                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  August 5, 2008
                                                                 Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                     Clerk of Court



    JERRY NEWMAN; JUDY NEWMAN,
    husband and wife,

               Plaintiffs-Appellants,

    v.                                                  No. 07-6060
                                                 (D.C. No. 05-CV-0541-HE)
    STATE FARM FIRE AND                                 (W.D. Okla.)
    CASUALTY COMPANY,
    a foreign company,

               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         A house owned by Jerry and Judy Newman was destroyed by fire. While

their fire-loss claim was pending with their insurer, State Farm Fire and Casualty

Co., they filed this diversity action asserting that State Farm had breached the

insurance contract and had handled their claim in bad faith. Thereafter, State


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Farm denied the claim based on the Newmans’ alleged motive and opportunity to

set fire to the house and based on their alleged fraud and false swearing during

the claim process. The district court granted State Farm’s motion for partial

summary judgment on the bad faith claim. A jury decided for State Farm on the

breach of contract claim. The Newmans appeal, arguing that (1) the jury

instructions were confusing and contrary to Oklahoma law; (2) the district court

improperly denied their motions to exclude testimony from State Farm’s experts;

(3) the district court improperly refused to allow them to present a rebuttal expert;

and (4) the district court erred in granting State Farm’s motion for partial

summary judgment on the bad faith claim. We affirm.

                                            I.

      Before considering the facts and issues in this appeal, we address a

preliminary matter concerning State Farm’s improper citation in the fact section

of its brief, and throughout other parts of its brief to a lesser extent, to transcript

and deposition pages not included in the appendices. 1 State Farm cites to various

pages of the trial transcript and a deposition. More than seventy-five percent of

the pages State Farm cites in its fact section are not included in the appendices.



1
       We granted State Farm’s motion to supplement the record with the
deposition, but specifically provided that it be included in State Farm’s appendix
or in the Newmans’ appendix, if the parties agreed. Although the Newmans
provided three pages of the deposition in their appendix, State Farm failed to
provide any additional pages.

                                           -2-
Although the Newmans provided only selected pages of the trial transcript and the

deposition in their appendix, State Farm’s supplemental appendix failed to

provide the pages not included in the Newmans’ appendix.

      Our rules state that citation references should be to the appendices, and not

to the transcripts. See 10th Cir. R. 28.1(A). Further, transcript excerpts must be

included in an appendix when referred to in a brief. See id. at 10.3(D)(4). State

Farm had the responsibility to file a supplemental appendix including any

necessary items omitted from the Newmans’ appendix. See id. at 30.2(A)(1);

see also Yarrington v. Davies, 992 F.2d 1077, 1080-81 (10th Cir. 1993)

(recognizing counsel’s responsibility to provide sufficient record excerpts for

consideration of issues on appeal). We will not remedy State Farm’s failure to

provide an adequate record. See 10th Cir. R. 10.3(B); id. at 30.1(A)(3).

      Because State Farm failed to comply with our rules, we, for the most part,

will not consider the fact section of State Farm’s brief. Nor will we consider

assertions made by State Farm in other parts of its brief that are supported by

citation to transcript pages not included in the appendices. Instead, we will

decide this appeal based on the portions of the record in the appendices. We

remind counsel of the importance of following court rules to aid our consideration

of appeals, as these rules “are not empty gestures.” Travelers Indem. Co. v.

Accurate Autobody, Inc., 340 F.3d 1118, 1121 (10th Cir. 2003).




                                         -3-
                                          II.

      On March 19, 2004, the Newman home burned to the ground. No one was

home at the time, as Ms. Newman had moved out a year before due to marital

difficulties and Mr. Newman was camping at a nearby lake with their son.

