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Shipp v. Arnold

United States District Court, W.D. Arkansas, Texarkana Division

August 27, 2019

CRAIG SHIPP PLAINTIFF
v.
STEVEN ARNOLD; DR. MIMO LEMDJA; LENORA TURNER; KINDALL SMITH; and CORRECT CARE SOLUTIONS, LLC DEFENDANTS

          ORDER

          Susan O. Hickey Chief United States District Judge

         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 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 ...


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