Evans v. Den Hartog

Filing 50

ORDER denying 44 Motion for Leave to Substitute Expert Witness. Signed by U.S. District Judge Karen E. Schreier on 11/22/17. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHERYL EVANS,

5:16-CV-05060-KES
Plaintiff,

vs.
BRYAN DEN HARTOG,

ORDER DENYING MOTION FOR
LEAVE TO SUBSTITUTE EXPERT
WITNESS

Defendant.

Plaintiff, Cheryl Evans, filed this lawsuit against defendant, Bryan Den
Hartog, alleging medical negligence based on patient abandonment. Docket 1.
The trial is currently scheduled to begin on Tuesday, January 9, 2018. Docket
43. On November 8, 2017, defendant moved for leave to substitute an expert
witness (Docket 44), and plaintiff objects to the motion. Docket 48.
BACKGROUND
On August 11, 2016, this court entered a scheduling order requiring
defendant to designate experts and disclose all expert reports on or before
January 9, 2017. Docket 11. And on February 7, 2017, this court entered an
amended scheduling order requiring that all discovery, including expert
discovery, be completed on or before April 6, 2017. Docket 18.
Defendant designated Dr. Gannon as an expert witness and provided
plaintiff with an expert disclosure on January 19, 2017. Docket 46 ¶ 3. On

September 8, 2017, and after consultation with both counsel, this court set
the trial date for January 9, 2018. Docket 43. After this court set the trial
date, defendant learned that Dr. Gannon would not be available to testify at
trial. Docket 46 ¶ 7. On September 27 or 28, 2017, defendant informed
plaintiff’s counsel, in person, that Dr. Gannon would be unavailable to testify
at trial and that defendant would substitute an expert. Id. ¶ 8. On November
3, 2017, defendant wrote to plaintiff’s counsel requesting permission to
substitute an expert witness. Id. ¶ 10. On the same day, plaintiff’s counsel
objected to substituting Dr. Gannon. Id. ¶ 14. Defendant filed a motion to
substitute his expert witness on November 8, 2017. Docket 44.
DISCUSSION
Under Federal Rule of Civil Procedure 16(b)(4), ‘[a] schedule may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P.
16(b)(4). “The primary measure of Rule 16’s ‘good cause’ standard is the
moving party’s diligence in attempting to meet the case management order’s
requirements.” Bradford v. Dana Corp., 249 F.3d 807, 809 (8th Cir. 2001)
(citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.
1992)). “[T]he existence or degree of prejudice to the party opposing the
modification” may also affect the court’s decision. Johnson, 975 F.2d at 609.
Under Rule 6 of the Federal Rules of Civil Procedure, defendant must
show excusable neglect for an extension of time. Fed. R. Civ. P. 6(b)(1)
Excusable neglect is a four-part test that requires: “(1) the possibility of
prejudice to [plaintiff]; (2) the length of [defendant’s] delay and the possible
2

impact of that delay on judicial proceedings; (3) [defendant’s] reasons for
delay, including whether the delay was within [his] reasonable control; and (4)
whether [defendant] acted in good faith.” Chorosevic v. MetLife Choices, 600
F.3d 934, 946 (8th Cir. 2010).
Defendant contends that there is good cause to substitute his expert
witness and relies on the decision in Pierce v. Fremar, LLC, Civ. No. 09-4066KES, 2010 WL 5172883 (D.S.D. Dec 14, 2010) to support his argument.
Docket 45 at 2-3. In Pierce, plaintiff designated her expert witness within the
scheduled time frame. Pierce, 2010 WL 5172883, at *1. Shortly thereafter, the
litigation including discovery was stayed because plaintiff filed for
bankruptcy. Id. Subsequently, the bankruptcy trustee was substituted for the
original plaintiff and the stay was lifted. Id. A new scheduling order was
entered and plaintiff’s expert’s deposition was scheduled for August 10, 2010.
Id. Shortly before the expert’s deposition was to commence, the expert
informed the plaintiff that he was unwilling to testify as an expert witness
because he had a conflict of interest as a creditor in the bankruptcy estate
who could potentially recover on his bankruptcy claim if the litigation was
successful and he was concerned about his business suffering if he testified
against the defendant. Id. at *2.
On the day of the scheduled deposition, the plaintiff informed defendant
that the expert no longer wished to be an expert witness and the deposition
was postponed. Id. Plaintiff sought a stipulation from defendants to substitute
experts on August 12, 2010, but defendant would not agree. Plaintiff filed a
3

motion to substitute on August 17, 2010, and included the name and
credentials of the proposed new expert. Id. When the motion was filed, no trial
date had been scheduled. The court found that there was good cause to
substitute experts because the original expert refused to serve as an expert
witness and plaintiff gave defendants prompt notice of the substitution. Id.
Additionally, plaintiff showed excusable neglect because defendants made no
showing of prejudice since no trial date had been scheduled and plaintiff
acted promptly upon learning of the expert’s unwillingness to testify. Id.
Here, the deadline to designate experts has passed and a trial date in
early January is scheduled. Defendant learned around September 27 or 28,
2017, that Dr. Gannon was unavailable to testify at trial but did not seek a
stipulation from plaintiff until November 3, 2017. While defendant argues that
he told plaintiff’s counsel about Dr. Gannon and the need for a substitution in
September, he did not formally seek a stipulation and disclose the identity of
the replacement until over a month later, which was just two months before
the trial date. Also, Dr. Gannon is not refusing to serve as an expert witness,
as the expert in Pierce did, he is just unavailable to testify in person at trial.
Further, the court consulted with the parties prior to setting a trial date, so
defendant had the opportunity to consult with his expert regarding his
expert’s availability to testify in person at trial before a trial date was
scheduled. Thus, the court finds that defendant has not shown good cause to
allow leave to substitute his expert.

4

CONCLUSION
In accordance with the above opinion, it is
ORDERED that defendant’s motion (Docket 44) is denied.
DATED November 22, 2017.
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

5