      State Farm sent B.W. Scott, Jr., a fire cause and origin expert, to

investigate. He reported that the fire started in the kitchen area. He noted

excessive heat damage and higher than normal temperatures in the stove area,

including a partial melting of two cast iron skillets nesting on the stove and a

burner imprint on the bottom of the lower skillet and melted and faulty wiring. In

Mr. Scott’s experience, “when evidence of higher temperatures are observed an

additional accelerant or fuel was present in the fire area.” Aplt. App., Vol. 2 at

308. Because he, like the local fire department, was unable to determine the

cause of the fire, he advised State Farm to retain an electrical engineer to inspect

the electrical appliances and electrical service.

      State Farm’s claims representative received authorization to settle the

Newmans’ claim. But before he did so, State Farm received information that the

Newmans may have hired someone to set their home on fire. State Farm followed

up on this information, while continuing to give the Newmans money for living

expenses.

      Stephanie Knight, a former State Farm employee, told State Farm that she

had heard from Ava Shaffer and Pam Snyder, two friends of Ms. Newman, that

                                          -4-
the Newmans had hired someone to burn down their house, that the arsonist was

demanding money, and that the fire had something to do with the stove. These

two women confirmed to State Farm that Ms. Newman had hired Rudy Smith to

burn the house. Ms. Shaffer also stated that Ms. Newman had first tried to hire a

friend of Ms. Shaffer’s to burn down the house, but he refused. Ms. Snyder also

stated that Ms. Newman tried to borrow money from her husband. During the

investigation, State Farm learned that Ms. Newman had unsuccessfully tried to

borrow $6000 or $7000 from Rob McDonald shortly after the fire.

      In her statements to State Farm, however, Ms. Newman denied hiring

anyone to burn the house. She admitted calling Mr. Smith before the fire to ask

him to help with remodeling the kitchen and after the fire to help with debris

removal, but she stated that she never made the connection after the fire that she

was calling the same person she called before the fire. She also stated she had

borrowed money from a bank to buy a car for her daughter, but denied trying to

borrow money from Mr. McDonald.

      The Newmans filed a complaint in district court alleging State Farm

breached the insurance contract and acted in bad faith. Thereafter, based on its

investigation, State Farm denied the Newmans’ claim based on their motive and

opportunity to start the fire and their fraud and false swearing. State Farm moved

for summary judgment on the bad faith claim, and the district court granted the

motion.

                                         -5-
        State Farm hired Glenn Hardin, an electrical engineer, to evaluate the

Newmans’ stove and the two cast iron skillets found nesting on the stove.

Mr. Hardin concluded that the left rear burner was on at the time of the fire as

evidenced by the branding of the burner element onto the bottom of the lower

skillet. He conducted two tests to support his conclusion. Additionally, he noted

extremely high heat conditions were present during the fire.

        Before trial, Mr. Scott changed his opinion about the cause of the fire. He

testified at his deposition that he believed the fire probably was incendiary in

origin. His conclusion was based on the excessive heat, the melted cast iron

skillets, and the investigation by Mr. Hardin. Also, Mr. Scott testified that, in his

opinion, someone intentionally set the fire using an accelerant in or near the

skillets on the stove. But he did not know the type of accelerant or how it was

used.

        Based on Mr. Scott’s deposition testimony, the Newmans moved (out of

time) to designate William R. Coleman, a metallurgist, as an expert rebuttal

witness. Also, they moved to exclude the testimony of Mr. Scott and Mr. Hardin.

After holding a hearing, the district court decided that the two experts could

testify, but Mr. Coleman could not be called as a rebuttal witness.

        The case proceeded to trial on the breach of contract claim. State Farm

asserted affirmative defenses of intentional acts and concealment or fraud by the

Newmans. State Farm’s experts’ testimony indicated that the fire had an

                                          -6-
incendiary origin, whereas the Newmans’ expert, James Pilkington, testified to

the contrary. Mr. Pilkington agreed that the fire started in the kitchen, but,

contrary to Mr. Scott, he concluded there was not excessively high heat. Nor did

he find evidence of an accelerant. Regardless of whether the fire was incendiary

or accidental, he did not think the skillets were significant since they were

deformed and not melted and an imprint could have occurred on the skillet

regardless of whether the burner was on at the time of the fire. Thus,

Mr. Pilkington concluded there was no evidence of arson. After considering all

of the evidence presented, the jury found that State Farm did not breach its

insurance contract with the Newmans. The Newmans appealed.

