Haney et al v. Kavoukjian et al

Filing 123

ORDER AND OPINION: Defendants' motion for leave to identify and designate Nathan Crystal, Esq. as their new legal ethics and professional responsibility expert and supplement expert witness disclosure with a report from N athan Crystal is GRANTED. (Dkt. No. 118). Defendants are instructed to submit an expert witness report to Plaintiffs by June 6, 2022. Defendants shall make Nathan Crystal available for deposition immediately thereafter. If necessary, Plaintiffs may submit an expert rebuttal report by June 27, 2022. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 5/5/22.(ltap, ) Modified document type on 5/6/2022 (sshe, ).

2:19-cv-02098-RMG

Date Filed 05/05/22

Entry Number 123

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Katherine St. John Haney and James Byrnes,)
as Personal Representatives of the Estate
)
of Muriel T. Farr
)
)
Plaintiffs,
)
)
v.
)
)
Michael E. Kavoukjian, Esq.,
)
and White & Case, LLP
)
)
Defendants.
)
___________________________________ )

Civil Action No. 2:19-cv-2098-RMG

ORDER AND OPINION

Before the Court is Defendants’ motion to substitute Nathan Crystal, Esq. for John P.
Freeman, Esq., as Defendants’ new legal ethics and professional responsibility expert. (Dkt. No.
118). The motion is ripe for the Court’s review.
Defendants completed prior discovery and expert witness designations in a timely manner.
The discovery deadline was November 30, 2020. (Dkt. No. 58). The deadline to designate expert
witnesses was July 15, 2020. (Dkt. Nos. 30; 37). Defendants timely designated John Freeman,
Esq., Professor Emeritus at the University of South Carolina Law School, as its ethics and
professional liability expert. (Dkt. No. 37). Defendants timely identified W. Steven Johnson, Esq.
as its trusts and estates expert. (Id.). Professor Freeman was retained to offer expert opinions
concerning legal ethics, duties, and professional responsibility related to Defendants’ actions in
the underlying probate action that gave rise to the present lawsuit.
Defendants now move to substitute Nathan Crystal for Professor Freeman as its ethics and
professional liability expert and to supplement the expert witness disclosure with a report from
Nathan Crystal. (Dkt. No. 118 at 2). Defendants state that Professor Freeman passed away in

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October 2021. (Id.). Defendants indicate that Nathan Crystal is “a distinguished professor of
professional responsibility and ethics” and his testimony will “cover the same general subject
matter as Professor Freeman’s testimony.” (Id. at 4).
Plaintiffs filed a response in opposition to Defendants’ motion. (Dkt. No. 120). Plaintiffs have
“no specific objection to Nathan M. Crystal, Esq. serving as an expert for Defendants.” (Id. at 12). Plaintiffs acknowledge that “generally Defendants should be permitted to substitute an expert
in place of [Professor] Freeman . . . who recently passed away.” (Id. at 2). Plaintiffs’ opposition
also lodges a series of objections to Nathan Crystal’s purported opinion as offering cumulative
expert opinion on whether Defendants met their fiduciary duties to their former client’s estate.
(Dkt. No. 120 at 2-6). Plaintiffs ask the Court to enter an Order instructing Defendants to choose
between W. Stephen Johnson and Nathan Crystal to provide testimony on matters of law
concerning breach of fiduciary duty. (Id. at 6). Plaintiffs’ objections regarding cumulative
testimony are outside the scope of matters presented in Defendants’ original motion. In addition,
the issue is not yet ripe as the Court has not ruled on Defendants’ motion to introduce him as an
expert and Nathan Crystal has not yet submitted an expert report or been deposed in this case.
(Dkt. No. 122 at 7). Therefore, the Court rejects Plaintiffs’ objections regarding cumulative
testimony.
Federal Rule of Civil Procedure 26(a)(2) requires parties to disclose the identity of any expert
witnesses and their expert witness reports. Fed. R. Civ. P. 26(a)(2). The purpose of Rule 26(a) is
to promote full disclosure of the facts and to prevent trial by ambush. Morel v. Daimler-Chrysler
Corp., 259 F.R.D. 17, 20 (D.P.R. 2009). The District Court has discretion to admit tardily
proffered expert evidence without sanctions upon a finding of substantial justification or
harmlessness. Michelone v. Desmarais, 25 F. App’x 155, 158-159 (4th Cir. 2002) (unpublished);

