Shipp v. Murphy et al

Filing 86

ORDER granting 80 Motion to Substitute Expert(s). (See Order for specifics.) Signed by Honorable Susan O. Hickey on August 27, 2019. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
CRAIG SHIPP

v.

PLAINTIFF

Case No. 4:18-cv-4017

STEVEN ARNOLD; DR.
MIMO LEMDJA; LENORA
TURNER; KINDALL SMITH;
and CORRECT CARE SOLUTIONS, LLC

DEFENDANTS
ORDER

Before the Court is Plaintiff Craig Shipp’s Motion to Substitute Expert(s). (ECF No. 80).
Separate Defendant Steven Arnold has responded. (ECF No. 83). Separate Defendants Dr. Mimo
Lemdja, Lenora Turner, Kindall Smith, and Correct Care Solutions, LLC (the “Medical Defendants”)
have also responded. (ECF No. 85). The Court finds the matter ripe for consideration.
I. BACKGROUND
On March 26, 2018, Plaintiff, through counsel, filed an amended complaint in this action
pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights when he was
incarcerated in the Southwest Arkansas Community Correction Center in Texarkana, Arkansas. The
Court’s operative Final Scheduling Order sets out, in relevant part, that the parties’ initial expert
witness disclosures were due on March 24, 2019; that their rebuttal expert witness disclosures were
due on May 10, 2019; and that the discovery deadline was June 24, 2019. The trial of this matter is
currently scheduled for the week of October 21, 2019.
On June 7, 2019, the parties took the deposition of Plaintiff’s jail and medical expert, Joseph
William Wright, MD. On July 25, 2019, Dr. Wright’s spouse informed Plaintiff’s counsel that Dr.
Wright passed away shortly after the date of his deposition. On August 1, 2019, Plaintiff filed the
instant motion pursuant to Federal Rule of Civil Procedure 16(b), seeking to designate and substitute

one or more expert witnesses in place of Dr. Wright. Defendants oppose the motion.
II. BACKGROUND
“In determining whether to allow a substitute expert, courts rely on Federal Rules of Civil
Procedure 16(b) and 6(b) and treat the request for a substitute expert as a motion to modify the
scheduling order.” Katon v. United States, No. 5:16-CV-05023-JLV, 2019 WL 1254563, at *2 (D.S.D.
Mar. 18, 2019). Rule 16(b) governs the issuance and modification of pretrial scheduling orders and

applies when a party seeks to modify a scheduling order after the passage of a court-ordered
deadline. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008).
The Court’s pretrial scheduling order controls the course of an action unless modified. Id. “A
schedule may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
Thus, if a party files for leave to modify outside of the court’s scheduling order, the party must show
good cause. Sherman, 532 F.3d at 716 (8th Cir. 2008). Prejudice to the nonmoving party resulting
from modification of the scheduling order may also be considered, but courts generally “will not
consider prejudice if the movant has not been diligent in meeting the scheduling order’s deadlines.”
Id. at 717; see also Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001) (reasoning that a Rule
16(b) analysis need not proceed to or consider prejudice to the nonmovant if the movant has not shown
diligence).
Plaintiff seeks to substitute expert witnesses after the expiration of the deadline for making
initial expert witness disclosures. Thus, Plaintiff’s request is governed by Rule 16(b). The Court will
begin by determining whether Plaintiff has shown good cause to allow substitution of his expert
witness. If so, the Court will then determine whether any other considerations warrant denying the
motion.
A. Good Cause
“What constitutes good cause sufficient to justify the modification of a scheduling order