                                          III.

A. Jury Instructions

      The Newmans argue that the jury instructions were confusing and contrary

to existing law for four different reasons: (1) the district court did not instruct the

jury that State Farm must prove each of the necessary elements of its arson

defense; (2) the district court incorrectly instructed the jury that State Farm’s

burden for its concealment or fraud defense was a preponderance of the evidence;

(3) the district court failed to set forth the element of detrimental reliance as a

requirement for State Farm’s concealment or fraud defense; and (4) the district

court erred in defining materiality.




                                           -7-
      Before addressing each of these issues, we note, like State Farm, the

Newmans have failed to comply with Tenth Circuit rules. An appellant must “cite

the precise reference in the record where a required objection was made and ruled

on, if the appeal is based on . . . the giving of or refusal to give a particular jury

instruction.” 10th Cir. R. 28.2(C)(3)(b). Also, an appellant’s appendix must

include the transcripts “necessary to give the court a complete and accurate record

of the proceedings related to the issues on appeal.” Id. at 10.1(A)(1). Where an

appellants’ “opening brief fails to . . . cite to the point in the record where [their]

objection can be found and [their] appendix does not include the transcript of the

jury instruction conference[,] . . . these infractions provide sufficient grounds to

deny [their] jury instruction issue on appeal.” Allan v. Springville City, 388 F.3d

1331, 1334 (10th Cir. 2004).

      The Newmans cite to their written objections and provide one transcript

page noting their objection to the district court’s failure to instruct that fraud must

be proven by clear and convincing evidence, but the appendices do not include

any other relevant transcript pages of the jury instructions conference. Despite

the deficiency, we, however, will proceed to consider the instruction issues raised

by the Newmans.

             To determine whether the jury was adequately instructed on
      the applicable law, we review the instructions in their entirety
      de novo to determine whether the jury was misled in any way. The
      instructions as a whole need not be flawless, but we must be satisfied


                                           -8-
      that, upon hearing the instructions, the jury understood the issues to
      be resolved and its duty to resolve them.

Townsend v. Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1237 (10th Cir. 2002)

(quotation omitted). “In a diversity case such as this the substantive correctness

of a jury instruction is a matter of state law[.]” Thompson v. State Farm Fire &

Cas. Co., 34 F.3d 932, 936-37 (10th Cir. 1994).

      First, the Newmans argue that contrary to Oklahoma law the district court

did not instruct the jury that State Farm must prove each of the necessary

elements of its arson defense. According to the Newmans, the jury instruction

concerning State Farm’s affirmative defense of an intentional act did not require

it to prove every essential fact, including that the fire had an incendiary origin,

and instead the instruction was merely discretionary. They point to the following

language in the instruction:

      In this regard, you may consider, among other things, whether the
      fire was of an incendiary rather than accidental origin, whether a
      motive or intent existed on the part of the plaintiffs, and whether the
      opportunity or capability existed on the part of the plaintiffs or
      someone at their direction to start the fire.

Aplt. App., Vol. 1 at 238.

      Contrary to the Newmans’ argument, we conclude that the instructions as a

whole, although not phrased as clearly as they might have been, correctly guided

the jury in accordance with Oklahoma law. In Oklahoma, an insurer who asserts

an affirmative defense that a loss resulted from a fire of incendiary origin, bears


                                          -9-
the burden of producing evidence to support the defense and is required to prove

every essential fact by a preponderance of the evidence. Pac. Ins. Co. of N.Y. v.

