Steele v. Kenner , 129 F. App'x 777 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1812
FRANK STEELE,
Plaintiff - Appellant,
versus
DAVID KENNER; KELLER TRANSPORTATION,
INCORPORATED, a Maryland Corporation,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-03-
34-RWT)
Argued: February 2, 2005 Decided: April 20, 2005
Before WILKINSON and KING, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Frederick Dominick Greco, McLean, Virginia, for Appellant.
Robert G. McGinley, Lanham, Maryland, for Appellees. ON BRIEF: W.
Scott Greco, GRECO & GRECO, P.C., McLean, Virginia, for Appellant.
Joshua M. Greenberg, LAW OFFICES OF ROBERT G. MCGINLEY, P.C.,
Lanham, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant Frank Steele brought this negligence action under
the district court’s diversity jurisdiction against Keller
Transportation, Inc. and its employee, David Kenner, after a bus
driven by Kenner struck Steele as he was crossing the street in
Washington, D.C. Defendants admitted liability, and following a
bench trial on damages, the court entered judgment for Steele.
Steele appealed, challenging a number of the district court’s
evidentiary rulings. We find no reversible error and affirm.
I.
Steele claims that the January 31, 2001, bus accident
aggravated his pre-existing depression, sleep apnea, and post-
traumatic stress disorder, leaving him permanently disabled. Dr.
Martin Stein, a psychiatrist, had been treating Steele since
November 2000 for these conditions and continued to treat Steele
following the bus accident. In October 2002, however, pursuant to
a Consent Order and following an investigation into his practice,
Dr. Stein surrendered his license to the Virginia Board of
Medicine.
Steele filed this action on January 7, 2003. Following a
three-day bench trial on the issue of damages, the district court
found no evidence of a long-term disability and entered judgment
for Steele in the amount of $46,667.37. On appeal, Steele contends
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that the district court’s erroneous evidentiary rulings precluded
him from proving that the bus accident permanently disabled him.
Before trial, Steele designated a number of treating
physicians to testify on the aggravation of his pre-existing
conditions, including Dr. Stein, but he did not designate any
expert witnesses under Rule 26(a)(2)(B).1 The defendants deposed
Dr. Stein on September 23, 2003; Dr. Stein refused to answer
questions concerning the surrender of his medical license on the
ground that the testimony would tend to incriminate him.
On December 4, 2003, the U.S. Magistrate Judge permitted
Steele to supplement his Rule 26(a)(2) disclosure by adding Dr.
Steven Macedo, a neurologist, as an expert for rebuttal. Later,
Steele also sought leave to have Dr. Macedo testify as an expert on
causation in his case-in-chief, which the court denied because
Steele’s deadline for Rule 26(a)(2) designation of experts had
passed.
At trial, Steele did not present any live medical testimony in
his case-in-chief. Instead, the court reviewed the deposition
testimony of several treating physicians, including Dr. Stein, Dr.
Michael Clark, who treated Steele after the bus accident, and Dr.
1
Steele noted that Dr. Stein had surrendered his license to
practice medicine, and reserved “the right to ask the court to
allow [him] to name further experts depending on the issues raised
in Dr. Stein’s deposition.”
3
Elizabeth Quig, a clinical neuropsychologist to whom Dr. Clark
referred Steele.
Following Steele’s case-in-chief, the defendants introduced
the expert testimony of Dr. Susan Antell, a neuropsychologist, who
testified that the bus accident did not permanently disable Steele.
In rebuttal, Steele sought to introduce the testimony of Dr. Macedo
as an expert on causation. The court excluded Dr. Macedo’s
testimony, however, because it concluded that Dr. Macedo was not
qualified to testify as an expert in neuropsychology and because
any other testimony was not rebuttal evidence.
After hearing the testimony of eyewitnesses, expert witnesses,
treating physicians, and Steele himself, the court found
“significant failures of proof” as to Steele’s claim that the bus
accident aggravated his pre-existing conditions. J.A. 1373. The
court “[did] not find any credible evidence that would...show that
[Steele had] met his burden of proving...that he sustained any wage
loss that would...disable him to any significant degree beyond
June, 2001.” J.A. 1369. This appeal followed.
II.
Steele claims that the district court erred by excluding Dr.
Macedo’s testimony from his case-in-chief. We review a district
court’s exclusion of expert witnesses for abuse of discretion. See
General Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997). Rule
4
37(c)(1) provides that a party who, “without substantial
justification fails to disclose information required by Rule
26(a)...is not, unless such failure is harmless... permitted to use
as evidence at trial...any witness or information not so
disclosed.” Fed. R. Civ. P. 37(c)(1). The district court has
“broad discretion” to determine whether a Rule 26(a) violation is
substantially justified or harmless. Southern States Rack &
Fixture, Inc. v. Sherwin Williams Co., 318 F.3d 592, 597 (4th Cir.
2003).
Steele argues that Dr. Stein’s refusal to answer questions
about the surrender of his medical license, requiring Steele to
find a new causation expert, constituted “substantial
justification” for his failure to designate Dr. Macedo as a case-
in-chief witness before the Rule 26(a)(2) disclosure deadline.2
However, we find that the district court acted well within its
discretion in concluding otherwise.
