                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


GOLDEN NUGGET, INCORPORATED;           
DAVID HICKMAN; INDIAN HARBOR
INSURANCE COMPANY,
               Plaintiffs-Appellees,
                 v.                             No. 03-1339

CHESAPEAKE BAY FISHING COMPANY,
L.C.,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
            Richard L. Williams, Senior District Judge.
                           (CA-02-537)

                      Argued: December 4, 2003

                       Decided: April 2, 2004

     Before WILKINSON and DUNCAN, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed by unpublished opinion. Judge Duncan wrote the opinion,
in which Judge Wilkinson joined. Senior Judge Hamilton wrote a dis-
senting opinion.


                            COUNSEL

ARGUED: John Early Holloway, HUNTON & WILLIAMS, L.L.P.,
Norfolk, Virginia, for Appellant. Megan Elizabeth Burns, WIL-
2            GOLDEN NUGGET v. CHESAPEAKE BAY FISHING
LIAMS MULLEN, Newport News, Virginia, for Appellees. ON
BRIEF: Benita W. Ellen, HUNTON & WILLIAMS, L.L.P., Norfolk,
Virginia, for Appellant. Christopher A. Abel, WILLIAMS MULLEN,
Newport News, Virginia; Frank L. Corrado, Jr., Stephen Barry,
ROSSI, BARRY, CORRADO, GRASSI & GIBSON, P.C., Wild-
wood, New Jersey, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

DUNCAN, Circuit Judge:

   Following trial, the jury found Appellant Chesapeake Bay Fishing
Company, L.L.C. ("Chesapeake Bay") liable for damages to the GOL-
DEN NUGGET, a fishing vessel owned by Appellee Golden Nugget,
Inc., captained by Appellee David Hickman, and insured by Appellee
Indian Harbor Insurance Company (collectively, "GNI"). Chesapeake
Bay challenges the district court’s decision permitting GNI to intro-
duce expert opinions that Chesapeake Bay contends were not previ-
ously disclosed to it and the denial of its motion for judgment as a
matter of law or a new trial. Because we conclude that the evidentiary
error was harmless and that the district court properly denied Chesa-
peake Bay’s motion for judgment as a matter of law or a new trial,
we affirm.

                                  I.

   In October 2000, GNI entered into a contract with Ampro Ship-
yard, owned by Chesapeake Bay, for routine repair and maintenance
on the F/V GOLDEN NUGGET. On October 20, 2000, the GOLDEN
NUGGET was placed on a marine railway and removed from the
water. In preparation for the repair work, an employee of Chesapeake
Bay attempted to provide a shore power hookup to the vessel by plug-
ging its shore power cable into a receptacle at the shipyard. When the
             GOLDEN NUGGET v. CHESAPEAKE BAY FISHING                 3
cable was plugged in, the circuit breaker in the shore power facility
tripped, as did the circuit breaker on the GOLDEN NUGGET. The
shipyard employee reset the breakers and attempted to plug the shore
power cable in again; the shore power circuit breaker tripped again.
The shore power cable had four wires, colored white, red, black, and
green, and on the third attempt an employee managed to provide
shore power to the vessel by cutting the white wire. This time the
breaker did not trip. Once power was connected, Captain Hickman
closed the vessel cabin and departed.

   Five days later, shipyard employees began welding work on the
outside stern area of the GOLDEN NUGGET. Later that day, a yard
employee noticed smoke coming from the cabin of the vessel, and a
fire was discovered.

   After the fire was extinguished, investigators found a burned appli-
ance on a lower bunk in one of the bunk rooms. The parties later
agreed that the appliance was a fan, that the fan was the source of the
fire, and that the fan’s switch was in the "on" position when the fire
started.

   At trial, Chesapeake Bay contended that the fan had been left on
and unattended while surrounded by flammable paper products. Ches-
apeake Bay theorized that the fan’s blades were blocked and could
not turn, and the eventual heat build-up of the fan caused the paper
products to ignite. GNI argued that a voltage spike caused by the ini-
tial failed shore power hookup damaged the fan. Under GNI’s theory
of causation, the later voltage spiking related to the welding caused
the damaged fan to spark and ignite the fire.

