experts. 5. Applying the Balancing Standard Assuming, arguendo, the balancing standard applies to this case, BNSF’s showing is still inadequate to permit it access to FMC’s experts. “The claimed importance of expert testimony underscores the need for [BNSF] to have timely designated [its] expert witness so that [opposing counsel] could prepare for trial. The importance of such proposed testimony cannot singularly override the enforcement of local rules and scheduling orders.” Geiserman, 893 F.2d at 792 (footnote omitted). BNSF created the situation in which it finds itself by not cross-designating FMC’s experts to give notice it intended to rely on FMC’s witnesses without a formal agreement as to their shared use. See State ex rel. Ward v. Hill, 200 W.Va. 270, 278, 489 S.E.2d 24 (1997) (<HOLDING>). BNSF has not been diligent so as to entitle
holding that the defendants had received sufficient notice where the original defendants and the newly added defendants shared an identity of interests and were represented by attorneys who were involved in the litigation from its inception recognizing defendants state and federal constitutional rights to testify holding that a settlement agreement is not a court order and therefore a violation of the settlement agreement would not subject a party to contempt holding that absent a formal agreement among defendants in a litigation proceeding involving multiple defendants the circuit court should not generally permit a settling defendants expert witnesses to testify for the remaining defendants especially where doing so would violate the settlement agreement holding that prosecutors direct comments on a defendants failure to testify were not cured by subsequent inclusion in the jury charge of an instruction regarding the defendants right not to testify