Fact and expert discovery has been completed, dispositive motions filed and ruled upon, and pre-trial preparations have begun when the opposing party moves to replace its expert witness because the witness has passed away.  Immediate thoughts go to how this will impact trial preparations and perhaps even the trial date.  To the extent that the deposition of the opposing party went well and limited the scope of the expert’s testimony, there may be significant concerns as to whether the opposing party will now be able to improve its case by designating a new expert.  What are the options for responding to the motion to substitute?

Assuming that the testimony elicited from the expert during his deposition was a “victory,” may a party successfully oppose the motion by seeking to limit the testimony to that provided at deposition and prevent live testimony by a new expert?  Possibly, but not likely.  Though local practice distinguishes between discovery and evidentiary/trial depositions, Indiana discovery rules draw no formal distinction.  In Hagerman Const., Inc. v. Copeland, the Court of Appeals held that a deposition of an expert who was not present at trial was admissible even though one of the parties asserted that it had limited its cross-examination because it was a discovery deposition.[1]  However, the Court of Appeals reached its decision, in part, based upon its determination that the party had indeed extensively cross-examined the expert.  Here, the circumstances are different because, as often reflected in local practice, opposing counsel did not extensively examine his own expert at the deposition.  As such, an Indiana court would most likely find that it would be unduly prejudicial to the opposing party to limit its expert’s testimony to essentially his responses to your examination.

In fact, Indiana courts have permitted parties to substitute experts late in cases when their expert becomes unavailable.  In Indiana Ins. Co. v. Valmont Elec. Inc., the court allowed the plaintiff to substitute a new expert after its expert died.[2]  In Lincoln Nat. Life Ins. Co. v. Transamerica Fin. Life Ins. Co., the court ordered the parties to attempt to reach an agreement on substituting a new expert (the disclosed expert had been sent to prison).[3]  In both cases, though, disputes arose not as to the substitution of the expert, but in the scope of the new expert’s testimony.

In Valmont, the court stated that the new expert “will merely be a substitute for the deceased expert, and will have a similar area of expertise and will express only opinions like those previously held by the deceased expert. In other words, allowing this supplement is NOT an invitation to Plaintiffs to introduce new and different theories in this case.”  Surprisingly, Indiana Insurance designated two new experts and Valmont objected.  The court struck one expert because he failed the Daubert test, and struck portions of the second expert’s opinion on the basis that the second expert presented new theories that were not identified or relied upon by the deceased expert. 

Similarly, in Lincoln Nat., though the parties agreed to the substitution, they could not agree on the scope.  Lincoln maintained that the new expert should be limited to the theories and conclusions previously advanced by the original expert.  The court conducted a review of other cases that analyzed this issue and noted that when substitution is allowed, courts generally limit the scope of the testimony that may be given by the new expert.   “The introduction of a substitute expert does not ipso facto permit the party requesting the substitution to escape from the concessions or admissions of the previous expert.  Rather, the substitute expert’s report and testimony are frequently limited to the subject matter and theories already espoused by the former expert.”[4]   However, the court noted that the substitute expert is not normally required to simply adopt the prior expert’s conclusions verbatim—in effect, doing little more than authenticating and confirming the prior expert’s conclusions. The substitute expert “should have the opportunity to express his opinions in his own language after reviewing the evidence and performing whatever tests prior experts on both sides were allowed to perform.” In the end, the court concluded that Transamerica could designate a new expert, but that the substitute expert must have a “similar area of expertise” as the original expert and would be permitted to conduct his own investigation and reach his own conclusions, as long as he addressed the same subject matter as original expert’s report without meaningful changes.

Overall, if a party provides timely notice of the need to replace a no-longer-available expert and does not attempt to expand the scope of, or fundamentally alter, the opinions expressed by the original expert, it will likely be permitted to have the substitute expert testify at trial.  For purposes of fairness, the other party should be permitted an opportunity to depose the new expert.  However, while limiting the scope of the opinions of the new expert and allowing additional discovery of the new expert minimizes the prejudice to the other party, it is still possible that the moving party may be able to improve its position in the case with a substitute expert.  Perhaps the new expert will be more adept at presenting the opinions and providing support for such opinions, particularly since the substitute expert will have the advantage of reviewing the prior expert’s deposition.   Therefore, even though the scope of the new expert’s opinions will be limited, some prejudice seems inevitable.

[1] Hagerman Const., Inc. v. Copeland, 697 N.E.2d 948 (Ind. Ct. App. 1998), opinion amended on reh’g (Oct. 6, 1998).

[2] Indiana Ins. Co. v. Valmont Elec. Inc., No. TH97-0009-C-T/F, 2001 WL 1823587, at *1 (S.D. Ind. Dec. 27, 2001), amended on reconsideration sub nom. Indiana Ins. Co. ex rel. Pell & Sons v. Valmont Elec., Inc., No. TH97-009-C-T/F, 2003 WL 22244787 (S.D. Ind. July 31, 2003).

[3] Lincoln Nat. Life Ins. Co. v. Transamerica Fin. Life Ins. Co., No. 1:04-CV-396, 2010 WL 3892860, at *1-2 (N.D. Ind. Sept. 30, 2010).

[4] Lincoln Nat., 2010 WL 3892860, at *2 (citing Morel v. Daimler–Chrysler Corp., 259 F.R.D. 17, 22 (D.P.R.2009)).

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Posted on Aug, 22 2018, by Jeffrey B. Fecht