Frank, 452 P.2d 794, 796 (Okla. 1969). In a case where evidence of arson is

circumstantial, proof that the fire had an incendiary origin along with proof of

motive, intent, and opportunity by the insured is sufficient to submit the arson

issue to the jury. See Manis v. Hartford Fire Ins. Co., 681 P.2d 760, 762 (Okla.

1984).

         The instruction at issue sufficiently complied with Oklahoma law. It first

set forth the policy provision concerning intentional acts, which stated that “[i]f

you or any person insured under this policy causes or procures a loss to property

covered under this policy for the purpose of obtaining insurance benefits then this

policy is void and we will not pay you or any other insured for the loss.” Aplt.

App., Vol. 1 at 238. The instruction then stated that because State Farm “asserted

a violation of the ‘Intentional Acts’ provision of the insurance policy as an

affirmative defense to the . . . breach of contract claim,” it “must prove” each of

the three essential elements of its defense “by the greater weight of the evidence”:

(1) “That the [Newmans’] house was intentionally destroyed by fire”; (2) “That

one or both of the [Newmans] caused or procured the setting of the fire”; and

(3) “That one or both of the [Newmans] caused or procured the setting of the fire

for the purpose of obtaining insurance benefits.” Id. The instruction proceeded

to state that “[t]his defense may be proved by circumstantial evidence.” Id. It is

                                          -10-
at this point, to clarify proof by circumstantial evidence, that the language the

Newmans refer to appears in the instruction.

      The instruction, contrary to the Newmans’ argument, did require State Farm

to prove the essential elements of its defense. The issue at trial was whether the

Newmans engaged in the intentional act of hiring someone to burn their house.

Looking at the instructions as a whole, the jury would not have been mislead or

confused about State Farm’s burden to prove the elements of this affirmative

defense. The Newmans cite no Oklahoma case law, and we found none, requiring

that State Farm prove motive, intent, and opportunity specifically as elements of

arson. In any event, the three are implicitly included in the three elements the

instruction required State Farm to prove.

      The Newmans further argue that State Farm failed to prove the fire was

incendiary because there was no reliable scientific or expert evidence making

such a showing. Instead, they contend State Farm had only stories and rumors of

arson and unreliable expert testimony asserting the fire may have been caused by

arson. The jury, however, concluded that there was sufficient evidence, rejecting

the opinion of the Newmans’ expert that the fire was not incendiary. Upon our

review of the portions of the trial record included in the Newmans’ appendix, we

conclude the evidence was sufficient to support the jury’s finding.

      Second, the Newmans argue that the district court erred in instructing the

jury that State Farm’s burden for its concealment-or-fraud defense was a

                                         -11-
preponderance of the evidence rather than clear and convincing evidence. In

Oklahoma, however, when an insurer asserts an affirmative defense of fraud, the

insurer must prove that defense by a preponderance of the evidence. See Transp.

Ins. Co. v. Hamilton, 316 F.2d 294, 296 (10th Cir. 1963); see also Pac. Ins. Co.

of N.Y., 452 P.2d at 796 (stating party asserting affirmative defense of nonliability

because of fire of incendiary origin must prove essential facts by preponderance

of evidence); Pac. Mut. Life Ins. Co. of Cal. v. Tetirick, 68 P.2d 828, 831, 833

(Okla. 1937) (stating that instruction requiring proof of fraud by preponderance of

evidence was proper); Nat’l Aid Life Ass’n v. Abbott, 62 P.2d 982, 985 (Okla.

1936) (deciding that when insurance company makes allegations of fraud, it must

prove fraud by preponderance of evidence). We therefore conclude the given

instruction was not contrary to Oklahoma law.

      Third, the Newmans argue that the district court erred in failing to set forth

the element of detrimental reliance as a requirement for State Farm’s

concealment-or-fraud defense. They maintain State Farm should have been

required to prove that the Newmans’ representations were material and that it

detrimentally relied on those mispresentations. As State Farm contends, the

policy language concerning concealment or fraud does not require detrimental

reliance: “[t]his policy is void as to you and any other insured, if you or any

other insured under this policy has intentionally concealed or misrepresented any

material fact or circumstance relating to this insurance, whether before or after a

                                         -12-
loss.” Aplt. App., Vol. 1 at 239. This policy provision is based on Okla Stat.

tit. 36, § 4803, which also does not require detrimental reliance. We therefore

conclude this argument lacks merit.

