                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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


                                      2
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


                                         6
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


                                            7
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




                                        8
“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
