IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CONTINENTAL CASUALTY §

COMPANY, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-1866-D

VS. §

 §

ST. PAUL FIRE & MARINE §

INSURANCE COMPANY, §

 §

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

The court must decide whether to exclude the testimony of an

expert whom defendant failed to designate by the deadline for

making disclosures under Fed. R. Civ. P. 26(a)(2)(B), which the

court by order applied to a party with the burden of proof on a

claim or defense. For the reasons that follow, the court holds

that defendant should have designated the expert based on his

opinions concerning the affirmative defense of comparative fault,

but that the prejudice to plaintiff and intervenor can be cured by

allowing them to designate rebuttal experts on this affirmative

defense and continuing the trial of the case to the next available

civil trial docket.

I

This is a removed action by plaintiff Continental Casualty

Company (“Continental”) and intervenor First Specialty Insurance

Corporation (“First Specialty”), two excess insurance carriers,

against defendant St. Paul Fire & Marine Insurance Company (“St.

 

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Paul”), a primary insurance carrier. Continental and First

Specialty allege that St. Paul negligently failed to settle within

its policy limits an underlying state-court lawsuit brought against

USA Truck, Inc. (“USA Truck”) and its driver.

Continental and First Specialty move to strike St. Paul’s

designation of Thomas F. Segalla, Esquire (“Segalla”) as an expert

insofar as his testimony relates to the affirmative defenses of

release, settlement, and comparative fault. They maintain that St.

Paul designated Segalla on May 30, 2006, the amended deadline for

designating rebuttal expert witnesses, rather than on May 2, 2005,

the deadline for designating experts testifying as to a claim or

defense as to which St. Paul has the burden of proof. Continental

and First Specialty complain that St. Paul’s designation——over one

year late——prejudices them and that Segalla’s expert opinions that

relate to the affirmative defenses of release, settlement, and

comparative fault should be excluded from the trial evidence.

Alternatively, they request a 60-day extension of time to designate

rebuttal experts and related relief, including precluding St. Paul

from conducing discovery on issues related to the newly designated

experts, because discovery would jeopardize compliance with

remaining deadlines and the October 30, 2006 trial setting.

St. Paul responds that Segalla’s expert opinions that relate

to release, settlement, and comparative fault are proper rebuttal

opinions that were timely designated and that Continental and First

 

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Specialty have failed to demonstrate harmful prejudice. 

II

The court considers first whether Segalla’s expert opinions

that relate to release, settlement, and comparative fault are

proper rebuttal. 

A

St. Paul contends the opinions in question rebut the opinions

and report of Gary G. Beck (“Beck”), the expert whom Continental

and First Specialty have designated. It reasons that the fact that

Beck’s report addressed issues related to St. Paul’s affirmative

defenses made it legitimate and necessary for Segalla to address

the same issues in his report.

This court has held that 

[t]o determine whether a disclosure is

properly included under Rule 26(a)(2)(C)

rather than under Rule 26(a)(2)(B), it will

often be helpful to answer these three

questions: First, what evidence does the

rebuttal expert purport to contradict or

rebut? Second, is the evidence disclosed as

rebuttal evidence on the same subject matter

as that identified by another party in its

Rule 26(a)(2)(B) disclosure? Third, is the

evidence disclosed as rebuttal evidence

intended solely to contradict or rebut that

evidence?

Poly-Am., Inc. v. Serrot Int’l, Inc., 2002 WL 1996561, at *15 (N.D.

Tex. Aug. 26, 2002) (Fitzwater, J.). Additionally, the court has

explained that

 

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[g]enerally speaking, affirmative or avoidance

defenses are unrelated to the plaintiff’s

prima facie case. Avoidance or affirmative

defenses include allegations that admit the

allegations of the complaint but suggest some

other reason why there is no right of

recovery, and that concern allegations outside

of the plaintiff’s prima facie case that the

defendant therefore cannot raise by a simple

denial in the answer.

U.S. Bank Nat’l Ass’n v. Safeguard Ins. Co., 422 F.Supp.2d 698, 705

n.13 (N.D. Tex. 2006) (Fitzwater, J.) (citations, internal

quotation marks, and ellipses omitted). 

B

The opinions that Segalla offers concerning comparative fault

are not rebuttal opinions. Beck opined that it was negligent for

St. Paul not to settle the claim against USA Truck. Segalla

disagrees that St. Paul was negligent and opines that it was not.