   In a bifurcated trial, the jury found Chesapeake Bay liable for neg-
ligence, breach of implied warranty of workmanlike performance, and
breach of a bailment contract. The court entered a final judgment
against Chesapeake Bay in the amount of $425,558.

   During trial, Chesapeake Bay raised two objections to the admis-
sion of testimony by Frederick West, GNI’s expert witness, that form
the basis of this appeal. First, Chesapeake Bay objected to the admis-
sion of West’s expert opinion that voltage spiking caused the fire.
Chesapeake Bay argued that the opinion was not disclosed in West’s
4            GOLDEN NUGGET v. CHESAPEAKE BAY FISHING
Expert Report as required by Fed. R. Civ. P. 26.1 Second, Chesapeake
Bay objected to the admission of West’s testimony regarding the exis-
tence of a thermal cutout on the fan that sparked the fire. A thermal
cutout causes an appliance to turn off in the presence of heat or exces-
sive current, but is not affected by excessive voltage. Confirmation of
a cutout therefore undercut Chesapeake Bay’s theory of causation.
The district court overruled both objections.

   After the entry of judgment, Chesapeake Bay made a timely
motion for judgment as a matter of law or alternatively for a new trial,
again arguing that West’s causation opinion was improperly admitted.
The district court denied this motion, finding that West’s expert testi-
mony tracked information properly disclosed in his Expert Report.
Additionally, the district court found that even if the testimony varied
slightly from the disclosed information, that variation was harmless.
The district court further ruled that West’s testimony about the ther-
mal cutout was elicited during GNI’s rebuttal case, and that the use
of the undisclosed opinion on rebuttal did not violate Rule 26.

                                   II.

   A district court’s evidentiary rulings, including rulings on the
admissibility of expert testimony, are reviewed for an abuse of discre-
tion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997). An
abuse of discretion occurs when a district court makes an error of law.
See United States v. Barile, 286 F.3d 749, 753 (4th Cir. 2002).

                                   A.

  We turn first to the more troubling issue of the admission of testi-
mony about the existence of a thermal cutout. GNI stipulates that
West examined the physical remains of the fan the day before the trial
and formed the opinion at that time that evidence of such a thermal
cutout existed. GNI did not disclose this new opinion to Chesapeake
Bay.
    1
   See Fed. R. Civ. P. 26(a)(2)(B) (requiring disclosure of a written
report prepared and signed by an expert witness, which "shall contain a
complete statement of all opinions to be expressed and the basis and rea-
sons therefor . . . .").
              GOLDEN NUGGET v. CHESAPEAKE BAY FISHING                   5
   Fed. R. Civ. P. 26(e)(1) imposes a duty on parties to supplement
disclosures if the information disclosed is later found to be incomplete
or incorrect. Further, Rule 26 requires disclosure of all expert opinion
testimony. See Fed. R. Civ. P. 26(a)(2)(B) ("The report shall contain
a complete statement of all opinions to be expressed and the basis and
reasons therefor . . . ." (emphasis added)).

   There is no basis in the Rule for distinguishing disclosures of testi-
mony to be used on direct examination or in rebuttal. The district
court erred in holding that the disclosure of expert testimony is not
required when it is offered in rebuttal. We turn, then, to a consider-
ation of whether the error is harmless.2

   We base an analysis of harmless error on the five factors in South-
ern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d
592, 597 (4th Cir. 2003), considering: (1) the level of surprise to the
party against whom the evidence would be offered; (2) the ability of
that party to cure the surprise; (3) the extent to which allowing the
evidence would disrupt the trial; (4) the importance of the evidence;
and (5) the nondisclosing party’s explanation for its failure to disclose
the evidence.