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Fed. R. Civ. P. 37(c)(1). Death of an expert witness falls squarely within the category of
circumstances that substantially justifies replacement, where the only question regarding
justification is whether the party waited too long to notify the court of the need for a new expert.
Morel, 259 F.R.D. at 21; Baumann v. Am. Family Mut. Ins., 278 F.R.D. 614, 615-16 (D. Colo.
2012); Ferrara & DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 8, 10-11 (1st Cir. 2001).
A late disclosure is harmless if it occurs long before trial and is likely subject to correction without
materially prejudicing the opposing party. Morel, 259 F.R.D. at 21. Whether a late disclosure is
prejudicial depends on whether the expert testimony was unexpected and left the other party
without adequate opportunity to prepare for it. Michelone, 25 F. App’x at 158-159.
Upon a review of the parties’ briefing, the Court finds that the late disclosure is substantially
justified. Defendants indicate that Professor Freeman was a critical expert witness who died in
October 2021 after the deadlines for discovery had passed. Although Defendants waited several
months after Professor Freeman’s death to file the instant motion, this case not been scheduled for
trial. Defendants state that due to the complex subject matter of this case it took significant time
to find another expert on the matter, obtain, and review the expert opinion. (Dkt. No. 118 at 4).
The death of Professor Freeman provides Defendants with a substantial justification to obtain a
new expert past the deadline.
The Court finds that in these circumstances, the late disclosure is harmless because Plaintiffs
will not be materially prejudiced. Plaintiffs have notice of the late disclosure. Defendants indicate
that Nathan Crystal will testify on substantially the same matters as Professor Freeman. (Dkt. No.
118 at 4). Plaintiffs’ motion in opposition acknowledges and agrees that Defendants should be
able to substitute Nathan Crystal as their expert. (Dkt. No. 120). Plaintiffs object to Nathan
Crystal’s purported testimony on the ground that it is cumulative. (Dkt. No. 120). Therefore,

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Nathan Crystal’s expert opinions would not surprise Plaintiffs with a new subject matter or theory
of liability. Importantly, this case has not been set for trial and Plaintiffs will have time to
formulate a response and prepare cross-examination of Nathan Crystal. Morel, 259 F.R.D. at 21
(finding no prejudice where Plaintiffs had ample time to formulate a response and prepare crossexamination as no trial date had been set); Bauman, 278 F.R.D. at 617 (allowing Plaintiff to replace
her expert thirty days prior to trial and rejecting Defendant’s argument that it would be prejudicial);
Ferrara, 240 F.3d at 9-10 (upholding replacement of expert under similar circumstances ninety
days before trial and finding no prejudice to opposing party). Defendants replacing Nathan Crystal
as its professional responsibility and ethics expert is harmless and will not prejudice Plaintiffs.
IV. Conclusion
For the foregoing reasons, Defendants’ motion for leave to identify and designate Nathan
Crystal, Esq. as their new legal ethics and professional responsibility expert and supplement expert
witness disclosure with a report from Nathan Crystal is GRANTED. (Dkt. No. 118). Defendants
are instructed to submit an expert witness report to Plaintiffs by June 6, 2022. Defendants shall
make Nathan Crystal available for deposition immediately thereafter. If necessary, Plaintiffs may
submit an expert rebuttal report by June 27, 2022.
AND IT IS SO ORDERED.

s/ Richard M. Gergel
Richard M. Gergel
United States District Judge
May 5, 2022
Charleston, South Carolina

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