See D. App. 8-9, 10. Although this opinion is a rebuttal opinion,

Segalla also opines that Continental was negligent in failing to

settle. See id. at 11. He does so in the part of his expert

report that expressly addresses “Continental’s Comparative Fault.”

Id. And he specifically refers to St. Paul’s affirmative defense

of comparative fault. Id. Segalla’s opinions concerning

Continental’s comparative fault, see id. at 11-12, do not

contradict or rebut Beck’s opinion concerning St. Paul’s fault,

which relates to Continental and First Specialty’s claim that St.

Paul negligently failed to settle. The evidence is not disclosed

as rebuttal evidence on the same subject matter as that identified

 

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1The court disagrees with St. Paul’s reasoning that, once

Continental and First Specialty designated expert testimony

concerning St. Paul’s negligence, the entire subject matter of

negligence——including the affirmative defense of comparative

fault——fell within the scope of expert rebuttal evidence. This

rationale overlooks the fact that court imposed the initial

obligation to designate an expert on the party with the burden of

proof on a claim or defense, and comparative fault is an

affirmative defense.

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by Continental and First Specialty in their Rule 26(a)(2)(B)

disclosures, nor is it disclosed as rebuttal evidence intended

solely to contradict or rebut that evidence. Instead, Segalla is

clearly opining in support of St. Paul’s affirmative defense of

comparative fault.1

C

Segalla’s opinions concerning release and settlement, however,

are rebuttal. He is purporting to contradict or rebut Beck’s

opinion that the release between St. Paul and USA Truck was

overreaching. The evidence is disclosed as rebuttal evidence on

the same subject matter as that identified by Continental and First

Specialty in their Rule 26(a)(2)(B) disclosures. See D. App. 11.

Any part of his opinion that is not explicitly disclosed as

rebuttal evidence intended solely to contradict or rebut that

evidence is sufficiently related to what it is disclosed as to be

properly characterized as rebuttal evidence. See id. at 10.

 

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III

The court considers next whether Segalla’s opinions concerning

the comparative fault affirmative defense should be excluded from

the trial.

A

In deciding whether to exclude the testimony of an expert

witness whom a party did not properly designate, the court’s

discretion is guided by considering the following factors: “(1) the

explanation for the failure to identify the witness, (2) the

importance of the testimony, (3) the potential prejudice in

allowing the testimony, and (4) the availability of a continuance

to cure such prejudice.” Wright v. Blythe-Nelson, 2001 WL 804529,

at *2 (N.D. Tex. July 10, 2001) (Fitzwater, J.) (citing Geiserman

v. MacDonald, 893 F.2d 787, 791 (5th Cir. 1990)). 

St. Paul recognizes that these are the relevant factors,

although it recites them in a slightly different order, see D. Br.

6-7, and it does not address all of them in detail. It mentions

that Segalla’s testimony is important because it needs a rebuttal

expert to refute the expert testimony offered by Continental and

First Specialty. St. Paul maintains that any prejudice to

Continental and First Specialty will be negligible because the

designation was timely under the scheduling order, was made five

months before the trial date, and was done before any depositions

were conducted in the case. At the conclusion of its brief, St.

 

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Paul focuses solely on the question of harmful prejudice and

maintains that Continental and First Specialty have failed to make

this showing.

B

1

St. Paul has not offered an explicit explanation for failing

to designate Segalla as a Rule 26(a)(2)(B) expert. Implicitly, it

asserts that it was not required to identify him until the deadline

for rebuttal experts. Because the court holds that St. Paul was

obligated to designate him under Rule 26(a)(2)(B) and the court’s

scheduling order as an expert on the affirmative defense of

comparative fault, this factor favors exclusion. St. Paul’s error

in interpreting the requirements of a Federal Rule of Civil

Procedure and the court’s scheduling order does not provide a

satisfactory explanation under the circumstances of this case.

2

The court next addresses the importance of the testimony. St.

Paul suggests that Segalla’s testimony is important because it

needs its own expert to rebut the expert testimony offered by

Continental and First Specialty, and it expresses concern about the

prejudicial impact on the jury caused by its lack of an expert. 

It appears to the court that, without this testimony, St. Paul

will lack an expert who can assist the trier of fact in

understanding why its affirmative defense of comparative fault has

 

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merit. Continental and First Specialty do not contest that the

opinion testimony is important to St. Paul, and the court concludes

that it is.

