Jones v. National Railroad Passenger Corporation

• Court: District Court, N.D. California
• Decided: February 23, 2022
• Docket: 3:15-cv-02726
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AMANDA JONES, Case No. 15-cv-02726-TSH

8 Plaintiff, ORDER GRANTING MOTION TO 9 v. SUBSTITUTE EXPERT WITNESSES

10 NATIONAL RAILROAD PASSENGER Re: Dkt. No. 239 CORPORATION, et al., 11 Defendants. 12 13 I. INTRODUCTION 14 Plaintiff Amanda Jones seeks to substitute two experts after the close of expert discovery. 15 ECF No. 239. Defendants Santa Cruz Metro Transit District and National Railroad Passenger 16 Corporation filed an Opposition (ECF No. 243) and Jones filed a Reply (ECF No. 244). The 17 Court previously vacated the hearing pursuant to Civil Local Rule 7-1(b). ECF No. 242. Having 18 considered the parties’ positions, relevant legal authority, and the record in this case, the Court 19 GRANTS Jones’s motion to substitute an alternative expert for Dr. Michael Freeman and a 20 rebuttal expert witness for Barry Atwood for the following reasons. 21 II. BACKGROUND 22 Jones initiated this action in 2015 after she fell from her mobility device scooter while 23 riding a bus operated by Defendants. She alleged Defendants were negligent and violated the 24 Americans with Disabilities Act and other civil rights laws. Expert discovery closed on April 18, 25 2019. ECF No. 165. 26 On March 7, 2019, Jones disclosed the expert report of Dr. Michael Freeman, a forensic 27 epidemiologist, who provided his opinion as to her medical condition and its effect on her alleged 1 Jones also provided the report of Ned Einstein, a rehabilitation counselor and vocational evaluator, 2 who opined as to Defendants’ alleged failure to comply with ADA requirements. Mot. at 2; 3 Howie Decl., Ex. B. On March 15 she disclosed Barry Atwood, an ADA access consultant, “to 4 rebut any reports, testimony or evidence provided by Defendants’ ADA expert(s).” Mot. at 2; 5 Howie Decl., Ex. C. 6 On October 10, 2019, the Court granted summary judgment in Defendants’ favor as to all 7 remaining claims. ECF No. 197. On May 18, 2021, the Ninth Circuit affirmed the Court’s 8 decision as to Jones’s ADA claims and reversed and remanded the action as to her negligence 9 claim. ECF No. 221. Upon remand, the Court set the case for a jury trial on May 16, 2022. ECF 10 No. 227. 11 On December 22, 2021, the parties filed a stipulation to extend the expert deposition 12 deadline to March 4, 2022, as no depositions were taken before Defendants’ summary judgment 13 motion. ECF No. 233. The Court granted the parties’ request. ECF No. 234. On December 30 14 defense counsel contacted Jones’s counsel to notice expert depositions. Howie Decl. ¶ 10 & Ex. 15 H, ECF No. 243-9. Throughout January and into early February, counsel exchanged emails 16 regarding scheduling expert depositions. Id. ¶ 13 & Ex. K, ECF No. 243-12. On January 7 17 Jones’s counsel indicated that Barry Atwood was deceased and “since there is no ADA claims 18 [sic], I do not intend to call Ned Einstein.” Id., Ex. H. On January 10 Jones served Rule 26(a)(3) 19 disclosures indicating three experts: Michael Freeman (“neurologist to assess Plaintiff’s treatment, 20 damages, and prognosis”), Nora Ostrofe (economist to assesses [sic] assess damages), and John 21 McKinney (vocational evaluator to assess damages). Id. ¶ 12 & Ex. J., ECF No. 243-11. 22 On February 7 Jones’s counsel indicated she wanted to substitute a neurologist for Dr. 23 Freeman, stating “[s]ince it has been 3 years, we have not had contact with most of them to 24 confirm and we are not going to be able to proceed with him.” Id. ¶ 14 & Ex. L, ECF No. 243-13. 25 Defense counsel responded that Defendants did not agree to add a new expert, citing prejudice and 26 lack of diligence on Jones’s part. Id. ¶ 15 & Ex. M, ECF No. 243-14. In a separate email that day, 27 Jones’s counsel indicated that since Barry Atwood was deceased, she would “seek to replace” him 1 Jones filed the present motion on February 8, 2022, seeking leave to substitute alternative 2 experts for Dr. Freeman and Barry Atwood, “who will testify on the same subject matters, using 3 the same data and other materials.” 