- there on Q anything else on Is there majority’s holding that the agree with with hav- also consistent any other wire of such constituted admission ought [sic] thermal cut-out ing been a error, subject thus, was not harmless there? 37(c)(1). I pursuant to Rule to exclusion majority’s holding disagree
also with causation, theory of two-step that GNI’s sufficiently dis- presented a switch was You can see where [A] expert report, such that closed in West’s is a switch. There is This installed. court did not abuse its discre- the district But this some other wires somewhere. allowing testify tion in to the West of a thermal cut-off. part of is one side reasons, I at trial. For these would judgment and remand for a new vacate that, prior
trial with the condition Q thing that sort of you Have seen Chesapeake Bay be allowed to conduct before? discovery regarding further evidence Yes, A sir. appeal, accordance challenged 338-40). (J.A. with Rule 26. poten has
Because mis powerful quite tial to “be both I. Dow leading,” Daubert v. Merrell case, part As rebuttal GNI re- Pharms., Inc., 579, 595, 113 509 U.S. S.Ct. expert opinion called testimo- give (internal 2786, 125 quo L.Ed.2d question physical on the ny whether omitted), process marks tation basic due of a remains of fan contained evidence subject expert testimony demands *8 In part, thermal cut-out. relevant cross-examination, “[vigorous presenta to following exchange transcript reveals evidence, careful in contrary tion of and during between counsel for GNI and West proof.” of Id. at struction on the burden testimony direct in rebuttal: omitted). (internal quotation marks BY ABEL: MR. 26(a)(2)(B) and Because GNI violated Rule (e)(1), Bay prevented Chesapeake Sir, Q had take a you have occasion to quoted subjecting expert from the above at close look the remains of the fan that to cross vigorous examination 63, right? is exhibit contrary from prevented presenting and Yes, A sir. at trial. evidence Sir, Q anything is there there respect, majority’s as- With all due to was a you believe that there leads contrary to do not withstand sertions on fan? thermal cut-out scrutiny. majority What the characterizes Yes, A sir. Bay’s opportuni- as declined surprise ties cure the effect of its Q you us what that is? to Can tell Moreover, amount nothing. alleged to Such declined put to the burden on Chesa- (1) Bay, very jury trial, at of a opportunities peake include: end sponte request to sua Bay’s continuance or opportunity to submit Dr. Richard (Dr. Martin) to fur- extended recess order conduct deposition testimony Martin’s discovery develop ther and re- credible that his pretrial examination of fan sponse expert testimony to submitted in debris did not reveal thermal cut-out or 26(a)(2)(B) blatant violation Rule is un- any other switching something or elements justifiable. By placing such burden on (2) cut-out; a separate as thermal Chesa- majority sends the peake Bay’s opportunity to recall own message compliance clear with Rule (Harris) expert William Harris in surre- 26(a)(2)(B) (e)(1) merely and discretion- previous testimony buttal to reiterate his indeed, idea, ary; only a nice no real with that there is nothing the fan remains to consequences from noncompliance. indicate that the fan ever had a thermal (3) (1) cut-out; and Chesapeake Bay’s Considering Chesapeake Bay’s lack oppor- ability tunity opportunity prej- to to cure the sponte request sua a continuance udice surprise majority that even the or extended recess order to afford it the acknowledges Chesapeake Bay suffered opportunity to surprise through cure its when testified rebuttal re- discovery. further garding physical evidence the exis- respect With the first two of these (2) fan, tence of a thermal cut-out three alleged opportunities, declined undisputed such importance of testimo- testimony of Dr. Martin far and Harris is ny in it completely undercut Chesa- general to too rebut West’s detailed and causation, peake Bay’s sole specific testimony, trial apparently while pitiful excuse offered GNI for holding hands, the burnt fan failing comply with Rule what led him to believe the fan had a (e)(1), inescapable the conclusion is thermal cut-out “crimp right was the here the district court abused its discretion on this wire. That is consistent with how overruling objection protector a thermal would be installed.” physi- West’s rebuttal regarding (J.A. 339). Moreover, being without cal evidence of a thermal cut-out on the expert armed with an minimum, witness Accordingly, fan. I would very specific rebut judgment and detailed vacate the and remand for a new that, testimony regarding physical with the condition evidence cut-out, be allowed to conduct further discov- thermal ery prior on the matter to such new trial. lacked ability to effectively cross exam- “ Indeed, ine West on this point. ‘the II. ability simply cross-examine an *9 concerning a new at trial is the appeal, Chesapeake Bay On chal- also cure, ability to ... expert the rules of [as] lenges the district of court’s admission disclosure are to designed oppo- allow an testimony setting West’s direct forth his to expert opinion nent examine an for two-step theory of causation. direct On develop to counter-testimony flaws and examination, West was asked if he had a ” through party’s experts.’ that own when, professional opinion as in to the Fixture, Southern Rack and v. line, States Inc. up? time the fan had its motor burn Co., 592, Sherwin-Williams 318 F.3d 598 hook of up answered: “On initial the West (4th Cir.2003). (J.A. 282). power.” then shore West was district agrees that it “with the asked, jury why concluding it is if “tell the he could pro- finding report did the that West’s up if motor fan when court’s that the burned voltage would be spiking that initially the vide notice power up, hooked shore trial, it have Id. although could an issue at days five fire didn’t occur until later?” Ante at clearly delineated.” more been responded: West spiking would voltage that 535-36. Notice oper- had they initially it Because when the hardly point. at is No an issue trial be ating they initially when improperly report that identified disputes one West’s connection, connection, wrong the the part of his voltage spiking as critical up voltage, they burned the fan. high the theory Significantly, causation. howev- captain the They opened up. So er, straightfor- in a report, the when read running, going anything wasn’t to see manner, ig- the opines that fan ward working, because the fan wasn’t because by a by voltage spike nited caused up they it was But when hooked open. (J.A. by in “change ARC’s the welder.” arcing to ground they the it and started 651) (“The by in ARC’s the welder change it, there, gave differ- they potential on spikes throughout provided voltage [the] fan start potential ence the to ship[’]s approximate- circuits and electrical signal heating again. receiving up found.”). later The ly hour the fire was 282-83). (J.A. answer, In his next West fails to address point majority critical resulted from explained arcing expert report disclosed is whether West’s voltage by welding work spikes caused his as evidence at opinion, admitted ship. on the up power initial hook of shore below, Bay argued con- exposure high leg to instant- ship’s argue appeal, tinues to two- West’s ly damage to the fan’s motor one) (ie., step theory (step causation through voltage spikes, such that sub- motor, burnup initial of the fan’s which welding sequent voltage spikes from the two) possible subsequent made (step ignite. to work were able cause fan originating days fire five later from fan work) welding an hour after following clearly question answer to this The pursuant should have been excluded Indeed, dining no. West was asked when 37(c)(1) Rule and the district court’s Janu- just his taken two weeks before deposition, 8, ary granting Chesapeake 2003 order trial, whether, report, in he anywhere his in limine Bay’s the extent that motion “explicitly thought that he “the sa[id]” expert to limit sought such motion West’s out coils of the fan were burned at trial “to what was disclosed high leg voltage spike when the ” expert report his 2002.... October answered, ?”, ... “No- up hooked (J.A. 54). According (J.A. 615). report, no.” where this two-step theory of causation was during cross examination at West admitted expert report Octo- not set forth deposition trial that was indeed his ber asserts (J.A. 294). In a case where testimony. reasonably only can read report that his witness himself admits solely opine caught fan fire express a report explicitly own does not “change the weld- because ARC’s very causation part critical voltage spikes the fan. er” created espouses that he *10 (J.A. 651). reasonably expected to have Bay cannot be is axio- majority leapt the crux of such informational chasm glosses The over merely I that the argument by Accordingly, matic. would hold America, district court erred in overruling Chesa- United States peake Bay’s timely objection to Plaintiff-Appellant, the admis- two-step theory sion West’s of causation v. testimony, his direct and would re- Christopher Hill, Lamont mand for a new trial with the condition Defendant-Appellee. minimum, Chesapeake Bay, aat be discovery allowed to conduct further 03-4024, Nos. 03-4098. prior the matter to such new trial.
United States of Appeals, Court Fourth Circuit. III. Argued Oct. conclusion,
In I am constrained ex- April Decided press that majoritys affirmance only case not creates unfair consequences it significantly weak-
ens, obliterates, if not our civil discovery process and the bite intended of Rule
37(c)(l)’s exclusionary blatantly rule. GNI not play discovery with rules regard West, yet, suffered no adverse consequences.
Indeed, GNI was able to use the effects of discovery very its own violations own significant advantage. tactical court This
should not readily the business of such
countenancing behavior. According- ly, with the which I conditions have al- forth, ready set I would vacate judg- ment and remand for a new trial. America,
UNITED STATES Plaintiff-Appellee,
v. Christopher HILL, Lament
Defendant-Appellant.