   Chesapeake Bay argues that it was taken by surprise when GNI
offered West’s opinion about the existence of a thermal cutout. Based
on a review of the discovery in this case, while we do not doubt that
Chesapeake Bay was surprised by West’s testimony regarding physi-
cal evidence of the existence of a cutout, it was on notice that the
existence of a thermal cutout was a continuing issue for GNI. During
his deposition taken two weeks before trial, William Harris, Chesa-
peake Bay’s electrical expert, was asked by GNI’s counsel whether
it was possible that the fan had a thermal cutout. Additionally, during
the deposition of joint forensic expert Dr. Richard Martin, he opined
that "[t]his device did not have a thermal cutout" and that "[g]enerally
[a thermal cutout] will survive a fire." See Martin Dep. at 134-35. In
fact, the entire Martin deposition, taken just a week before trial, cen-
tered around verifying that the appliance was a fan, and whether there
  2
   Fed. R. Civ. P. 37(c)(1) provides that information not disclosed pursu-
ant to Rule 26 may not be used as evidence at trial "unless such failure
is harmless . . . ."
6             GOLDEN NUGGET v. CHESAPEAKE BAY FISHING
was evidence of a thermal cutout. Perhaps most telling, during the
deposition of West taken two weeks before trial, counsel for Chesa-
peake Bay questioned him extensively about the existence of a ther-
mal cutout. West testified that "every fan I’ve looked at has a thermal
cutout in it." When asked why Dr. Martin found no thermal cutout,
West responded, "They didn’t look good enough [sic] or it’s burned
out . . . ." West Dep. at 61. Thus, although Chesapeake Bay was sur-
prised when West testified that he found evidence of a thermal cutout,
it was clearly on notice of his position that one existed.

   With respect to the second factor, Chesapeake Bay argues that it
lacked the ability to cure the surprise because it had "no rebuttal or
response." Br. at 16. To the contrary, we find Chesapeake Bay had
not only the ability to cure any surprise, but also the opportunity.
Chesapeake Bay had expert testimony available to it opining that
there was no physical evidence of a thermal cutout. At trial, GNI
introduced a deposition summary of the findings of joint forensic
expert Martin, who analyzed the remains of the fan.3 The summary
included the fact that Dr. Martin "did not find any signs of a thermal
cutout, but acknowledged that does not mean that the fan did not have
a thermal cutout." Since Dr. Martin was a joint expert, Chesapeake
Bay also had access to his opinion that "[t]his device did not have a
thermal cutout" and that "[g]enerally [a thermal cutout] will survive
a fire." Martin Dep. at 134-35. Chesapeake Bay made no effort to
have this testimony admitted. At the conclusion of the deposition
summary presented by GNI, the district court specifically asked Ches-
apeake Bay if it had any cross summary. J.A. 264. Chesapeake Bay
declined the opportunity.

   The conclusion that Chesapeake Bay had the ability to cure the sur-
prise but failed to capitalize on opportunities to do so is reinforced by
three other instances during trial. Chesapeake Bay’s electrical expert,
Harris, had testified during trial that "[t]here is nothing that indicates
that [the fan] ever had a thermal cutout." J.A. 324. Nevertheless,
when GNI recalled West to testify about the existence of the thermal
cutout in rebuttal, Chesapeake Bay declined the opportunity to cross-
examine West. Further, after GNI rested its case, the court asked
    3
  Although Dr. Martin did not testify at trial, GNI offered a deposition
summary of his testimony.
              GOLDEN NUGGET v. CHESAPEAKE BAY FISHING                    7
Chesapeake Bay, "Any surrebuttal?" J.A. 340. Chesapeake Bay also
declined this opportunity. Finally, immediately after this, the court
released the jury for the day but kept the attorneys in order to hear
motions regarding jury instructions. Chesapeake Bay did not ask to
be heard on the issue of surprise, and at no time asked for a continu-
ance or extended recess in order to afford it the opportunity to cure
the surprise.

   As to the third factor, the district court’s willingness to hear further
evidence from Chesapeake Bay is indicative that curative testimony
would not have disrupted the trial. To the contrary, the district court,
acting sua sponte, offered Chesapeake Bay the opportunity to intro-
duce a cross summary of Dr. Martin’s deposition, and offered Chesa-
peake Bay the opportunity for surrebuttal following West’s testimony.

   With respect to the fourth factor, the existence of a thermal cutout
in the fan was important to Chesapeake Bay’s theory of causation for
the reasons described above. The existence of a cutout weakened its
claim that heat build up caused the fire.

   Finally, we find the excuse offered by GNI for its failure to dis-
close to be supported by the facts in this case. GNI contends that it
believed the fan remains were of no further importance after its first
examination, and "simply neglected to retrieve the fan from Martin
until the week before trial." Br. at 16. This explanation is supported
by the transcript of the Martin deposition, taken one week before trial.
Counsel for GNI told Dr. Martin, "I’m going to give you an address
and ask you to Fed-Ex [the fan remains] down to me so that we can
have it for use at trial next week." Martin Dep. at 16.