4 III. LEGAL STANDARD 5 Jones’s motion to substitute expert witnesses is properly analyzed under Federal Rule of 6 Civil Procedure Rule 16, which provides that a pretrial schedule “may be modified only for good 7 cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4); Fujifilm Corp. v. Motorola Mobility 8 LLC, 2014 WL 8094582, at *1 (N.D. Cal. Nov. 19, 2014) (citing cases). “Good cause requires a 9 showing of diligence.” Fujifilm, 2014 WL 8094582, at *1 (citing Johnson v. Mammoth 10 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). “Although the existence or degree of 11 prejudice to the party opposing the modification might supply additional reasons to deny a motion, 12 the focus of the inquiry is upon the moving party’s reasons for seeking the modification. If that 13 party was not diligent, the inquiry should end.” Johnson, 975 F.2d at 609 (internal citation 14 omitted). 15 IV. DISCUSSION 16 Jones argues good cause exists to permit substitute experts because she acted diligently and 17 would be substantially prejudiced if she could not replace the experts she hired several years ago. 18 Mot. at 4-5. She notes the case has been dormant due to the COVID-19 pandemic and her appeal 19 to the Ninth Circuit, and that her counsel, “[a]fter receiving correspondence from counsel for 20 Defendants . . . sought to contact all of the experts whom I had previously engaged in this matter 21 before it went up on appeal.” Id.; Aikens Decl. ¶ 2, ECF No. 239-1. However, she was advised 22 that Dr. Freeman was no longer willing to serve as an expert and that Barry Atwood was deceased, 23 and counsel has endeavored to secure other experts in the interim to address the matters attested to 24 by Dr. Freeman and Barry Atwood. Mot. at 2; Aikens Decl. ¶¶ 3-5, 9. Jones also argues that 25 Defendants will suffer no undue prejudice as a result of the requested substitution because the 26 substitute reports and experts would address the same subject matters, and they would use the 27 same data and other materials used to prepare and support the reports of Freeman and Atwood. 1 their rebuttal experts, if any, as compared to the current schedule.” Id. at 5. 2 Jones also requests “a modest extension of the expert discovery cutoff for three weeks to 3 accommodate the depositions of Plaintiff’s substitute expert and Defendants’ rebuttal expert . . . .” 4 Id. at 3. She states she “will be able to submit a revised report and expert in place of Dr. Freeman 5 within the next approximately seven days,” but “[a]s the ADA expert field is more limited, 6 Plaintiff may need additional time to secure a replacement for Barry Atwood, and understands that 7 Defendants may need additional time to prepare for the same.” Id. at 6. 8 Defendants oppose the motion, arguing that Jones “frames this motion around a need for 9 ‘substitution’ of experts when, in fact, she is seeking to add entirely new (and presumably more 10 advantageous) experts.” Opp’n at 5. They further argue that Jones has not been diligent as the 11 need for these new additional experts could have been anticipated throughout the course of this 12 case.” Id. at 6. Finally, Defendants argue they will be subject to substantial prejudice because the 13 proposed additional experts will require re-working both the liability and damages portions of the 14 case. Id. at 8. They note that Jones now seeks to use a neurologist instead of a forensic 15 epidemiologist, and that since defense counsel has not been provided with the proposed expert’s 16 identity, CV’s, reports or supporting materials, the extent of the disruption and cost is difficult to 17 calculate. Id. at 9. 18 A. Michael Freeman 19 As to Dr. Freeman, the Court finds Jones brought the instant motion with reasonable 20 diligence. According to Jones, her counsel began searching for a new expert witness and 21 conferring with Defendants immediately upon learning that Dr. Freeman would no longer adhere 22 to his agreement with her. Courts have found good cause exists to modify a scheduling order in 23 such situations. See Landes v. Skil Power Tools, 2013 WL 6859837, at *3 (E.D. Cal. Dec. 30, 24 2013) (good cause existed where movant began search for new expert and promptly conferred 25 with opposing counsel upon learning retained expert would no longer adhere to agreement). 