      Lastly, the Newmans contend that the district court erred in not properly

defining materiality, since it did not require that the alleged concealment or fraud

be material in relation to State Farm’s arson defense. They maintain that the jury

instructions permitted the jury to believe that any false statement made by the

Newmans justified State Farm’s denial of the claim, when any false swearing was

only material if it related to arson, since State Farm denied the insurance claim

based on arson and the alleged false swearing designed to cover up the arson.

Thus, they contend the court improperly severed the affirmative defenses of arson

and fraudulent representation when actually they were intertwined.

      The instruction defining a material fact stated:

             A fact is material if a reasonably careful person under the
      circumstances would attach importance to it in determining his or her
      course of action. A fact may also be material even though a
      reasonably careful person might not regard it as important, if the
      person stating it or concealing it knows the person with whom he or
      she is dealing will very likely regard it as important in determining
      his or her course of action.

Aplt. App., Vol. 1 at 239. We conclude that this instruction, considered within

the context of the entire trial and the instructions in their entirety, adequately

defined materiality and would not have confused the jury.




                                          -13-
B. State Farm’s Experts

      The Newmans argue that the district court abused its discretion in

overruling their motion pursuant to Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579, 589 (1993), to exclude the testimony of State Farm’s expert

witnesses, Mr. Scott and Mr. Hardin, as irrelevant and professionally and

scientifically unreliable. We review the district court’s decision to admit the

expert testimony for an abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S.

136, 138-39, 146 (1997). We will reverse only if we have “a definite and firm

conviction that the [district] court has made a clear error of judgment or exceeded

the bounds of permissible choice in the circumstances.” Ralston v. Smith &

Nephew Richards, Inc., 275 F.3d 965, 968-69 (10th Cir. 2001) (quotation

omitted).

             If scientific, technical, or other specialized knowledge will
      assist the trier of fact to understand the evidence or to determine a
      fact in issue, a witness qualified as an expert by knowledge, skill,
      experience, training or education, may testify thereto in the form of
      an opinion or otherwise, if (1) the testimony is based on sufficient
      facts or data, (2) the testimony is the product of reliable principles
      and methods, and (3) the witness has applied the principles and
      methods reliably to the facts of the case.

Fed. R. Evid. 702. Under Daubert (and the Federal Rules of Evidence), expert

evidence must be both reliable and relevant. 509 U.S. at 589, 597; see Kumho

Tire Co. v. Carmichael, 526 U.S 137, 147 (1999). When assessing reliability,

courts consider “whether the reasoning or methodology underlying the testimony


                                        -14-
is scientifically valid and . . . that reasoning or methodology properly can be

applied to the facts in issue.” Daubert, 509 U.S. at 592-93.

      Neither Rule 702 nor Daubert “require a finding that an expert’s proffered

testimony reach absolute certainty with regard to the likely truth of a conclusion.”

Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1236 n.2 (10th Cir. 2004). “Instead,

the plaintiff must show that the method employed by the expert in reaching the

conclusion is scientifically sound and that the opinion is based on facts which

satisfy Rule 702’s reliability requirements.” Dodge v. Cotter Corp., 328 F.3d

1212, 1222 (10th Cir. 2003). “Accordingly, a trial court’s focus generally should

not be upon the precise conclusions reached by the expert, but on the

methodology employed in reaching those conclusions.” Bitler, 400 F.3d at 1233

(citing Daubert, 509 U.S. at 595). But “an expert’s conclusions are not immune

from scrutiny: ‘A court may conclude that there is simply too great an analytical

gap between the data and the opinion proffered.’” Dodge, 328 F.3d at 1222

(quoting Joiner, 522 U.S. at 146). “As long as an expert stays within the

reasonable confines of his subject area, our case law establishes a lack of

specialization does not affect the admissibility of the expert opinion, but only its

weight.” Ralston, 275 F.3d at 970 (brackets and quotations omitted).

