Practice Tip: Playing Poker with Experts

Many product liability defense lawyers have had great success at one time or another in taking the deposition of a plaintiff's key engineering expert. They can tell you stories about depositions when the expert: 1) offered opinions inconsistent with prior expert reports, deposition or trial testimony, or several articles that he has written in engineering publications; 2) made errors in calculations that supposedly formed the basis for his opinions; 3) admitted that he lied about his qualifications on his resume; or 4) while answering questions, was evasive, sweated profusely, or fumbled around for answers so badly that he was incoherent. On these occasions, it is easy to believe that no jury could possibly find the expert to be a credible witness in the unlikely event that a court were to deny the forthcoming Daubert/Kumho motion.

But what happens if, after the discovery period ends and after you file that long-anticipated Daubert/Kumho motion, plaintiff's counsel responds by filing a motion to withdraw the original, discredited expert and to substitute a new one ' one with superior qualifications, and a much stronger theory of liability? In support of the motion, the plaintiff appeals to the court's discretion, and asserts simply that the expert's horrendous answers to questions at the deposition somehow justify a substitution of experts long after the discovery deadline closed. Your initial reaction would likely be outrage. You might think that the court could not possibly allow such a complete disregard of its own scheduling order and the Federal Rules of Civil Procedure. Unfortunately, depending on a number of factors, including the jurisdiction in which you practice, the court may well permit the substitution of experts.

It is not the purpose of this two-part article to evaluate the different positions taken by the courts in this area, or to determine whether the courts that allow late substitutions of experts undermine either the laudable goal of judicial efficiency or the Supreme Court's decisions in Daubert and Kuhmo. Instead, this article reviews some of the case law in this area, and suggests approaches for dealing with the possibility that a court may permit the untimely disclosure and/or substitution of experts.

Brief Survey of Case Law

As you would expect, there is case law supporting the preclusion of a late disclosed expert. In Nelson v. Tennessee Gas Pipeline, 243 F.3d 244 (6th Cir. 2001), the plaintiffs alleged that they were injured by environmental exposure to polychlorinated biphenyls (PCBs), which were released into the air, water and soil surrounding a natural gas pipeline pumping station. In their appeal, the plaintiffs claimed that the district court abused its discretion by excluding the expert testimony of two of their expert witnesses on Daubert and Kumho grounds, and by failing to provide plaintiffs with an opportunity to offer other expert testimony in their place. In rejecting the plaintiffs' argument, the Court of Appeals for the Sixth Circuit stated that “fairness does not require that a plaintiff, whose expert witness testimony has been found inadmissible under Daubert, be afforded a second chance to marshal other expert opinions and shore up his case before the court may consider a defendant's motion for summary judgment.” Id. at 250.

Other courts also have denied untimely motions to substitute expert witnesses where there was no showing that the original expert was unavailable, e.g., Robinson v. Adirondack Med. Ctr., 244 F. Supp. 2d 66, 71 (N.D.N.Y. 2003). Similarly, courts have not permitted late disclosed experts where the proponent of the new experts had not established “good cause” for the late disclosures, the objecting party would be prejudiced by the delay entailed in the late disclosure, and the proponent of the new expert could rely on the deposition or trial transcript of the originally disclosed expert. Grain v. Trinity Health, No. 03-72486, 2008 U.S. Dist. LEXIS 102644, at * 10-12 (E.D. Mich. Dec. 18, 2008); LNC Invs. v. First Fid. Bank, 92 Civ. 7584 (CSH), 2000 U.S. Dist. LEXIS 13038 at * 10 (S.D.N.Y. Sept. 11, 2000).

Nevertheless, there are a number of decisions permitting the late disclosure or substitution of expert witnesses. In Betzel v. State Farm Lloyds, 480 F.3d 704 (5th Cir. 2007), for instance, the Fifth U.S. Circuit Court of Appeals held that the district court abused its discretion in refusing to allow the late expert designations. In that case, mold was found in various spots in the insured's home. The insurer paid over $100,000 to remediate the mold and toward the rebuilding of the home, but denied the insured's claim for further coverage. Three months after the district court's deadline for the designation of expert witnesses, and one week after the deadline to file Daubert motions, the insured attempted to designate his builder and mold remediation specialist as expert witnesses, without offering any explanation for the late designation. The district court denied the insured's request.

On appeal, the Fifth Circuit considered four factors in deciding whether to permit the late disclosure of experts: “'(1) the explanation for the failure to timely identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.'” Id. at 707 (quoting Geiserman v. MacDonald, 893 F. 2d 787, 791 (5th Cir. 1990)). Even though the insured conceded that he had no explanation for the late disclosure, the Fifth Circuit reversed, reasoning that the new experts were crucial to the insured's case; without that testimony, the insured could not prove damages. In the court's view, the insurer was not prejudiced by the late designation, as its summary judgment motion focused almost exclusively on coverage issues, and any prejudice suffered by the insurer due to the late designation could have been cured by a continuance. Id. at 707-08.

