T-Mobile South, LLC v. City of Roswell, Georgia

Filing 338

The Court GRANTS Defendant's Motion for Substitution of Expert [Doc.332] and DENIES Plaintiff's Request for Reconsideration [Doc. 330]. The parties are DIRECTED to meet and confer and submit a proposed schedule no later than April 8, 2024. The Court will conduct a phone conference with counsel on April 10, 2024 at 2:30 pm. See Order for details. Signed by Judge Amy Totenberg on 03/25/2024. (amb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
T-MOBILE SOUTH, LLC,
Plaintiff,
v.
CITY OF ROSWELL, GEORGIA,
Defendant.

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CIVIL ACTION NO.
1:10-cv-01464-AT

ORDER
Defendant City of Roswell’s (“City of Roswell” or the “City”) Motion for
Substitution of Expert [Doc. 332] is currently before the Court for resolution.
Plaintiff T-Mobile South, LLC (“T-Mobile”) strongly opposes this motion. (See
Docs. 330, 336). The Court has handled the motion on an emergency, expedited
basis since the City’s counsel first notified the Court on March 4, 2024 of the
circumstances underlying its expert’s unexpected announcement of his resignation
from his role in the case on March 1, 2024. (See Doc. 327).
I.

Background

This case has a complex, long history, including a journey to the United
States Supreme Court as well as other major procedural detours. (See Doc. 287 at
1-20). On June 2, 2023, the Court adopted in substantial part the parties’ proposed
consent order specifying a new schedule for exchanges of updated information and
expert reports, depositions, briefs and a three-day evidentiary hearing to

commence on February 27, 2024. (Doc. 292). The Court later adjusted that hearing
date to March 4-6, 2024. (See January 25, 2024 Docket Entry).
In preparation for the March 2024 hearing, T-Mobile’s expert, Richard
Conroy, submitted a supplemental report and gave his updated deposition on
January 12, 2024. (Doc. 311). He testified that coverage maps and antennae data
were vital information to his analysis. (See, e.g., Doc. 311 at 75-77). After Mr.
Conroy’s deposition, the City of Roswell served supplemental expert reports from
its own expert, Mr. Graiff, relying on new information supplied by T-Mobile and
its expert. (See Docs. 308-310). However, the data that T-Mobile sought to present
through its expert, Mr. Conroy, turned out to be in flux.
The Court recognizes that T-Mobile apparently views this additional
evidence and data as merely “supplemental.” However, the City of Roswell’s
Motion for Continuance presents a very different view. (Doc. 325). The City
represents that T-Mobile did not provide it timely notice, updates, and reports
regarding antennae positioning and data. The City maintains that it was not until
January 9, 2024, three days before the deposition of T-Mobile’s expert, Mr.
Conroy, that it learned through Mr. Conroy’s updated expert report of new data
and information regarding antennae positioning. (Doc. 325 at 2). According to the
City, defense counsel was first provided with preliminary or “rough”
documentation regarding the antennae matrix that Mr. Conroy was referencing at
the time of Mr. Conroy’s January 12, 2024 deposition. (Id.). Then, 12 days after
Mr. Conroy’s deposition, T-Mobile produced its “final” newly revised Antennae
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Matrix, on January 24, 2024. (Id. at 3.) This shifting data required Mr. Graiff to
work on an expedited basis in modifying his evaluation. 1
Then, still more change occurred. On Tuesday, February 27, 2024 — more
than a month after Mr. Conroy’s deposition and less than a week before the
scheduled evidentiary hearing — T-Mobile informed the City of yet another update
to its “Roswell Surrounding Sites Antenna Matrix” due to adjustments made to its
antennae by its engineers on February 5, 2024. (See Doc. 325 at 3-4). Two days
later, on February 29, 2024, “T-Mobile served Mr. Conroy’s coverage map analysis
of the new Antenna Matrix and data,” characterizing this merely as “‘supplemental
exhibits’” to Mr. Conroy’s report. (Id. at 4).
In other words, the ground seems to have kept shifting. These last-minute
disclosures of arguably significant antenna changes prompted the City of Roswell
on March 1, 2024 to move for a continuance of the scheduled hearing. (Doc. 325).
The T-Mobile antenna matrix system had been modified and Mr. Conroy’s report
had been updated again at the last moment – and this left the City and its expert
in an absolute time bind, as the evidentiary hearing was set to begin on March 4,
2024.
The next twist in this saga, which prompted the instant Motion to Substitute,
occurred shortly thereafter. According to the March 4, 2024 Declaration of Angela
Couch, counsel for the City of Roswell, filed at approximately 10:45 a.m. on March

Mr. Graiff’s supplemental report filed February 7, 2024, indicates that he relied in part on new
T-Mobile antenna information served on January 24, 2024. (Doc. 310 at 1).