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necessarily varies with the circumstances of each case.” 6A Charles Alan Wright et al. Federal
Practice and Procedure Civil, § 1522.2 (3d ed.). “The primary measure of good cause is the movant’s
diligence in attempting to meet the order’s requirements.” Rahn v. Hawkins, 464 F.3d 813, 822 (8th
Cir. 2006). Good cause generally requires a change in circumstance, law, or newly discovered facts.
Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012).
Plaintiff argues that Dr. Wright’s death satisfies Rule 16(b)’s good cause requirement and
Defendants do not argue otherwise. The Court agrees that Dr. Wright’s death satisfies the good cause
requirement, as it is well settled that the death of an expert witness presents good cause to designate a
substitute expert witness. See, e.g., Crandall v. Hartford Cas. Ins. Co., No. CV 10-00127-REB, 2012
WL 6086598, at *3 (D. Idaho Dec. 6, 2012) (“If an expert is unavailable to testify at trial because of
death, . . . that is a legitimate and appropriate reason for allowing a new expert to be named, even after
deadlines for doing so have passed.”); Morel v. Daimler-Chrysler Corp., 259 F.R.D. 17, 20 (D. P.R.
2009) (“Death of an expert witness falls squarely within the category of circumstances that require a
late disclosure.”).
The Court is satisfied that Dr. Wright’s death could not have been foreseen by Plaintiff and
was not within his control. Plaintiff made reasonably diligent efforts to comply with the scheduling
order and promptly notified Defendants and the Court after learning of Dr. Wright’s death. Thus, the
Court finds that Plaintiff has demonstrated good cause for his motion. However, the inquiry must
proceed further, and the Court will now determine whether other considerations warrant denial of
Plaintiff’s request.
B. Other Prejudicial Considerations
Plaintiff’s motion may be denied if Defendants would be unduly prejudiced if Plaintiff is
allowed to substitute his expert witness. Sherman, 532 F.3d at 717. This issue is the primary fighting
point of the motion.
Defendants argue that they would be prejudiced by allowing Plaintiff to substitute his expert

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witness because the trial of this matter is currently set for the week of October 21, 2019, and the parties’
dispositive motions are due on September 3, 2019. Defendants state that they have developed their
litigation and dispositive motion strategies based on Dr. Wright’s expert report and deposition
testimony. Defendants suggest that, rather than allow substitution of experts, the Court should instead
require that Plaintiff read Dr. Wright’s deposition testimony into the record at trial. Plaintiff argues in
turn that he would be prejudiced by having to rely solely on Dr. Wright’s deposition testimony because
a jury would find a live expert witness more compelling and credible than a dry recitation of an expert
deposition transcript.
The Court will first address Defendants’ argument regarding their litigation and dispositive
motion strategies. Then, if necessary, the Court will separately address Defendants’ arguments
regarding the impending trial and their suggestion that the Court instead require that Plaintiff rely on
Dr. Wright’s deposition testimony at trial.
1. Defendants’ Strategies
Defendants argue that they will suffer prejudice because they have based their litigation
dispositive motion strategies on Dr. Wright’s expert report and deposition testimony. However, the
Court is unpersuaded. The purpose of allowing substitution of an expert is to put the movant in the
same position it would have been in but for the need to change experts; it is not an opportunity to
designate a “better” expert who holds differing or more advantageous opinions than the first expert.
See Adams v. Cooper Indus., Inc., No. 03–476–JBC, 2007 WL 1075652, *3 (E.D. Ky. Apr. 5, 2007).
To minimize prejudice to the opposing party, “courts generally limit the scope of the testimony that
may be given by the substitute expert . . . to the subject matter and theories already espoused by the
former expert.” Lincoln Nat’l Life Ins. Co. v. Transamerica Fin. Life Ins. Co., No. 1:04-CV-396, 2010
WL 3892860, at *2 (N.D. Ind. Sept. 30, 2010).
“This is not to say that the new expert must ‘simply adopt the prior expert’s conclusions
verbatim—in effect, doing little more than authenticating and confirming the prior expert’s

