A defendant, an underground power line locator company, brought a motion to exclude a plaintiff’s rebuttal expert in a negligence action where plaintiff alleged that the defendant failed to locate and mark an underground power line. Plaintiff struck the unmarked power line with a shovel and suffered injuries. Defendant argued Plaintiff’s rebuttal expert should have been disclosed in its initial expert disclosures. Therefore, his report should be excluded.
Prior to beginning work on the project, Plaintiff’s supervisor contacted the Kansas One-Call system to have the underground utilities in the area located and marked. The locating work was performed by Defendant’s employee. When he later started work, Plaintiff saw there were no markings in a specific area, which, according to Plaintiff, meant Defendant’s employee had determined no underground services were buried there.
After his boring machine’s striker alert system sounded an alarm, Plaintiff withdrew the drill and started digging by hand with a metal shovel in that area. He didn’t call the One-Call center, Defendant, or the utility operator. As he was digging, He hit a live wire and suffered an electrical shock. He was thrown back and briefly lost consciousness.
In his negligence action, Plaintiff retained a liability expert who concluded that the locator, Defendant’s employee, was negligent because he didn’t try to locate the buried power line by walking the entire length of the property. Defendant’s liability expert said that Defendant’s employee’s sweep of the property was reasonable, and there were reasons why he may have failed to detect that particular underground power line.
Plaintiff then designated a rebuttal expert who concluded that a competent locator would perform the locate using a particular technique instead of the technique used by Defendant’s employee