      In assessing whether an expert’s testimony is relevant, courts “look at the

logical relationship between the evidence proffered and the material issue that

evidence is supposed to support to determine if it advances the purpose of aiding

                                         -15-
the trier of fact.” Bitler, 400 F.3d at 1234. “‘Relevant evidence’ is defined as

that which has ‘any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable

than it would be without the evidence.’” Daubert, 509 U.S. at 587 (quoting Fed.

R. Evid. 401).

      First, the Newmans contend the expert testimony was irrelevant because it

did not assist the jury in understanding the evidence or in determining any fact at

issue. See Fed. R. Evid. 702. According to the Newmans, State Farm relied on

the evidence concerning their motive and opportunity to start the fire and the

rumor of arson, not on the tests and opinions of the experts when it denied

insurance coverage. This maybe true, but we agree with the district court’s

conclusion that the expert evidence was relevant at trial. Both Mr. Scott’s and

Mr. Hardin’s testimony related to the incendiary nature of the fire, the issue

before the jury.

      Second, the Newmans contend that the expert testimony and evidence was

unreliable. They fault Mr. Hardin (1) for reaching a conclusion that the stove

burner was on and then conducting tests to support that conclusion; (2) for having

no expertise to conduct metallurgical tests; and (3) for conducting tests that were

not similar to the circumstances surrounding the house fire. Because Mr. Scott

based his opinion on the opinion of Mr. Hardin, the Newmans contend Mr. Scott’s

opinion was also unreliable. Recognizing it was a close question, the district

                                        -16-
court decided that State Farm “barely” made a sufficient showing of reliability

and that the issues concerning the experts’ opinions go to weight rather than to

admissibility. Aplt. App., Vol. 2 at 218. We agree.

       Mr. Hardin conducted two experiments to support his belief that the stove

burner was on at the time of the fire. In the first experiment, he placed a skillet

on an electric burner and left the burner on until it reached maximum temperature.

In his second experiment, he placed a skillet on a burner that was not turned on

and put the burner and skillet in a kiln until the kiln reached maximum

temperature. The experiments were conducted at a lesser temperature and for a

lesser amount of time than the fire, as there was no practical way to actually

recreate the fire.

       But as the Newmans point out, Mr. Hardin never placed a skillet on a

burner, turned the burner on, and then put the two in the kiln. Further, as the

Newmans contend, there was no significant difference in the results of the two

tests, because both ended up with a burner imprint on the bottom of the skillet,

just like the skillet in the fire, even though the branding on the skillet that had

been on the skillet in the kiln was less visible. Thus, they maintain the results of

the testing do not establish the burner was on at the time of the fire. Additionally,

the Newmans appropriately fault Mr. Hardin for using new skillets when

conducting his tests and for not nesting one skillet inside of another for the tests.

Lastly, they note he did not express an opinion as to the fire’s cause.

                                          -17-
      Despite these criticisms, we conclude that the district court did not abuse

its discretion in concluding that Mr. Hardin’s testimony was sufficiently reliable,

so that the jury should decide what weight to give to the evidence. Although

Mr. Hardin was not a metallurgist, he did consult with one. And it was

Mr. Hardin’s opinion that the fire was incendiary. The Newmans vigorously

cross-examined Mr. Hardin and presented their own expert witness disputing the

incendiary nature of the fire. See Daubert, 509 U.S. at 596 (“Vigorous

cross-examination, presentation of contrary evidence, and careful instruction on

the burden of proof are the traditional and appropriate means of attacking shaky

but admissible evidence.”). Additionally, the jury instructions advised the jury to

give the experts’ testimony the weight the jury believed to be proper.