   Confirmation of the existence of a thermal cutout surprised Chesa-
peake Bay at trial, a result Rule 26 is designed to avoid. Although we
do not find that GNI acted in bad faith, that does not excuse its failure
to notify Chesapeake Bay immediately upon its discovery of what it
believed to be the remains of the thermal cutout. Further, our consid-
eration of the fourth factor weighs in favor of Chesapeake Bay’s
claim; the evidence in question was certainly important to its theory
of causation.

   On the other hand, Chesapeake Bay was aware of Mr. West’s con-
tention that such a cutout existed, and the fan was in the possession
8            GOLDEN NUGGET v. CHESAPEAKE BAY FISHING
of Dr. Martin until the week before trial. More significantly, however,
Chesapeake Bay failed to avail itself of any of the opportunities that
existed to cure the effect of the surprise. The district court offered
Chesapeake Bay an opportunity for surrebuttal. Chesapeake Bay
declined, even though its own expert was available to testify to the
contrary. Dr. Martin, who had the fan in his possession until the week
before trial, opined that such a cutout did not exist, and his deposition
containing that testimony had been entered into evidence. Chesapeake
Bay did not request a recess or a continuance to seek his testimony.
It made no attempt to mitigate the effect of the surprise. Weighing
these factors, we conclude that admitting the undisclosed expert testi-
mony concerning the evidence of a thermal cutout on the fan consti-
tuted harmless error.

                                   B.

  Chesapeake Bay’s second issue on appeal is whether the district
court erred when it allowed West to testify that excessive voltage
caused the fire. Chesapeake Bay alleges that this theory of causation
was not disclosed in West’s Expert Report and must therefore be
excluded pursuant to Rules 26(a)(2)(B) and 37(c)(1).

   On October 25, 2002, GNI delivered West’s Expert Report to
Chesapeake Bay. This Report consisted of (1) his Investigative
Report, (2) standard shipyard regulations and information, (3)
National Electrical Code Requirements for Commercial Wiring, and
(4) a letter from West to GNI’s counsel, responding to the report of
Chesapeake Bay’s electrical expert Harris. On January 3, 2003, Ches-
apeake Bay filed a motion in limine, seeking to exclude West’s opin-
ions because Chesapeake Bay contended that West was unqualified
as an expert, and that he failed to disclose his opinions in his Expert
Report. The district court granted in part and denied in part this
motion. The court held that West’s expert testimony would be limited
to what was disclosed in his Expert Report, but Chesapeake Bay’s
motion to exclude West’s testimony was denied as untimely.

   Chesapeake Bay contends that GNI originally attributed the fire
solely to a voltage spike created by the absence of a ground in con-
nection with the welding work. Therefore, Chesapeake Bay argues,
the theory that voltage spiking, unrelated to the existence or absence
              GOLDEN NUGGET v. CHESAPEAKE BAY FISHING                   9
of a ground during the welding work, caused the fan to burn up and
ignite the fire was undisclosed and therefore inadmissible.

    We agree with the district court’s finding that West’s report did
provide notice that voltage spiking would be an issue at trial, although
it could have been more clearly delineated.4 For instance, in his
Report, West stated, "[T]he ballast did receive a voltage spike . . . [the
blown ballast] was not the starting point of the fire but was a good
indication of voltage spiking." He wrote that "voltage was circulating
through the ships [sic] hull with a floating return path, making it
unstable . . . . The change in ARC’s by the welder provided voltage
spikes throughout ships [sic] electrical circuits and approximately 1
hour later the fire was found." He further stated, "The spike that
caused the heater/appliance to create a spark was a high voltage spike.
. . . The culprit was voltage not current. . . . Current causes breakers
to trip, excessive voltage just burns equipment out due to dielectric
breakdown." In West’s letter in response to Harris’ Report, which was
included in West’s Expert Report, he stated, "I disagree with the find-
ings and feel [voltage spiking] is possible cause of damage [sic]."
West further stated, "[That a voltage spike should not have any effect
on equipment downstream] is unknown," and "[e]very ballast I looked
at was blown which tells me that excessive voltage was cause [sic]
of any electrical/electronics equipment defects." In response to Har-
ris’ contention that excessive current caused the fan to ignite, West
stated, "If rotor was stopped [sic], excessive current would be drawn.
Breakers would have tripped. The external wires to this appliance
showed no signs of wire melting inside out. But we know we had
excessive voltage by testimony and evidence of blown ballast." J.A.
650-78.