26 Courts also routinely permit substitution where the original expert report was timely. See Green v. 27 City and County of San Francisco, 2015 WL 1738025, at *4 (N.D. Cal. Apr.8, 2015) (declining to 1 the original expert”); Rebel Commc’ns, LLC v. Virgin Valley Water Dist., 2015 WL 5430297, at 2 *2 (D. Nev. Sept. 14, 2015) (same); Nat’l R.R. Passenger Corp. v. Expresstrak, LLC, 2006 WL 3 2711533, at *4 (D.D.C. Sept. 21, 2006) (granting leave to submit an expert report after the 4 deadline because the original expert report was timely filed and the need to substitute an expert 5 occurred after complying with the scheduling order). 6 Further, the Court notes “‘[t]he use of the good-cause standard, rather than allowing 7 modification only in cases of manifest injustice as is done for other pretrial orders, indicates that 8 there may be more flexibility in allowing some relief.’” Landes, 2013 WL 6859837, at *3 9 (quoting 6A Wright, Miller & Kane, Federal Practice and Procedure § 1522.2 (3d ed.). “Where 10 ‘[a] scheduling order can have an outcome-determinative effect on the case . . . total inflexibility is 11 undesirable.’” Id. (alterations in original) (quoting Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 12 1254 (10th Cir. 2011)). “‘A scheduling order which results in the exclusion of evidence is . . . a 13 drastic sanction.’” Id. (omission in original) (quoting Rimbert, 647 F.3d at 1254). Finally, the 14 Court must take into consideration the fact that this matter remained dormant while it went up on 15 appeal to the Ninth Circuit, as well as delays caused by the COVID-19 pandemic. As such, it was 16 not until December 22, 2021 that the parties agreed to extend the expert deposition deadline to 17 March 4, 2022. Weighing these factors, the Court determines that good cause exists to reopen 18 discovery for the limited purpose of allowing Jones to substitute an expert witness for Dr. 19 Freeman. 20 At the same time, the Court recognizes that “[t]he purpose of allowing substitution of an 21 expert is to put the movant in the same position it would have been in but for the need to change 22 experts; it is not an opportunity to designate a better expert.” U.S. ex rel. Agate Steel, Inc. v. 23 Jaynes Corp., 2015 WL 1546717, at *2 (D. Nev. Apr. 6, 2015). Thus, “‘[w]hen experts are 24 substituted, the substitute expert’s report and testimony is usually limited to the subject matter and 25 theories already espoused by the former expert.’” Chien Van Bui v. City & Cty. of San Francisco, 26 2018 WL 4959056, at *2 (N.D. Cal. Jan. 31, 2018) (quoting TIC-Indus. Co. of Wyo., Inc. v. 27 Factory Mut. Ins Co., 2012 WL 2830867, at *9 (D. Neb. July 10, 2012); Fujifilm, 2014 WL 1 [the original expert]’s report and may not testify in any manner that is contrary to or inconsistent 2 with [the original expert]’s report. That is, the new expert’s opinions must be ‘substantially 3 similar’ to [the original expert]’s.”) (citations and internal brackets omitted). Thus, to minimize 4 the risk of prejudice to Defendants, the Court will limit the substitute expert’s testimony to the 5 subject matter covered in Freeman’s report, and the substitute “may not testify in any manner that 6 is contrary to or inconsistent” with Freeman’s report. Fujifilm, 2014 WL 8094582, at *2. In other 7 words, the substitute expert’s opinions must be “substantial similar” to Freeman’s opinions for the 8 Court to allow his testimony. See id.; see also Jaynes Corp., 2015 WL 1546717, at *2 (“The 9 Court agrees with American Steel that it is not appropriate in this case to mandate that the new 10 expert ‘rubber-stamp’ the expert report previously provided. Nonetheless, the new expert report 11 may not provide an opinion that is contrary to or inconsistent with Mr. Hafeez’s opinion. While 12 the opinions need not be identical, it is reasonable to limit the new expert to findings that are 13 substantially similar to those presented by Mr. Hafeez. By limiting the new opinion in this 14 manner, any prejudice to Jaynes should be minimized.”) (citations omitted). 15 Accordingly, the motion with respect to Dr. Freeman should be granted. Defendants may 16 renew their objections regarding the scope of the substitute expert’s testimony in an in limine 17 motion closer to trial. 