      With respect to Mr. Scott, the Newmans contend his testimony that the fire

had an incendiary origin was unreliable because it was based on Mr. Hardin’s

unreliable investigation. Because we conclude that the district court did not

abuse its discretion in allowing Mr. Hardin’s testimony, we also conclude the

district court did not abuse its discretion in allowing Mr. Scott’s testimony. The

Newmans also fault Mr. Scott for claiming there were signs of excessive heat.

The Newmans provided an expert contradicting this testimony. Thus, it was for

the jury to decide which expert to believe.




                                        -18-
C. Denial of Newman’s Rebuttal Expert

      The Newmans argue that the district court improperly denied their motion

to present Mr. Coleman, a metallurgical engineer, as an expert rebuttal witness.

The Newmans admit that they did not name Mr. Coleman before the deadline for

naming expert witnesses. See Fed. R. Civ. P. 26(a)(2)(C). But they contend their

failure to meet the deadline was due to Mr. Scott’s changing his opinion after the

deadline from an undetermined cause for the fire to an incendiary cause and due

to his deeming the skillets to be material, even though he had previously deemed

them to be immaterial in his report. Since State Farm did not supplement

Mr. Scott’s report or inform the Newmans that he believed the fire was

incendiary, the Newmans contend that State Farm failed to comply with

Rule 26(e)’s requirement that the report be supplemented or corrected with

accurate information. Further, they contend that an untimely designation would

not have prejudiced State Farm, because it would have had ample time to prepare

for trial, including taking Mr. Coleman’s deposition.

      The district court denied the Newmans’ motion for leave to designate

Mr. Coleman, out of time, as an expert rebuttal witness. The court found that

Mr. Scott’s opinion concerning the melting of the skillets as an incendiary cause

for the fire was not materially different from the information disclosed in his

report.




                                        -19-
      We conclude the district court did not abuse its discretion when excluding

Mr. Coleman as an expert rebuttal witness. See Coastal Fuels of P.R., Inc. v.

Caribbean Petroleum Corp., 79 F.3d 182, 202 (1st Cir. 1996) (reviewing district

court’s exclusion of rebuttal expert witnesses for abuse of discretion). The court

set a deadline for experts to be identified, and the Newmans did not present an

adequate reason for failing to request Mr. Coleman as a rebuttal expert until the

deadline expired. See id. at 203. And, Mr. Scott’s original opinion, set forth on

page four, was not significantly different in that he noted excessive heat and

stated that excessive heat suggested use of an accelerant.

      Moreover, we are not convinced that Mr. Coleman’s testimony would have

affected the outcome of the trial. His criticism of Mr. Hardin’s experiments was

limited to indicating that the testing was not thorough or sophisticated and that he

could not determine whether branding could occur whether the burner was on or

off. Also, his conclusion that the skillets had not melted was not significantly

different from the testimony of Mr. Pilkington.

D. Bad Faith

      Lastly, the Newmans argue that the district court erred in granting State

Farm’s motion for partial summary judgment on the claim that State Farm acted

in bad faith. We review the district court’s grant of summary judgment de novo.

Fischer v. Forestwood Co., 525 F.3d 972, 978 (10th Cir. 2008). Summary

judgment is appropriate “if the pleadings, the discovery and disclosure materials

                                        -20-
on file, and any affidavits show that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). “In conducting our analysis, we view all of the facts in the light most

favorable to the non-movant and draw all reasonable inferences from the record in

the non-movant’s favor.” Fischer, 525 F.3d at 978. “While we view the record in

the light most favorable to the non-moving party, that party must still identify

sufficient evidence requiring submission to the jury to survive summary

judgment.” Id. (quotation omitted).

      Oklahoma law provides that “an insurer has an implied duty to deal fairly

and act in good faith with its insured and . . . the violation of this duty gives rise

to an action in tort.” Christian v. Am. Home Assur. Co., 577 P.2d 899, 904 (Okla.