  We agree with the district court’s conclusion that while GNI’s the-
ory of causation could have been articulated more definitively, it was
  4
   Additionally, in a letter to Chesapeake Bay dated September 21, 2001,
GNI summarized its initial position: "The cumulative effect of these
inexcusable errors on Ampro’s part were that the GOLDEN NUGGET
experienced a series of high voltage spikes (as indicated by an internally
blown light ballast on board), particularly once Ampro began welding on
the vessel, that led directly to the fire that gutted her." J.A. 545.
10            GOLDEN NUGGET v. CHESAPEAKE BAY FISHING
generally disclosed in West’s Expert Report. Thus, the district court
did not abuse its discretion in allowing the testimony.

                                    C.

   Our conclusion as to the admissibility of GNI’s causation testi-
mony controls our analysis of Chesapeake Bay’s contention that it
was entitled to a directed verdict or a new trial. Because we find
West’s opinion to be admissible, we conclude that there was suffi-
cient evidence for the jury to find Chesapeake Bay liable. Further, the
district court did not abuse its discretion in denying the motion for a
new trial in the interest of justice. See Atlas Food Sys. & Serv., Inc.
v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 594 (4th Cir. 1996) ("[I]t
is the duty of the [district court] to set aside the verdict and grant a
new trial, if . . . [1] the verdict is against the clear weight of the evi-
dence, or [2] is based on evidence which is false, or [3] will result in
a miscarriage of justice, even though there may be substantial evi-
dence which would prevent the direction of a verdict.").

                                   III.

  For the foregoing reasons, the judgment in the district court in Gol-
den Nugget, Inc. v. Chesapeake Bay Fishing Company, L.C., No. 03-
1339, is

                                                             AFFIRMED.

HAMILTON, Senior Circuit Judge, dissenting:

   Because Chesapeake Bay did not receive anything close to a fair
trial in this case, I respectfully dissent. I agree with the majority that
the district court erred in holding that West’s expert rebuttal testi-
mony, to the effect that he found physical evidence of a thermal cut-
out on the remains of the fan, was excepted from the dictates of Fed-
eral Rule of Civil Procedure (Rule) 26(a)(2)(B) and (e)(1). However,
I disagree with the majority’s holding that the admission of such testi-
mony constituted harmless error, and thus, was not subject to exclu-
sion pursuant to Rule 37(c)(1). I also disagree with the majority’s
holding that GNI’s two-step theory of causation, presented at trial,
             GOLDEN NUGGET v. CHESAPEAKE BAY FISHING                 11
was sufficiently disclosed in West’s expert report, such that the dis-
trict court did not abuse its discretion in allowing West to testify to
the theory at trial. For these reasons, I would vacate the judgment and
remand for a new trial with the condition that, prior to trial, Chesa-
peake Bay be allowed to conduct further discovery regarding the evi-
dence challenged in this appeal, in accordance with Rule 26.

                                   I.

   As part of its rebuttal case, GNI recalled West to give expert opin-
ion testimony on the question of whether the physical remains of the
fan contained evidence of a thermal cut-out. In relevant part, the tran-
script reveals the following exchange between counsel for GNI and
West during West’s direct testimony in rebuttal:

    BY MR. ABEL:

    Q Sir, you have had occasion to take a close look at the
    remains of the fan that is exhibit 63, right?

    A Yes, sir.

    Q Sir, is there anything there that leads you to believe that
    there was a thermal cut-out on that fan?

    A Yes, sir.

    Q Can you tell us what that is?

                                 ***

    [A] Crimp right here on this wire. That is consistent with
    how a thermal protector would be installed.

                                 ***

    Q Is there anything else on there on any other wire also
    consistent with having been a thermal cut-out ought [sic]
    there?
12           GOLDEN NUGGET v. CHESAPEAKE BAY FISHING
                                 ***

     [A] You can see where a switch was installed. This is a
     switch. There is some other wires somewhere. But this part
     of it is one side of a thermal cut-off.

                                 ***

     Q Have you seen that sort of thing before?

     A Yes, sir.