First, we note that Steele never designated Dr. Stein as an
expert. Second, in light of the fact that Dr. Stein surrendered
his medical license three months before Steele filed suit, we find
no fault with the district court’s conclusion that it would have
been “reasonable and prudent for [Steele]...to have contemplated
2
Plaintiff’s Rule 26(a)(2) disclosure deadline was September
28, 2003. On December 5, 2003, the U.S. Magistrate Judge granted
Steele permission to supplement his disclosure to add rebuttal
experts. Steele did not seek to designate Dr. Macedo as a case-in-
chief expert until December 11, 2003.
5
that Dr. Stein was at least a potentially difficult witness...[and]
there was ample time for [Steele] to have located another expert”
on causation. J.A. 1289. Therefore, the district court did not
abuse its discretion in refusing to extend the deadline further and
in excluding Dr. Macedo’s testimony from Steele’s case-in-chief.
III.
Steele also claims that the court abused its discretion by
excluding Dr. Macedo’s testimony on rebuttal. “Rebuttal evidence
may be introduced only to counter new facts presented in the
defendant’s case-in-chief.” Allen v. Prince George’s County, 737
F.2d 1299, 1304 (4th Cir. 1984). A party may not use rebuttal as
an attempt to introduce evidence that he should have introduced in
his case-in-chief. See U.S. v. Stitt, 250 F.3d 878,897 (4th Cir.
2001) (defining rebuttal evidence as “evidence given to explain,
repel, counteract, or disprove evidence offered by the adverse
party.”) Further, a rebuttal witness must be appropriately
qualified to challenge the defendant’s expert.
We find that the district court did not abuse its discretion
in determining that Dr. Macedo’s testimony on causation was not
rebuttal evidence. After reviewing Dr. Macedo’s expert report and
hearing a proffer of Dr. Macedo’s testimony, the district court
determined that “the only area where he addresse[d] questions that
seem[ed] to be potentially of a rebuttal nature...[was] his
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criticism of the techniques used by Dr. Antell.” J.A. 659. The
court was within its discretion to exclude testimony by Dr. Macedo
that was not responsive to the defendants’ expert testimony.
Nor did the district court abuse its discretion in finding
that Dr. Macedo was not qualified to challenge Dr. Antell’s
testimony. The court noted that Dr. Macedo’s area of expertise was
in neurology and that “to allow him to wander into the
neuropsychology [field] and testify about the testing procedures
utilized by Dr. Antell would seem...to allow him to be outside his
area of expertise.” J.A. 662. Dr. Macedo was not a
neuropsychologist; he had never qualified as an expert in
neuropsychology; he did not review or score raw testing data on a
regular basis; and he did not consult with a neuropsychologist in
reviewing Dr. Antell’s raw testing data. The qualification of an
expert witness is quintessentially a district court determination
and we find no abuse of discretion.
IV.
Steele also argues that the district court improperly
considered facts not in evidence in weighing Dr. Stein’s testimony.
Although his argument is somewhat unclear, Steele appears to
complain that the district court discounted Dr. Stein’s testimony
based on facts detailed in the Consent Order (the Order) under
which Dr. Stein voluntarily surrendered his medical license, though
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neither party introduced the Order. We do not believe that a fair
reading of the record supports the argument. However, even if we
were to conclude otherwise, we would not find it improper.
Not only did the parties discuss the circumstances of Dr.
Stein’s surrender of his medical license at pretrial hearings, but
they also made the Order, as well as two Washington Post articles
detailing those circumstances, a part of the record. J.A. 86-98;
165-186. The circumstances under which Dr. Stein surrendered his
medical license were not irrelevant: they intertwined Dr. Stein’s
assertion of his Fifth Amendment privilege, and they were not
improperly before the court. Accordingly, we find no error.
V.
Steele also contends that the district court erred in
discounting the testimony of Drs. Clark and Quig. The weight
afforded the testimony of a particular witness is the fact finder’s
exclusive prerogative unless clearly erroneous. Fed. R. Civ. P.
52(a); See Inwood Laboratories,Inc. v. Ives Laboratories, Inc., 456
U.S. 844, 855 (1982). Here, Steele failed to inform Drs. Clark and
Quig of his substantial history with depression and a post-
traumatic stress disorder. Under the circumstances, the district
court’s decision discounting their testimony, was definitely not
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“arbitrary or irrational.” U.S. v. Achiekwelu, 112 F.3d 747, 753
(4th Cir. 1997).3 Thus, there is no clear error.
VI.
Finally, Steele claims that the district court erred in
sustaining the defendants’ objection to the use of a chart
reflecting work missed from January through May 2001 as a result of
the bus accident and calculating approximate lost wages.4 We note
that the court allowed counsel to use an alternative exhibit,
Steele’s personal calendar, to refresh Steele’s recollection of the
days he missed work as a result of the accident. In addition, we
note that the court indicated in its findings of fact that it had
reviewed the chart as an “aid” to Steele’s testimony. J.A. 1367.
Under these circumstances, we find no indication of prejudice.
VII.
After an exhaustive review of the record in this case, we find
no indication of error on any of the challenged matters.
Accordingly, the judgment of the district court is affirmed.
AFFIRMED
3
Indeed, when Dr. Quig learned Steele’s history, she withdrew
her expert opinion as to the cause of his injuries.
4
Counsel for Steele attempted to use the chart during Steele’s
testimony to refresh his recollection. The court excluded the
chart on the grounds that it was “extraordinarily leading.”
9