1977). “[T]ort liability may be imposed only where there is a clear showing that

the insurer unreasonably, and in bad faith, withholds payment of the claim of its

insured.” Id. at 905. “[B]ad faith cannot exist if an insurer’s conduct was

reasonable under the circumstances.” Barnes v. Okla. Farm Bureau Mut. Ins. Co.,

11 P.3d 162, 170-71 (Okla. 2000). “If there is a legitimate dispute about

coverage, an insurer’s decision to refuse to pay a claim or to litigate a dispute is

not a breach of the duty of good faith where the insurer’s position is reasonable

and legitimate.” S. Hospitality, Inc. v. Zurich Am. Ins. Co., 393 F.3d 1137, 1142

(10th Cir. 2004) (quotation omitted). Thus, “[t]he decisive question is whether

the insurer had a good faith belief, at the time its performance was requested, that

                                          -21-
there was a justifiable reason for withholding payment under the policy.” Willis

v. Midland Risk Ins. Co., 42 F.3d 607, 612 (10th Cir. 1994) (citing Buzzard v.

McDanel, 736 P.2d 157, 159 (Okla. 1987)).

      “A jury question arises only where the relevant facts are in dispute or

where the undisputed facts permit differing inferences as to the reasonableness

and good faith of the insurer’s conduct.” Oulds v. Principal Mut. Life Ins. Co.,

6 F.3d 1431, 1436 (10th Cir. 1993). “[T]he fact that a reasonable jury could find

in favor of the insurer based on all facts known or that should have been known

by the insurer when it denied a claim is strong evidence that a dispute is

legitimate.” Id. at 1442 (quotation omitted).

      Applying this law, the district court decided that there was a legitimate

dispute concerning State Farm’s duty to pay the Newmans’ claim and the

Newmans therefore failed to show that State Farm breached its good faith duty to

pay their claim. The court noted that State Farm was ready to pay until it

received reports that the Newmans may have hired someone to set the house on

fire. Because no cause for the fire could be definitively determined, the court

found that it was reasonable for State Farm to investigate the arson reports. Also,

the court found that although the Newmans presented innocent explanations for

the incriminating statements made by others, it was not unreasonable for State

Farm to inquire about the Newmans’ motive and opportunity to burn their home.




                                        -22-
In other words, State Farm had a reasonable basis for disputing coverage and it

therefore did not act in bad faith by refusing to pay the Newmans’ claim.

      The Newmans, however, contend that there were genuine issues of material

fact whether a reasonable juror could conclude that State Farm knew or should

have known that there was insufficient evidence of an incendiary cause for the

fire and whether a reasonable juror could conclude that State Farm knew or

should have known that the evidence of the Newmans’ involvement in the fire

was not worthy of credence. The Newmans maintain that the only evidence of

motive and opportunity for arson was the gossip of Pam Snyder and Ava Shaffer

and Rob McDonald’s story. Additionally, they submit that the experts’ agreement

that the cause of the fire could not be determined was sufficient reason to submit

the bad faith question to the jury. Thus, they contend there was no reliable

evidence of an incendiary cause for the fire.

      Under the circumstances presented here, we conclude that there was no

genuine issue of material fact reasonably tending to show that State Farm acted in

bad faith in denying the Newmans’ claim. Instead, State Farm’s resisting

payment pending investigation was reasonable based on the statements of persons

indicating the fire was due to arson. No reasonable jury could find State Farm’s

investigation and evaluation of the Newmans’ claim was unreasonable given the

legitimate dispute about the cause for the fire. Because there was a legitimate

coverage dispute, there is no reasonable inference of bad faith. See id. at 1440.

                                        -23-
Accordingly, we agree with the district court that there are no issues of material

fact to submit to the jury and the evidence “is so one-sided that [State Farm] must

prevail as a matter of law.” Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170,

1179 (10th Cir. 2007) (quotations omitted).

                                         III.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




                                        -24-
