United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey Chief United States District Judge
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
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.
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
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).
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).
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.
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).
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.”).
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.