May v. Stahl ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARK E. MAY,
Plaintiff-Appellant,
v.
No. 95-2371
RICHARD J. STAHL; DIXON, SMITH &
STAHL,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-94-1408-A)
Argued: June 5, 1996
Decided: June 27, 1996
Before WILLIAMS and MOTZ, Circuit Judges, and CURRIE,
United States District Judge for the District of South Carolina,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Louis Raymond Paulick, Fairfax, Virginia, for Appellant.
John Otto Easton, JORDAN, COYNE & SAVITS, Fairfax, Virginia,
for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Mark E. May brought this diversity action against Richard J. Stahl
and his law firm, Dixon, Smith & Stahl, alleging legal malpractice.
Following a one and a half day trial, the jury returned a verdict in
favor of the defendant attorneys. May now appeals two evidentiary
rulings -- the district court's pre-trial ruling excluding a handwriting
expert witness and the district court's ruling during trial excluding the
testimony of a legal ethics expert. We affirm.
I.
May first contends that the district court erred in affirming a magis-
trate judge's ruling denying him an extension of time to comply with
the court's scheduling order. The scheduling order required that the
identities of expert witnesses be disclosed at least thirty days prior to
the pretrial conference and that all experts' reports be submitted
before the close of discovery. May failed to submit his handwriting
expert's report within the stated time period, but moved for an exten-
sion of time in which to do so. The magistrate judge denied this relief.
When appealing this ruling to the district court, May acknowledged
that the handwriting expert's report had not yet been prepared and
that counsel had been unable to contact the expert, who was then out
of the country and could not be reached. The district court concluded
that the magistrate judge's ruling was not clearly erroneous.
On appeal, May argues that the district court erred in affirming the
denial of an extension of time in which to comply with the scheduling
order. We review the district court's evidentiary rulings under an
abuse of discretion standard. Persinger v. Norfolk & W. Ry. Co., 920
F.2d 1185, 1187 (4th Cir. 1990). A district court is afforded "substan-
tial discretion in managing discovery . . . ." Lone Star Steakhouse &
Saloon v. Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995).
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The scheduling order was consistent with Fed. R. Civ. P.
26(a)(2)(B) and (C), which provide for disclosure of expert reports "at
the times and in the sequence directed by the court." If a party fails
to disclose information required under Rule 26(a), that party "shall
not . . . be permitted to use as evidence at a trial, at a hearing, or on
a motion any witness not so disclosed." Fed. R. Civ. P. 37(c)(1). The
district court had discretion to exclude reports that were not timely
filed in accordance with its scheduling order and with Fed. R. Civ. P.
26(a)(2)(B).
II.
May also argues that the district court erred in excluding the cumu-
lative testimony of another expert witness. The witness, Mr. Tague,
a professor at Georgetown Law School, was scheduled to testify
regarding the conflict of interest of the defendant attorneys. The court
had already heard similar testimony from another expert witness, Mr.
Harrison. Before Mr. Tague was to testify, the district court warned
against the use of cumulative testimony. Although the court did not
prohibit Mr. Tague from testifying, it stated:
I'm not going to listen to your other expert tell me the same
thing that Mr. Harrison has. If he's got something new that
he's going to say, fine, but I'm not going to listen to this
twice about the conflict of interest and what he should have
done.
There was no abuse of discretion in the court's attempt to limit
cumulative testimony. It is well established that relevant evidence
may be excluded "if its probative value is substantially outweighed by
. . . considerations of undue delay, waste of time, or needless presen-
tation of cumulative evidence." Fed. R. Evid. 403. See also United
States v. Hernandez, 975 F.2d 1035, 1041 (4th Cir. 1992); Bostick Oil
Co., Inc. v. Michelin Tire Corp., Com. Div., 702 F.2d 1207, 1221 (4th
Cir.), cert. denied, 464 U.S. 894 (1983).
AFFIRMED
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