(J.A. 338-40).

   Because expert testimony has the potential to "be both powerful
and quite misleading," Daubert v. Merrell Dow Pharms., Inc., 509
U.S. 579, 595 (1993) (internal quotation marks omitted), basic due
process demands that expert testimony be subject to "[v]igorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof." Id. at 596 (internal quotation
marks omitted). Because GNI violated Rule 26(a)(2)(B) and (e)(1),
Chesapeake Bay was prevented from subjecting the above quoted
expert testimony to vigorous cross examination and prevented from
presenting contrary evidence at trial.

   With all due respect, the majority’s assertions to the contrary do
not withstand scrutiny. What the majority characterizes as Chesa-
peake Bay’s declined opportunities to cure the effect of its surprise
amount to nothing. Such alleged declined opportunities include: (1)
Chesapeake Bay’s opportunity to submit Dr. Richard Martin’s (Dr.
Martin) deposition testimony that his pretrial examination of the fan
debris did not reveal a thermal cut-out or any other switching ele-
ments or something as a separate thermal cut-out; (2) Chesapeake
Bay’s opportunity to recall its own expert William Harris (Harris) in
surrebuttal to reiterate his previous testimony that there is nothing in
the fan remains to indicate that the fan ever had a thermal cut-out; and
(3) Chesapeake Bay’s opportunity to sua sponte request a continuance
or extended recess in order to afford it the opportunity to cure its sur-
prise through further discovery.
              GOLDEN NUGGET v. CHESAPEAKE BAY FISHING                      13
   With respect to the first two of these three alleged declined oppor-
tunities, the testimony of Dr. Martin and Harris is far too general to
rebut West’s detailed and specific trial testimony, while apparently
holding the burnt fan in his hands, that what led him to believe the
fan had a thermal cut-out was the "crimp right here on this wire. That
is consistent with how a thermal protector would be installed." (J.A.
339). Moreover, without being armed with an expert witness opinion
to rebut West’s very specific and detailed testimony regarding the
physical evidence of a thermal cut-out, Chesapeake Bay lacked the
ability to effectively cross examine West on this point. Indeed, "‘the
ability to simply cross-examine an expert concerning a new opinion
at trial is not the ability to cure, . . . [as] the rules of expert disclosure
are designed to allow an opponent to examine an expert opinion for
flaws and to develop counter-testimony through that party’s own
experts.’" Southern States Rack and Fixture, Inc. v. Sherwin-Williams
Co., 318 F.3d 592, 598 (4th Cir. 2003).

   Moreover, to put the burden on Chesapeake Bay, at the very end
of a jury trial, to sua sponte request a continuance or extended recess
in order to conduct further discovery and develop a credible response
to expert testimony submitted in blatant violation of Rule 26(a)(2)(B)
is unjustifiable. By placing such a burden on Chesapeake Bay, the
majority sends the clear message that compliance with Rule
26(a)(2)(B) and (e)(1) is merely discretionary; indeed, only a nice
idea, with no real consequences from noncompliance.

   Considering (1) Chesapeake Bay’s lack of ability and opportunity
to cure the prejudice of surprise that even the majority acknowledges
Chesapeake Bay suffered when West testified during rebuttal regard-
ing the physical evidence of the existence of a thermal cut-out on the
fan, (2) the undisputed importance of such testimony in that it com-
pletely undercut Chesapeake Bay’s sole theory of causation, and (3)
the pitiful excuse offered by GNI for failing to comply with Rule
26(a)(2)(B) and (e)(1), the conclusion is inescapable that the district
court abused its discretion in overruling Chesapeake Bay’s objection
to West’s rebuttal testimony regarding physical evidence of a thermal
cut-out on the fan. Accordingly, at a minimum, I would vacate the
judgment and remand for a new trial, with the condition that, Chesa-
peake Bay be allowed to conduct further discovery on the matter prior
to such new trial.
14           GOLDEN NUGGET v. CHESAPEAKE BAY FISHING
                                   II.