A number of other courts have accepted the proposition that the discrediting of an expert at deposition constitutes “good cause” for the substitution of experts. In Drake v. Laboratory Corp. of America Holdings, No. 01-CV-1924 (FB) (RML), 2009 U.S. Dist. LEXIS 29591 (E.D.N.Y. Apr. 7, 2009), the court granted the plaintiff's motion to replace his toxicology expert when the expert, who held himself out as being qualified to opine on drug testing under the Department of Transportation regulations, disavowed such qualifications at his deposition. Similarly, in Vincent v. Omniflight Helicopters Inc., No. 08-C-0572, 2009 U.S. Dist. LEXIS 117966, at * 3, 13 (E.D. Wis. Nov. 24, 2009), a wrongful death action arising out of a helicopter crash, the court granted the plaintiff's motion to replace an expert witness after the expert “withdrew ' following a six-hour deposition at which counsel for Defendant ' seriously undermined his credibility by pointing out a series of falsehoods set forth in an Experience and Qualification Profile ' which he had provided in connection with his expert report in the case.” The plaintiff contended that his expert was unavailable because, although the deposition transcript existed, the expert's credibility was so “seriously undermined that to not allow his replacement would seriously harm plaintiff's case.”

Several courts have granted motions to substitute experts on the condition that plaintiff's counsel reimburse the defendants for the expenses incurred in preparing for and conducting the deposition of the first expert. Id. at 7-12; Sithon Mar. Co. v. Holiday Mansion, No: 96-2262-EEO, 1998 U.S. Dist. LEXIS 11822 (D. Kan. July 30, 1998) (for expenses incurred for defendant's expert); Payless Shoesource Worldwide, Inc. v. Target Corp., No. 05-4023-JAR, 2007 U.S. Dist. LEXIS 92377 (D. Kan. Dec. 14, 2007) (for costs of deposing withdrawn expert and rebutting his report).

Conclusion

Part Two of this Practice Tip will offer a suggested approach to dealing with this situation.

James H. Rotondo, a member of this newsletter's Board of Editors, is a Partner in Day Pitney LLP's Hartford, CT, office. He represents a broad range of corporate clients in product liability, negligence, insurance coverage, and commercial litigation matters and also serves as co-chair of the firm's Commercial Litigation Department.

Many product liability defense lawyers have had great success at one time or another in taking the deposition of a plaintiff's key engineering expert. They can tell you stories about depositions when the expert: 1) offered opinions inconsistent with prior expert reports, deposition or trial testimony, or several articles that he has written in engineering publications; 2) made errors in calculations that supposedly formed the basis for his opinions; 3) admitted that he lied about his qualifications on his resume; or 4) while answering questions, was evasive, sweated profusely, or fumbled around for answers so badly that he was incoherent. On these occasions, it is easy to believe that no jury could possibly find the expert to be a credible witness in the unlikely event that a court were to deny the forthcoming Daubert/Kumho motion.

But what happens if, after the discovery period ends and after you file that long-anticipated Daubert/Kumho motion, plaintiff's counsel responds by filing a motion to withdraw the original, discredited expert and to substitute a new one ' one with superior qualifications, and a much stronger theory of liability? In support of the motion, the plaintiff appeals to the court's discretion, and asserts simply that the expert's horrendous answers to questions at the deposition somehow justify a substitution of experts long after the discovery deadline closed. Your initial reaction would likely be outrage. You might think that the court could not possibly allow such a complete disregard of its own scheduling order and the Federal Rules of Civil Procedure. Unfortunately, depending on a number of factors, including the jurisdiction in which you practice, the court may well permit the substitution of experts.

It is not the purpose of this two-part article to evaluate the different positions taken by the courts in this area, or to determine whether the courts that allow late substitutions of experts undermine either the laudable goal of judicial efficiency or the Supreme Court's decisions in Daubert and Kuhmo. Instead, this article reviews some of the case law in this area, and suggests approaches for dealing with the possibility that a court may permit the untimely disclosure and/or substitution of experts.

Brief Survey of Case Law

As you would expect, there is case law supporting the preclusion of a late disclosed expert. In Nelson v. Tennessee Gas Pipeline , 243 F.3d 244 (6th Cir. 2001), the plaintiffs alleged that they were injured by environmental exposure to polychlorinated biphenyls (PCBs), which were released into the air, water and soil surrounding a natural gas pipeline pumping station. In their appeal, the plaintiffs claimed that the district court abused its discretion by excluding the expert testimony of two of their expert witnesses on Daubert and Kumho grounds, and by failing to provide plaintiffs with an opportunity to offer other expert testimony in their place. In rejecting the plaintiffs' argument, the Court of Appeals for the Sixth Circuit stated that “fairness does not require that a plaintiff, whose expert witness testimony has been found inadmissible under Daubert, be afforded a second chance to marshal other expert opinions and shore up his case before the court may consider a defendant's motion for summary judgment.” Id. at 250.