18 B. Barry Atwood 19 “‘Death of an expert witness falls squarely within the category of circumstances that 20 require a late disclosure; the only question regarding justification is whether the party waited too 21 long to notify the Court of the need for a new expert.’” In re Northrop Grumman Corp. ERISA 22 Litig., 2016 WL 6826171, at *2 (C.D. Cal. Apr. 7, 2016) (quoting Morel v. Daimler-Chrysler 23 Corp., 259 F.R.D. 17, 20 (D.P.R. 2009); see also Brooks v. Cty. of San Joaquin, 2012 WL 24 5928416, at *1 (E.D. Cal. Nov. 26, 2012) (“Courts have approved supplemental disclosures where 25 a critical expert witness has died after the deadlines have passed for expert discovery disclosure.”); 26 Miesen v. Henderson, 2022 WL 392931, at *2 (D. Idaho Feb. 9, 2022). For the same reasons 27 discussed above, there is no indication Jones waited too long. She indicates that “[o]nce it became 1 reaching out to other potential experts, contacted counsel for Defendants, and filed this motion 2 immediately.” Mot. at 5; Aikens Decl. ¶¶ 3-9. It is undisputed that Jones could not have sought a 3 substitute for Atwood until her counsel learned he had died. As such, the Court finds good cause 4 exists to permit a substitute witness to testify for Atwood. However, as with Dr. Freeman’s 5 substitute, the Court will limit Atwood’s substitute expert’s testimony to that for which Atwood 6 was previously disclosed – “to rebut any reports, testimony or evidence provided by Defendants’ 7 ADA expert(s).” Mot. at 2; Howie Decl., Ex. C. 8 Finally, in her reply brief, Jones appears to argue for the first time that Atwood’s substitute 9 should also serve as a substitute expert witness in place of Ned Einstein. However, in her motion, 10 Jones seeks “leave to substitute her timely disclosed experts – Dr. Michael Freeman and Barry 11 Atwood – with alternative experts who will testify on the same subject matters, using the same 12 data and other materials.” Mot. at 1. Because she did not seek leave to substitute an expert for 13 Ned Einstein as part of her motion, her request is not properly considered. See Cedano-Viera v. 14 Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003) (“[W]e decline to consider new issues raised for 15 the first time in a reply brief.”); Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 16 672 F.3d 1160, 1166 n.8 (9th Cir. 2012)) (noting that arguments raised for the first time in a reply 17 brief are waived). Further, although Jones states in passing she “had previously sought to use Mr. 18 Atwood’s services in the place of Ned Einstein, until learning that he had passed away,” Mot. at 2, 19 she provides no evidence of this other than a statement in her reply brief that she disclosed a 20 substitute on February 21, 2022, which is after she filed the present motion and well after the close 21 of expert discovery. The only information before the Court regarding Einstein’s testimony is that 22 Jones informed Defendants that “since there is no ADA claims [sic], I do not intend to call Ned 23 Einstein.” Howie Decl., Ex. H. As such, while the Court finds good cause exists to permit a 24 substitute in place of Atwood to testify as a rebuttal expert witness, that substitute may not testify 25 in place of Einstein. 26 V. CONCLUSION 27 For the reasons stated above, the Court GRANTS Jones’s motion to substitute an 1 parties ace ORDERED to meet and confer and file a stipulation or competing deadlines for 2 supplemental expert discovery by March 7, 2022. 3 As Jones did not move for leave to substitute an expert witness for Ned Einstein, that 4 || request made as part of her reply brief is denied without prejudice. However, as noted above, the 5 exclusion of expert evidence that would have been provided by Einstein is considered a drastic 6 sanction and highly disfavored by the Ninth Circuit. As such, if Jones were to move to substitute 7 an expert witness for Einstein, the Court would likely grant the request if she can establish good 8 cause. Accordingly, as part of their March 7 filing, the Court ORDERS the parties to indicate 9 whether they stipulate to a substitute for Ned Einstein. If they do not, Jones shall file a motion to 10 substitute by March 10, 2022. 11 IT IS SO ORDERED. 12

13 || Dated: February 23, 2022 = TAA. |j4— THOMAS S. HIXSON IS United States Magistrate Judge 16

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