MCKINLEY v. UNITED STATES OF AMERICA

Filing 33

ORDER GRANTING 29 Motion for Substitution of Expert Witness. Ordered by US DISTRICT JUDGE HUGH LAWSON on 8/2/2016. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

MARY JO MCKINLEY, Individually
and as Administrator of the Estate
of HOWARD MCKINLEY,
Civil Action No. 5:15-CV-101

Plaintiff,
v.
THE
UNITED
AMERICA,

STATES

OF

Defendant.
ORDER
This case is before the Court on Plaintiff’s Motion for Substitution of Expert
Witness. (Doc. 29).
I.

FACTUAL BACKGROUND
This is a medical malpractice and negligence action brought under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b)(1) (2013) and 28 U.S.C.
§§ 2671–80 (2000). Pursuant to the Court’s Rules 16 and 26 Order (Doc. 23),
the Parties agreed that Plaintiff would disclose the identity of any expert
witnesses on or before March 1, 2016 and that the Government would disclose
the identity of any expert witnesses on or before March 31, 2016. Discovery was
initially set to expire on May 31, 2016; however, the deadline for discovery was
later extended through September 30, 2016. (Doc. 28).

Plaintiff identified her oncologist expert, Dr. Marianne Barnhill (“Dr.
Barnhill”), on March 1, 2016, in accordance with the scheduling order.

Dr.

Barnhill is an oncologist licensed to practice in Louisiana. On May 22, 2016,
Plaintiff’s counsel received notification from Dr. Barnhill that she was leaving her
employment with Tulane University and taking a position with the United States
government as a staff oncologist at Walter Reed National Military Medical
Center. As a result of her new employment, “she is prohibited from performing
any work outside of Walter Reed including work testifying as an expert witness in
medical malpractice actions.” (Doc. 29-1, p. 2).
On May 24, 2016, counsel for Plaintiff notified counsel for the Government
that Dr. Barnhill had accepted new employment and would no longer be able to
serve as Plaintiff’s expert in this action. It was clear at this point that Plaintiff’s
counsel intended to substitute a new expert witness for Dr. Barnhill. Counsel for
the Government reserved its right to challenge the substitution of Plaintiff’s
expert, and on June 9, 2016, informed Plaintiff’s counsel by letter than the
Government intended to challenge the substitution of Plaintiff’s expert. Plaintiff
then filed this Motion for Substitution of Expert Witness.

On July 18, 2016,

Plaintiff identified Dr. Mark Keaton, an oncologist licensed to practice in Georgia,
as the expert who would replace Dr. Barnhill.
II.

DISCUSSION
The substitution of an expert witness is allowed under the following

circumstances: (1) when good cause and excusable neglect necessitate the
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amendment of the scheduling order, pursuant to Rule 16(b) of the Federal Rules
of Civil Procedure; and (2) when a previously undisclosed witness’s testimony is
substantially justified or harmless, pursuant to Rule 37(c). A party seeking to
extend an already-expired scheduling order deadline must show both good
cause and excusable neglect. Payne v. C.R. Bard, Inc., 606 Fed. Appx. 940, 944
(11th Cir. 2015); Fed. R. Civ. P. 16(b). “Good cause” exists when “the schedule
cannot be met despite the diligence of the party seeking the extension.”

Id.

(citation omitted). In evaluating whether there has been “excusable neglect,” a
court must consider “the danger of prejudice to the nonmovant, the length of the
delay and its potential impact on judicial proceedings, the reason for the delay,
including whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.” Id. (citation omitted).
Substitution of an expert witness may also be allowed under Rule 37(c). A
previously undisclosed expert witness may testify at trial if the nondisclosure was
“substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Such a finding
negates any violation of Rule 26, and is within the district court’s “broad
discretion.” See Abdulla v. Klosinski, 898 F. Supp. 2d 1348, 1359 (S.D. Ga.
2012).

In exercising its discretion, the court should consider the following:

prejudice to the opposing party and its ability to cure any prejudice, the extent to
which the substitution would disrupt the trial, the importance of the substitution,
and the reason for the request.

Id.; see also Fabrica Italiana Lavorazione

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Materie Organiche, S.A.S. v. Kaiser Aluminum & Chem. Corp., 684 F.2d 776,
780 (11th Cir. 1982).
Plaintiff argues that permission to substitute is warranted under both Rule
16(b) and Rule 37(c). Plaintiff contends that good cause, excusable neglect, and
substantial justification have all been shown. First, Dr. Barnhill’s decision to take
new employment with the Government was completely outside of Plaintiff’s
control.

Second, Plaintiff acted both diligently and timely in informing the

Government of the need to substitute a new expert for Dr. Barnhill.

Finally,

Plaintiff argues that the Government will not suffer prejudice by the substitution,
while Plaintiff will suffer clear prejudice if the substitution is not permitted.
In response, the Government avers that the Court should first consider
whether Dr. Barnhill was qualified to testify as an expert in this case. Tennessee
Code § 29-26-115(b) requires an expert witness to be licensed in Tennessee or a
contiguous bordering state in order to testify, if the expert is in a health care
profession that requires licensure under Tennessee law. Dr. Barnhill is licensed
in Louisiana, which does not border Tennessee. As a result, the Government
argues that Dr. Barnhill was never qualified to testify under Tennessee law and
Plaintiff should not now have the opportunity to replace Dr. Barnhill, when
Plaintiff was well aware of Tennessee’s law on the qualifications of an expert
witness at the time Dr. Barnhill was disclosed as her expert. Aside from her
qualifications as an expert, the Government argues that it will be prejudiced by

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the substitution if the new expert’s opinions are wholly different from Dr. Barnhill’s
opinions, and that a substitution would result in further delays in discovery.
The Court finds that Dr. Barnhill’s substitution is warranted under both Rule
16(b) and Rule 37(c). Dr. Barnhill’s new employment was a decision completely
outside of Plaintiff’s control, and was immediately communicated to the
Government.

The Government had not yet deposed Plaintiff’s expert, and

Plaintiff has now disclosed her substitute expert, Dr. Mark Keaton, along with his
expert witness report. Dr. Keaton’s opinions are nearly identical to Dr. Barnhill’s
opinions, minimizing any prejudice the Government might suffer. Further, the
Court does not foresee significant delay to the proceedings as a result of this
substitution. Thus, the Court concludes that Plaintiff has shown good cause,
excusable neglect, and substantial justification, warranting substitution under
either Rule 16(b) or Rule 37(c).
The Court declines to consider Dr. Barnhill’s qualifications as an expert
under Tennessee law. This sort of Daubert-style inquiry is not relevant at this
stage of the litigation. See Currie v. Chevron U.S.A. Inc., No. 1:05-CV-1610BBM, 2006 WL 5249707, at *2 (N.D. Ga. Sept. 19, 2006) (citing Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594–95 (1993)) (evaluating an
expert witness’s qualifications at the close of discovery, upon the filing of a
motion to exclude certain opinions of the expert). Further, determination of
whether Dr. Barnhill was qualified to testify as an expert witness in this case

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would be a waste of judicial resources, when Dr. Barnhill will not testify,
regardless of the outcome of such a determination.
III.

CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Substitution of Expert

Witness (Doc. 29) is GRANTED. Plaintiff has the Court’s permission to replace
Dr. Barnhill with a new expert witness, which the Court understands Plaintiff has
already taken steps to do.
SO ORDERED, this the 2nd day of August, 2016.

/s/ Hugh Lawson_________________
HUGH LAWSON, SENIOR JUDGE
les

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