Besiso v. Barnes

• Court: District Court, S.D. New York
• Decided: January 6, 2022
• Docket: 1:16-cv-09461
• Status: Unknown

Opinion

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January 5, 2022 IA PACER RONNIE ABRAMS STATES DISTRICT COURT DISCRICT OF NEW YORK

SEELING AND FEIN, LLP Park Avenue, 7 Floor ew York, New York 10017 Barnes Seville Lane CA 91436 CLARK & MULCAHY Maiden Lane, Ste 901 ew York, New York 10038 RE: Myron Powell and Jasmine Besiso v. Matt Barnes and Demarcus Counsins 16-CV-9461 Honorable Judge, Plaintiffs Myron Powell and Jasmine Besiso respectfully request leave to substitute Dr Igor Stiler, their designated trial expert, with another expert. That substitution is necessary because our office was informed that Dr Stiler has passed away. In the short time since the undersigned learned of Dr. Stiler’s passing, Plaintiffs have not yet identified a expert witness, but will do so as soon as possible. To substitute its expert witness, Plaintiffs must show good cause. Nature's Plus A/S v. Nat. Organics, Inc., CV094256ADSAKT, 2014 WL 12964552, at *3 (E.D.N.Y. Oct. 29, 2014) considering a party's request to substitute a new expert after the close of discovery generally apply the

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cause standard of Federal Rule of Civil Procedure 16(b)."). Courts have consistently found good cause exists the need for a substitute expert witness was not foreseeable and was not within the moving party's control. as a result of the expert's health, particularly where the moving party has acted diligently. Jd. See also v. State Farm Fire & Cas. Co., No. 11-10091, 2011 WL 5084981, at *1 (E.D. Mich. Oct. 26, 2011), at * 1 have consistently permitted the substitution of expert witnesses when unforeseen events render the expert witness unavailable to testify at trial."); Baumann v. Am. Family Mut. Ins. Co., 278 F.R.D. 616, (D. Colo. 2012) (finding substitution of expert was "substantially justified" because of the original expert's and unexpected death"); Lincoln Na'l Life Ins. Co. v. Transamerica Fin. Life Ins. Co., No. 04-396, 2010 3892860, at *3 (N.D. Ind. Sept. 30, 2010) (finding good cause to substitute expert witness where original expert arrested for embezzlement and unavailable to testify because he was incarcerated); Jung v. Neschis, No. 01 6993, 2007 WL 5256966, at *4, *16-17 (S.D.N.Y. Oct. 23, 2007) (finding good cause to extend expert deadline where party sought to introduce substitute expert because original expert developed Alzheimer's during course of litigation); Bailey v. Toyota Motor Corp., No. IP 01-1456-C-T/K, 2003 U.S. Dist. LEXIS at *12 n.4 (S.D. Ind. Oct. 31, 2003) (finding good cause to extend deadlines following the death of plaintiffs witness). Here, Plaintiffs learned on January 3, 2022 that Dr. Stiler was not available to testify. We are workings on finding a substitute expert. Dispositive motions have not yet been filed in this case and the partie: not have a trial date. Defendants will not suffer any prejudice from the requested substitution. Plaintiffs or other hand, will be significantly prejudiced if it is not allowed to present live expert testimony on the working: the neurological expert.

As the court found in Nature’s Plus AIS, there is “good cause to extend expert discovery in these unusua circumstances" to allow the substitution of Plaintiff's neurology expert. 2014WL 12964552 at* 3. Plaintiff: respectfully requests that it be allowed to substitute its expert witness as a result of the above-described, unforeseet circumstances, which were out of their control.

Respectfully submitted,

JASON LESNEVEC, ESQ

Application granted. The Court finds that good cause exists to extend the discovery deadline to permit Plaintiffs to find a substitute neurological expert witness. The discovery deadline is hereby extended to March 4, 2022. SO ORDERED.

Hon. Ronnie Abrams 1/6/2022

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