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Shives and Racher: How to prepare for an unavailable expert witness

August 8, 2018
shives-jenna-mug.jpg Shives
racher-peter-mug Racher

You have been preparing an environmental pollution case scheduled to go to trial next month. The witnesses are primed. Your theories are solid. Your exhibits are ready.

You send an email to your environmental expert witness to review a few technical matters. No worries, you think. Your expert, a pre-eminent scholar in her field, was deposed months ago. She gave magnificent testimony, worth every penny she earned in what has proven to be a very expensive matter for your client. Your client is counting on a positive outcome.

Hmmm. Hours later, your expert has not responded to your email. So you call the expert’s cell phone and leave a message.

Hours later, still no answer. What gives? You call the expert’s office.

That’s when you find out your expert had a heart attack and died days ago. “But that’s impossible!” you think. “I spoke to her last week. She said she had just returned from hiking the Appalachian Trail to celebrate her 78th birthday! She sounded fine. Our trial date is next month! She can’t die now!”

Ah, but she did die, and her death may now be the death knell for your lawsuit.

A good expert witness can be the deciding factor in obtaining a favorable outcome for your client. The expert is able to provide crucial evidence in summary judgment proceedings, or to help a jury understand the technical details of a complex case. But what happens if in the days, weeks or months before trial, your expert is suddenly unavailable due to illness, death or other circumstances beyond your control? Several immediate questions arise: Do you have the right to hire a new expert? Was your expert elderly and should you have planned for her demise? Must you proceed to trial without an expert — which means you likely will lose? If you get a new expert, can the new expert come up with new theories and opinions? Or is the new expert limited to just the opinions expressed by the original expert? If there is a case management plan in place, what happens when the disclosure deadlines have already passed or if discovery is closed?

The good news is that, generally, courts have held that a party has the right to substitute an expert witness even after the close of discovery or on the eve of trial when the event is “beyond the control of the [party] or their counsel.” Wright v. Miller, 989 N.E.2d 324, 331 (Ind. 2013). The first action that counsel should take is informing opposing counsel and the court of the need to substitute an expert witness. This minimizes prejudice and surprise to the other party. It also allows the court to reset deadlines as appropriate.

Next, counsel should immediately begin searching for a replacement expert witness. Think back to the experts you interviewed in the early stages of your investigation. Would any of those individuals be suitable? Another good idea, if your clients have the means and the testimony of an expert is critical to your case, is to find two experts at the beginning of your search and keep one in reserve as a standby expert. Keep this expert up-to-date periodically as the case goes on so that if the standby ultimately needs to be called to testify, she will be informed about how the case has been progressing.

Federal case authority also supports a party’s ability to substitute an expert in unexpected circumstances. “Death of an expert witness falls squarely within the category of circumstances that require a late disclosure.” Baumann v. American Family Mutual Ins. Co., 278 F.R.D. 614, 616 (D. Colo. 2012) (quoting Morel v. Daimler-Chrysler Corp., 259 F.R.D. 17, 20 (D.P.R. 2009)); accord Bailey v. Toyota Motor Corp., No. IP 01-1456-C-T/K, 2003 U.S. Dist. LEXIS 21999, at *12 n.4 (S.D. Ind. Oct. 31, 2003) (finding good cause to extend deadlines following the death of plaintiff’s expert witness); Manildra Milling Corp. v. Ogilvie Mills, Inc., Civil Action Case No. 86-2457-S, 1991 U.S. Dist. LEXIS 14159, at *5 (D. Kan. Sep. 20, 1991).

In Baumann, the plaintiff’s expert prepared an initial report, a supplemental report and was deposed by the defendant. Id. at 615. The expert witness died several weeks after discovery was completed, and only one month before trial was set to begin. Id. The defendant opposed the substitution and claimed that the substitution would be prejudicial. Id. at 616. It suggested a fair remedy was just to use the deceased expert’s deposition testimony. Id. at 616. The court held that using only the deposition testimony was not a “‘fair remedy’ because [the expert] was only cross-examined during his deposition and so Plaintiff would be deprived of the ability to conduct a direct examination of [the expert]. Additionally, Plaintiff would be prejudiced because a jury would likely find a live witness more compelling and credible than a dry recitation of deposition testimony.” Id. Simply put, a party is not entitled to a windfall when the other party’s expert witness is unexpectedly unavailable. See Manildra Milling Corp., 1991 U.S. Dist. LEXIS 14159, at *5 (finding that preventing the defendant from presenting the testimony of a substitute expert witness after the original expert died “could result in manifest injustice.”).

However, a party must be diligent in notifying the court and the other parties of the need for a substitution. In Fid. Nat’l Fin., Inc. v. Nat’l Union Fire Ins. Co., 308 F.R.D. 649, 655 (S.D. Cal. 2015), the defendant’s expert notified defendant’s counsel that he could no longer testify for medical reasons in May 2014. Id. at 651. Plaintiff’s counsel was not notified until March 2015. The court found that the defendant’s substantial delay in informing the court and plaintiff, combined with the prejudice to the plaintiff due to the impending trial date and substantial costs, justified denial of the request. Id. at 655.

Because federal and state case authority supports the position that generally you may hire a new expert, and you’ve selected one, what exactly are the bounds of the new expert’s testimony? Out of fairness to the opposing party, a new expert may not testify as to subjects materially different than the original expert was expected to testify. The substitution generally is intended to put the moving party in as good of a position as it would have been if the original expert had testified, but is not intended to allow the plaintiffs the ability to designate a superior expert after deadlines have already passed. See generally Lincoln Nat’l Life Ins. Co. v. Transamerica Fin. Life Ins. Co., No. 1:04-CV-396, 2010 U.S. Dist. LEXIS 103744, at *4-5 (N.D. Ind. Sep. 30, 2010), and cases cited therein. If a party’s new expert opines beyond the scope of the original expert’s testimony, a motion to exclude may be filed by the opposing party.

In all, the underlying rationale in replacing an expert witness after the expert becomes unavailable due to no fault of the party or its counsel is fairness. A party generally may find a substitute expert witness under these circumstances, even on the eve of trial, but that expert generally may not exceed the scope of testimony that would have been provided by the original expert.•

Jenna Shives is an associate and Peter Racher is a partner who concentrate on environmental law matters at Plews Shadley Racher & Braun LLP in Indianapolis. Opinions expressed are those of the authors.

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