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conclusions.’ Rather, the substitute expert ‘should have the opportunity to express his opinions in his
own language after reviewing the evidence and performing whatever tests prior experts on both sides
were allowed to perform.’” Id. (quoting Morel, 259 F.R.D. at 22). Although any substitute expert’s
opinions need not be identical to Dr. Wright’s opinions, they must be substantively similar and cannot
be contrary to or inconsistent with Dr. Wright’s opinions. U.S. ex rel. Agate Steel, Inc. v. Jaynes Corp.,
No. 2:13-CV-01907-APG, 2015 WL 1546717, at *2 (D. Nev. Apr. 6, 2015). Assuming that there is
no meaningful change in the subject matter and theories expressed by Plaintiff’s new expert, the Court
finds that Defendants will suffer little prejudice with respect to the development of their litigation and
dispositive motion strategies, as the new expert must hold substantially the same opinions as Dr.
Wright. If Plaintiff’s substitute expert advances new theories or new subject matter, Defendants may
file a motion to exclude that portion of the expert testimony. See Lincoln Nat’l Life Ins. Co., 2010 WL
3892860, at *4.
The Court finds that any prejudice Defendants would suffer with respect to their litigation and
motion strategies will be cured by the above-discussed restrictions, which will ensure that the new
expert’s opinions are materially the same as Dr. Wright’s. Accordingly, the Court finds that this
argument presents no reason to deny substitution.
2. Impending Trial
Defendants also argue that they will suffer prejudice from substitution because of the
impending trial date. The Court believes that this argument is somewhat of an offshoot of the previous
argument and that the contemplated harm is largely cured by the restrictions outlined in the above
section, but the argument deserves attention nonetheless.
As previously stated, this case is currently set for trial on the week of October 21, 2019, just
two months away. Plaintiff’s motion leaves the Court with the impression that he has not yet sought
out and selected his substitute experts, as he requests leave to “seek a substitute expert, and potentially
two experts due to the unique qualification of Dr. Wright.” (ECF No. 80, p. 2). Thus, Plaintiff will

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have to locate one or more suitable replacement experts; retain their services; give them adequate time
to review all pertinent information in this case, formulate their expert opinions, and author a new expert
report; and then coordinate with Defendants to schedule one or more expert witness depositions. This
hypothetical also presupposes that Defendants do not designate one or more new rebuttal experts,
which would likely require even more time if they do.
The Court is doubtful that all of this can be accomplished between now and trial, which is only
two months away. Rather, the Court believes that the current trial setting will most likely prove
unworkable. To avoid prejudicing either side by giving them inadequate time to fully address
Plaintiff’s substitute expert and fashion their strategies accordingly, the Court will entertain a motion
for a trial continuance if the parties determine that this process cannot be completed before October
21, 2019. See TIC - The Indus. Co. Wyo. v. Factory Mut. Ins. Co., No. 4:10-cv-3153, 2012 WL
2830867, at *8 (D. Neb. July 10, 2012) (allowing substitution of an expert witness and stating that “the
trial of this case is still two months away and, upon the parties’ motion, could be continued again to
permit a full and fair trial of all the issues”). If requested, a continuance would cure any prejudice to
Defendants with respect to the impending trial by giving them ample time to investigate the opinions
espoused by Plaintiff’s new expert and depose the new expert on the same. Accordingly, the Court
finds that this argument presents no reason to deny substitution.
3. Reliance on Deposition Transcript
Defendants also argue that, instead of allowing substitution, the Court should require that
Plaintiff use Dr. Wright’s deposition testimony at trial. Plaintiff argues that he would be prejudiced
by this because the jury would be less receptive to the reading of a deposition transcript at trial instead
of hearing a live witness.
A court may allow a party to use all or part of a deposition at trial in certain situations, including
when the witness is dead. Fed. R. Civ. P. 32(a)(4). However, “[t]here is no question that oral testimony
is the preferred form of testimonial evidence.” Manning v. Lockhart, 623 F.2d 536, 539 (8th Cir.

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1980).
Defendants correctly state that the Court could require that Plaintiff use Dr. Wright’s
deposition transcript at trial. However, the Court is mindful that oral testimony is preferred over the
reading of a deposition transcript. In light of the Court’s above ruling that substitution will be proper
under Rule 16(b), the Court finds it unnecessary to require Plaintiff to utilize Dr. Wright’s transcript
at trial. Accordingly, the Court finds that this argument presents no reason to deny substitution.
III. CONCLUSION
For the above-stated reasons, the Court finds that Plaintiff’s Motion to Substitute Expert(s)
(ECF No. 80) should be and hereby is GRANTED. Plaintiff may designate one or more substitute
experts to replace Dr. Wright, subject to the restrictions outlined in this order regarding the scope of
the new experts’ testimony and opinions. Defendants shall receive an opportunity to depose any
substitute experts that are chosen. The parties may request a continuance of the current trial setting if
the substitute experts cannot be chosen and deposed before trial.
IT IS SO ORDERED, this 27th day of August, 2019.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge

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