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4, 2024, the City’s expert witness, Mr. Graiff, age 78, expressed great personal
concern upon learning of the additional updates. (Doc. 327 at 2-3).
According to Ms. Couch’s Declaration, Mr. Graiff had become increasingly
anxious and stressed after his deposition of January 19, 2024. However, he
throughout remained cooperative as her expert witness. However, upon Mr.
Graiff’s learning on Thursday, February 29, 2024 that T-Mobile was now
unexpectedly producing supplemental data and exhibits for the evidentiary
hearing beginning on the following Monday, March 4, 2024, he “became extremely
distressed.” (Id. at 3). He advised Ms. Couch that given the new documents from
T-Mobile, the “work it would require of him was causing too much stress,” and
abruptly ended the call. (Id. at 3). Ms. Couch was later able to explain to Mr. Graiff
that the hearing might go forward on March 4 or it might be continued.
After the Court conferred with counsel on Friday, March 1, 2024 regarding
the new evidentiary issues, it cancelled the March 4-6 hearing and directed counsel
to advise the Court of their availability for a rescheduled hearing in April and also
to confer regarding discovery of the newly disclosed evidence. (See Minute Order
at Doc. 326, granting Defendant’s Motion to Continue, and preceding Notice of
Cancellation). After the parties’ phone conference with the undersigned on March
1, 2024, Ms. Couch was unable to reach Mr. Graiff until that evening.
When he was finally reached by phone, Mr. Graiff “unequivocally stated that
he was finished with this case and that he could no longer take the stress.” (Doc.
327 at 3-4). He then “abruptly terminated the call after flatly stating ‘don’t call me
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anymore.’” (Doc. 327 at 3-4). Mr. Graiff confirmed his decision to withdraw from
his expert role in this case in an email dated March 2, 2024, and described how his
engagement in the case placed such “mental stress” on him and “a toll on his
physical and mental health” in conjunction with his advanced age, so that he could
not continue. (Doc. 327 at 2-4; Doc. 337-1).
Two days later, on Monday, March 4, 2024, Ms. Couch emailed the Court
regarding Mr. Graiff’s resignation and shortly thereafter submitted her Declaration
regarding this sequence of events. She further advised the Court that she had
begun researching and contacting other possible experts for the case. (Doc. 327 at
4). The Court subsequently issued an Order with this direction:
The Court has reviewed the Declaration of Angela C.
Couch, filed today by Defendant City of Roswell,
indicating that the City’s expert witness, Mr. Graiff, has
recently resigned from working on the case. Given the
Declaration, the Court assumes that the City still intends
to present an expert witness in support of its case. The
City is directed to proceed expeditiously in its search for
a replacement expert witness in Georgia and elsewhere,
to comply with the relevant disclosure rules, and to allow
Plaintiff T-Mobile South a sufficient opportunity to
depose the replacement expert witness. The Court will
discuss this matter further with counsel on the previously
scheduled teleconference tomorrow afternoon.
(Doc. 329). The next day, on March 5, 2024, T-Mobile’s counsel filed a preliminary
response to Ms. Couch’s Declaration and a Request for Reconsideration of the
Court’s directive. (Doc. 330). That afternoon, the Court held a conference with
counsel regarding the host of legal and pragmatic issues both parties had raised.
(Doc. 331).
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On March 8, 2024, following Defendant’s filing of a Motion for Substitution
of Expert (Doc. 332), the Court held an additional conference with counsel
regarding the issues raised by both parties and next steps. (Doc. 333). The Court
issued an Order the same day providing an expedited schedule for briefing on
Defendant’s Motion for Substitution, as well as a new June 2024 hearing date in
this matter. (Doc. 334). The parties’ briefing regarding the Defendant’s Motion for
Substitution is now complete.
II.