Other courts also have denied untimely motions to substitute expert witnesses where there was no showing that the original expert was unavailable, e.g., Robinson v. Adirondack Med. Ctr. , 244 F. Supp. 2d 66, 71 (N.D.N.Y. 2003). Similarly, courts have not permitted late disclosed experts where the proponent of the new experts had not established “good cause” for the late disclosures, the objecting party would be prejudiced by the delay entailed in the late disclosure, and the proponent of the new expert could rely on the deposition or trial transcript of the originally disclosed expert. Grain v. Trinity Health, No. 03-72486, 2008 U.S. Dist. LEXIS 102644, at * 10-12 (E.D. Mich. Dec. 18, 2008); LNC Invs. v. First Fid. Bank, 92 Civ. 7584 (CSH), 2000 U.S. Dist. LEXIS 13038 at * 10 (S.D.N.Y. Sept. 11, 2000).

Nevertheless, there are a number of decisions permitting the late disclosure or substitution of expert witnesses. In Betzel v. State Farm Lloyds , 480 F.3d 704 (5th Cir. 2007), for instance, the Fifth U.S. Circuit Court of Appeals held that the district court abused its discretion in refusing to allow the late expert designations. In that case, mold was found in various spots in the insured's home. The insurer paid over $100,000 to remediate the mold and toward the rebuilding of the home, but denied the insured's claim for further coverage. Three months after the district court's deadline for the designation of expert witnesses, and one week after the deadline to file Daubert motions, the insured attempted to designate his builder and mold remediation specialist as expert witnesses, without offering any explanation for the late designation. The district court denied the insured's request.

On appeal, the Fifth Circuit considered four factors in deciding whether to permit the late disclosure of experts: “'(1) the explanation for the failure to timely identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.'” Id . at 707 (quoting Geiserman v. MacDonald , 893 F. 2d 787, 791 (5th Cir. 1990)). Even though the insured conceded that he had no explanation for the late disclosure, the Fifth Circuit reversed, reasoning that the new experts were crucial to the insured's case; without that testimony, the insured could not prove damages. In the court's view, the insurer was not prejudiced by the late designation, as its summary judgment motion focused almost exclusively on coverage issues, and any prejudice suffered by the insurer due to the late designation could have been cured by a continuance. Id. at 707-08.

A number of other courts have accepted the proposition that the discrediting of an expert at deposition constitutes “good cause” for the substitution of experts. In Drake v. Laboratory Corp. of America Holdings, No. 01-CV-1924 (FB) (RML), 2009 U.S. Dist. LEXIS 29591 (E.D.N.Y. Apr. 7, 2009), the court granted the plaintiff's motion to replace his toxicology expert when the expert, who held himself out as being qualified to opine on drug testing under the Department of Transportation regulations, disavowed such qualifications at his deposition. Similarly, in Vincent v. Omniflight Helicopters Inc., No. 08-C-0572, 2009 U.S. Dist. LEXIS 117966, at * 3, 13 (E.D. Wis. Nov. 24, 2009), a wrongful death action arising out of a helicopter crash, the court granted the plaintiff's motion to replace an expert witness after the expert “withdrew ' following a six-hour deposition at which counsel for Defendant ' seriously undermined his credibility by pointing out a series of falsehoods set forth in an Experience and Qualification Profile ' which he had provided in connection with his expert report in the case.” The plaintiff contended that his expert was unavailable because, although the deposition transcript existed, the expert's credibility was so “seriously undermined that to not allow his replacement would seriously harm plaintiff's case.”

Several courts have granted motions to substitute experts on the condition that plaintiff's counsel reimburse the defendants for the expenses incurred in preparing for and conducting the deposition of the first expert. Id. at 7-12; Sithon Mar. Co. v. Holiday Mansion, No: 96-2262-EEO, 1998 U.S. Dist. LEXIS 11822 (D. Kan. July 30, 1998) (for expenses incurred for defendant's expert); Payless Shoesource Worldwide, Inc. v. Target Corp., No. 05-4023-JAR, 2007 U.S. Dist. LEXIS 92377 (D. Kan. Dec. 14, 2007) (for costs of deposing withdrawn expert and rebutting his report).

Conclusion

Part Two of this Practice Tip will offer a suggested approach to dealing with this situation.

James H. Rotondo, a member of this newsletter's Board of Editors, is a Partner in Day Pitney LLP's Hartford, CT, office. He represents a broad range of corporate clients in product liability, negligence, insurance coverage, and commercial litigation matters and also serves as co-chair of the firm's Commercial Litigation Department.