   On appeal, Chesapeake Bay also challenges the district court’s
admission of West’s direct testimony setting forth his two-step theory
of causation. On direct examination, West was asked if he had a pro-
fessional opinion as to when, in the time line, the fan had its motor
burn up? West answered: "On initial hook up of the shore power."
(J.A. 282). West was then asked, if he could "tell the jury why it is
that if the motor fan burned up when the shore power was initially
hooked up, the fire didn’t occur until five days later?" Id. West
responded:

        Because when they initially had it operating improperly
     when they initially did the connection, the wrong connec-
     tion, the high voltage, they burned up the fan. They opened
     it up. So the captain wasn’t going to see anything running,
     because the fan wasn’t working, because it was open. But
     when they hooked up the ground to it and they started arcing
     on it, they gave potential there, difference of potential for
     the fan to start receiving a signal and heating up again.

(J.A. 282-83). In his next answer, West explained that the arcing
resulted from voltage spikes caused by the welding work on the ship.

   Chesapeake Bay argued below, and continues to argue on appeal,
that West’s two-step theory of causation (i.e., (step one) initial burn-
up of the fan’s motor, which made possible (step two) the subsequent
fire originating from the fan five days later following an hour after the
welding work) should have been excluded pursuant to Rule 37(c)(1)
and the district court’s January 8, 2003 order granting Chesapeake
Bay’s motion in limine to the extent that such motion sought to limit
West’s expert testimony at trial "to what was disclosed in his expert
report of October 25, 2002 . . . ." (J.A. 54). According to Chesapeake
Bay, West’s two-step theory of causation was not set forth in his
expert report of October 25, 2002. Chesapeake asserts that West’s
report can only reasonably be read to opine that the fan caught fire
solely because a "change in ARC’s by the welder" created voltage
spikes in the fan. (J.A. 651).

  The majority glosses over the crux of Chesapeake Bay’s argument
by merely concluding that it agrees "with the district court’s finding
             GOLDEN NUGGET v. CHESAPEAKE BAY FISHING                 15
that West’s report did provide notice that voltage spiking would be an
issue at trial, although it could have been more clearly delineated."
Ante at 9. Notice that voltage spiking would be an issue at trial is
hardly the point. No one disputes that West’s report identified voltage
spiking as a critical part of his theory of causation. Significantly,
however, the report, when read in a straightforward manner, opines
that the fan was ignited by a voltage spike caused by a "change in
ARC’s by the welder." (J.A. 651) ("The change in ARC’s by the
welder provided voltage spikes throughout [the] ship[’]s electrical cir-
cuits and approximately 1 hour later the fire was found."). The critical
point the majority fails to address is whether West’s expert report dis-
closed his opinion, admitted as evidence at trial, that the initial hook
up of shore power and the ship’s exposure to the high leg instantly
caused damage to the fan’s motor through voltage spikes, such that
the subsequent voltage spikes from the welding work were able to
cause the fan to ignite.

   The answer to this question is clearly no. Indeed, when West was
asked during his deposition, taken just two weeks before trial,
whether, anywhere in his report, he "explicitly sa[id]" that he thought
"the coils of the fan were burned out by a voltage spike when the high
leg was hooked up . . . ?", West answered, "Nowhere in this report,
no." (J.A. 615). West admitted during cross examination at trial that
this was indeed his deposition testimony. (J.A. 294). In a case where
the expert witness himself admits that his own report does not explic-
itly express a critical part of the very causation theory that he
espouses at trial, that Chesapeake Bay cannot reasonably be expected
to have leapt such an informational chasm is axiomatic. Accordingly,
I would hold that the district court erred in overruling Chesapeake
Bay’s timely objection to the admission of West’s two-step theory of
causation during his direct testimony, and would remand for a new
trial with the condition that Chesapeake Bay, at a minimum, be
allowed to conduct further discovery on the matter prior to such new
trial.

                                  III.

  In conclusion, I am constrained to express that the majority’s affir-
mance in this case not only creates unfair consequences for Chesa-
peake Bay, it significantly weakens, if not obliterates, our civil
16           GOLDEN NUGGET v. CHESAPEAKE BAY FISHING
discovery process and the intended bite of Rule 37(c)(1)’s exclusion-
ary rule. GNI blatantly did not play by the discovery rules with regard
to the expert testimony of West, and yet, suffered no adverse conse-
quences. Indeed, GNI was able to use the effects of its own discovery
violations to its very own significant tactical advantage. This court
should not be in the business of readily countenancing such behavior.
Accordingly, with the conditions which I have already set forth, I
would vacate the judgment and remand for a new trial.