Legal Standard

The majority of district courts apply Federal Rule of Civil Procedure 16’s
“good cause” standard for assessing a motion to substitute an expert witness.
Leibel v. NCL, (Bahamas) Ltd., 185 F. Supp. 3d 1354, 1355 (S.D. Fla. 2016) (citing
Doctor's Assocs., Inc. v. QIP Holder, LLC, No. 3:06–cv–1710, 2009 WL 5184404,
at *4 (D. Conn. Dec. 23, 2009)); see also Jones v. Barlow, No. 2:19-CV-114-JESNPM, 2021 WL 4819616, at *1 (M.D. Fla. Oct. 15, 2021). 2 The late substitution of
an expert witness obviously can be disruptive, especially when sought close to the
trial of a case. Still, as the Leibel Court discussed: “Courts have consistently allowed
the substitution of expert witnesses when unexpected events prevent the
designated expert from testifying at trial . . . However, courts have been equally
consistent in denying motions to substitute an expert witness when the reason for
the substitution was foreseeable and resulted from the parties’ lack of diligence.”

As discussed in these cases, while some courts use Rule 37’s “substantial justification” standard,
the differences between the standards under Rules 16 and 37 are in practice negligible.
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Leibel, 185 F. Supp. 3d at 1356-57 (summarizing a string of district court cases with
varied results). See also Avant Garde Eng'g & Res. Ltd. v. Nationwide Equip. Co.,
Inc., No. 3:11-CV-525-J-20TEM, 2013 WL 12153534, at *1-2 (M.D. Fla. Sept. 11,
2013) (allowing substitution of plaintiff’s expert witness despite the proximity of
trial where “[p]laintiff insists it is attempting to substitute the expert due to an
unavoidable circumstance—the expert will no longer assist in the case”); PK
Studios, Inc. v. R.L.R. Invs., LLC, No. 2:15-CV-389-FTM-99CM, 2017 WL 495497,
at *2-4 (M.D. Fla. Feb. 7, 2017) (noting defendant’s grounds for objecting to the
substitution of the expert witness — i.e., its contention that plaintiff was merely
seeking to compensate for particular inadequacies of the prior designated expert
witness and its concern as to the time and costs associated with substitution — but
ultimately concluding that the harsh prejudice that plaintiff would suffer without
an expert witness and plaintiff’s promptness in moving for substitution warranted
grant of the motion).
III.

Discussion

In the instant case, T-Mobile vigorously argues that Defendant’s
substitution motion is in effect a last moment strategy to replace Mr. Graiff because
of the City’s belated recognition of the inadequacy of his report, as well as Mr.
Graiff’s concern that he would be professionally discredited. (See Doc. 336). TMobile also suggests that Mr. Graiff’s personal and professional reasons for
withdrawal are a sham, because it has determined through the general counsel for
another telecommunications firm (Verizon) that Mr. Graiff continues to act as an
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expert on another case in a federal court in New Jersey, and that Mr. Graiff was
scheduled to provide a report for a hearing before the zoning appeals committee in
Rhinebeck, New York on March 20, 2024. (Doc. 336 at 4; Doc. 336-1 at 2). The
Court notes that the New Jersey federal case is stayed for mediation and the docket
does not reflect any information regarding the scope of Mr. Graiff’s role in that
case. Further, Mr. Graiff’s appearance (if such occurred) before the Town of
Rhinebeck’s zoning or zoning appeals committee clearly entails a different scope
of demands and preparation than would be necessary in this Court for this matter.
Regardless of whether Mr. Graiff continues as an expert in another federal
case, or whether he actually appeared before the Rhinebeck appeals committee on
March 20, 2024 in his capacity as an advisor to the town government (or prepared
a report for same) does not meaningfully speak to his capacity to continue to
participate in this case under the host of circumstances now presented. In this case,
Mr. Graiff would have been required to productively evaluate an entire new batch
of data and analysis associated with T-Mobile’s recent production of antennae
matrix data on an extremely expedited basis both to assist counsel in examining TMobile’s expert and to testify at length.
T-Mobile also notes other related strategic reasons to support its contention
that the City has allegedly sought to replace Mr. Graiff — and in turn, to suggest or
imply bad faith on the City’s counsel’s part. Upon review of the record and the
parties’ briefs, considering the promptness of defense counsel’s bringing Mr.
Graiff’s concerns for his health and adamant refusal to proceed as an expert to the
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Court’s attention, and the sequence of events that occurred in this case from
January through March 5, 2024, the Court finds as follows:
1. There is no credible evidence indicating bad faith or deviousness on the
part of the City of Roswell or its counsel with respect to its motion to
use Mr. Levitan as a substitute expert in place of Mr. Graiff, given the
sequence of events that have transpired in recent months in this case.
These circumstances include T-Mobile’s late supplemental production
of significant data and new information as to its antennae matrix; Mr.
Graiff’s adamant, emotional refusal as of March 1, 2024 to continue as
an expert witness given the proximity of the scheduled evidentiary
hearing; and Mr. Graiff’s advanced age and apparent medical and/or
psychological incapacity to handle the high level of stress he had
recently endured in connection with his role in this case. 3 The Court
further notes that the challenges and circumstances presented in this
case at this juncture are simply not comparable to the two other matters
that T-Mobile has pointed the Court to that Mr. Graiff has some
involvement in. Additionally, Defense counsel promptly notified the
Court of the issue that had arisen with Mr. Graiff and expeditiously
moved to identify a new expert. 4