3

The court next considers the potential prejudice in allowing

the testimony. As a threshold matter, it disagrees with St. Paul’s

contention that the supposed failure of Continental and First

Specialty “to demonstrate prejudice is fatal to their motion.” D.

Br. 9. Prejudice is but one of four factors that the court

considers in deciding whether to exclude the evidence. And the

burden is on St. Paul——the erring party——to show that Continental

and First Specialty will not be unduly prejudiced. See Wright,

2001 WL 804529, at *5 (addressing, inter alia, whether party who

failed to designate expert could establish absence of prejudice).

St. Paul has failed to establish that Continental and First

Specialty will not be unduly prejudiced if St. Paul is allowed to

rely on opinion evidence of comparative fault that they are not

able to refute through the designation of a rebuttal expert

witness. St. Paul maintains that Continental and First Specialty

have failed to show such prejudice and that Segalla’s report is

merely responsive to Beck’s report and opinions. It also contends

that Segalla can be examined at his deposition scheduled for August

 

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2St. Paul also relies on a mistaken definition of rebuttal

evidence. See D. Br. 10 & n.27. The definition that St. Paul

addresses concerns what is considered to be rebuttal evidence at

trial——i.e., offered by a plaintiff to refute new evidence

introduced during the defendant’s case-in-chief——not a rebuttal

expert within the meaning of Rule 26(a)(2)(C).

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8, 2006.2 The court finds that St. Paul has failed to demonstrate

that Continental and First Specialty will not be prejudiced. This

is so at least for the reason that they should be allowed to

designate a rebuttal expert witness and to present testimony

refuting St. Paul’s affirmative defense of comparative fault, a

defense that, if established, will materially impact their right to

recover. Merely deposing Segalla concerning his opinions will not

enable them to present at trial expert opinion testimony that

affirmatively refutes his.

4

Finally, the court addresses whether a continuance can cure

the prejudice to Continental and First Specialty. 

In their alternative motion, Continental and First Specialty

implicitly acknowledge that a continuance can cure the prejudice,

provided certain conditions are imposed. They request as

alternative relief that the court grant them 60 days to designate

a rebuttal expert and that St. Paul be precluded from conducting

discovery so that the October 30, 2006 trial setting will not be

jeopardized. St. Paul does not address the continuance factor

except perhaps inferentially, by contending that Segalla’s

 

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3

This is the next available civil docket under the

circumstances of this case.

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deposition can be taken in August and arguing that a 60-day

continuance is unnecessary because Continental and First Specialty

do not need rebuttal evidence concerning Segalla’s opinions.

The court holds that the prejudice to Continental and First

Specialty can be cured by giving them 60 days to designate one or

more rebuttal experts on the affirmative defense of comparative

fault, allowing St. Paul to depose any such experts within 45 days

of the date of designation, and continuing the trial of this case

to the docket of February 5, 2007.3 In their alternative motion,

Continental and First Specialty request a 60-day extension of the

designation deadline, calculated according to the date of the

court’s order on their motion. Briefing on the motion concluded

with the filing of their reply brief on August 9, 2006. They

therefore knew that a decision issued within a reasonable time

after the close of briefing would result in a designation deadline

close to the date of trial. In fact, the court’s decision allows

Continental and First Specialty to designate experts on October 16,

2006 (the Monday following the sixtieth day), the day pretrial

materials are due based on the October 30, 2006 trial setting, and

a date after the parties must make their Rule 26(a)(3) disclosures.

The case must therefore be continued in any event to avoid the

difficulties that would be posed by the designation of an expert

 

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witness under such circumstances. Because the case must be

continued, it will not unduly prejudice Continental and First

Specialty to permit St. Paul a reasonable period to depose any

expert who is designated.

* * *

Accordingly, the June 23, 2006 motion of Continental and First

Specialty to strike St. Paul’s expert witness designation is

denied. Their alternative motion for leave for extension of time

is granted as follows. Continental and First Specialty shall have

until October 16, 2006 to designate rebuttal experts as to St.

Paul’s affirmative defense of comparative fault. St. Paul shall

have 45 days after the designation to depose any such experts. The

trial of this case is continued to the two-week docket of February

5, 2007.

SO ORDERED.

August 15, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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