The Court notes that Mr. Graiff first started serving as an expert witness for the City of Roswell
in 2017, when he was 72 years old. At that time, reasonably, “the City did not expect it would need
his services past 2018.” (Doc. 327 at 2). Obviously, circumstances have changed greatly since then.

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2. The new antennae tilt information and updated expert materials
produced by T-Mobile in February 2024, when considered in
conjunction with other data reports produced in January 2024, require
assessment by Defendant’s substitute expert. This is so not because Mr.
Levitan will have just joined the case, but instead, because this is newly
provided information and data which requires analysis in conjunction
with T-Mobile’s previously produced data and evidence.
3. The need for technical issues in this matter to be properly presented to
the Court is obvious. The role of an expert is to provide specialized
knowledge and information and thus, to provide the Court with a
proper foundation for assessing the complex issues before it. The Court
finds that Defendant’s Motion for Substitution of its expert under the
combination of circumstances outlined in this Order is reasonable and
supported by good cause. The Court expects both parties’ experts to
illuminate the evidence introduced. Additionally, the Court finds that
granting the Defendant’s substitution motion is necessary to prevent the
harsh prejudice which would result if Defendant was deprived of use of
a substitute expert.
4. Based on the material evidentiary developments and T-Mobile data
disclosures that have occurred in the last few months, the Court will not
confine Defendant’s new expert to giving expert testimony as a virtual
ventriloquist for Mr. Graiff. The Court will require Mr. Levitan to
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produce an expert report and be subject to a deposition, to ensure that
T-Mobile has an adequate opportunity to prepare for the evidentiary
hearing and are not prejudiced by the substitution of counsel.
5. T-Mobile has requested that its attorneys’ fees and expenses be paid in
connection with the work and depositions associated with Defendant’s
switch in experts. The Court reserves review of the merits of this request
to after the conclusion of the evidentiary hearing.
For the foregoing reasons, the Court GRANTS Defendant’s Motion for
Substitution of Expert [Doc. 332] and DENIES Plaintiff’s Request for
Reconsideration. (Doc. 330). The City has previously indicated that Mr. Levitan
expects to have an expert report prepared by April 22, 2024 and will be available
for deposition with reasonable notice anytime thereafter. (Doc. 332 at 2). The
Court DIRECTS the parties’ counsel to confer no later than April 3, 2024
regarding a scheduling timeline for Mr. Levitan’s expert report and deposition and
any other associated matters requiring disclosure and scheduling based on these
developments.
The Court is prepared to proceed with the evidentiary hearing as currently
scheduled to start on June 24, 2024 or alternatively to make room on its calendar
for the evidentiary hearing in the first week of September, or in October, if counsel
find that the June dates have become unworkable. 5 The parties’ proposed schedule

Additionally, if a trial time slot becomes available in August, the Court will promptly notify
counsel.
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should be filed no later than April 8, 2024. The Court will conduct a phone
conference with counsel on April 10, 2024 at 2:30 pm.
IV.

Conclusion

The Court GRANTS Defendant’s Motion for Substitution of Expert [Doc.
332] and DENIES Plaintiff’s Request for Reconsideration. (Doc. 330). The parties
are DIRECTED to meet and confer and submit a proposed schedule as discussed
above no later than April 8, 2024. The Court will conduct a phone conference with
counsel on April 10, 2024 at 2:30 pm.
IT IS SO ORDERED this 25th day of March, 2024.
___________________________
AMY TOTENBERG
UNITED STATES DISTRICT JUDGE

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