ORDER DENYING PLAINTIFF'S MOTION TO RECONSIDER ORDER DENYING PLAINTIFF'S MOTION TO SUBSTITUTE EXPERT WITNESS
[ECF NO. 121]
MITCHELL D. DEMBIN, District Judge.
On June 23, 2016, the Court denied Plaintiff's Motion to Substitute an Expert Witness. (ECF No. 120). Plaintiff sought permission to substitute a different expert for Dr. Katherine Mandeville because Dr. Mandeville had not communicated directly with counsel for Plaintiff for a couple of months and had not made herself available for deposition within the time allowed by the operative Scheduling Order. The Court denied the motion finding that although there were communication issues between counsel for Plaintiff and Dr. Mandeville, there was no evidence suggesting that Dr. Mandeville was no longer available to serve as Plaintiff's expert. (Id.). With the exception of the deposition of Dr. Mandeville, all discovery, including expert discovery, has been completed. The Court extended the Scheduling Order to allow for the deposition of Dr. Mandeville no later than July 29, 2016. (Id.).
The instant motion was filed on July 1, 2016. (ECF No. 121). In response to an email from Plaintiff's counsel, apparently sent on June 24, the day after the Court's Order was entered, Dr. Mandeville signed an undated letter asserting that she was no longer able to act as an expert witness in this case due to "pressing time commitments." See Declaration of Mitchel J. Olsen, Exhibits 1 and 2 (ECF No. 121-1 Exhs. 1, 2). Plaintiff asserts that this change in circumstance justifies reconsideration and justifies granting their motion to substitute an expert for Dr. Mandeville. Defendants have opposed asserting that the changed circumstances appear to have been manufactured by Plaintiff, pressing time commitments are insufficient to find Dr. Mandeville "unavailable," and that Defendants would be prejudiced by a change in experts at this time. (ECF No. 124).
Changed circumstances may be sufficient to allow for reconsideration of a prior order. See CivLR 7.1(i)(1)(3). The question before the Court is whether Dr. Mandeville's attempt to withdraw as an expert in this case due to "pressing time commitments" is sufficient to overcome the substantial prejudice to Defendants and the impact of the change in the orderly procession of this case to trial.
The timing and circumstances of Dr. Mandeville's "withdrawal" are cause for concern. As the Court noted in its earlier Order, communications from Dr. Mandeville submitted in support of Plaintiff's initial Motion reflected that Dr. Mandeville would be available for deposition after July 17, 2016. Accordingly, the Court amended the Scheduling Order to allow her deposition to be taken no later than July 29, 2016. See Order of June 23, 2016 at 2 (ECF No. 120 at 2). On June 24, 2016, counsel for Plaintiff emailed Dr. Mandeville regarding the Court's Order. (ECF No. 121-1, Exh. 1). On June 29, 2016, Dr. Mandeville was served with a deposition subpoena in this case. See Defendant's Memorandum in Opposition to Plaintiff's Motion to Reconsider at 2 (ECF No. 124 at 2).
The email sent by counsel for Plaintiff to Dr. Mandeville on June 24 which resulted in Dr. Mandeville's withdrawal letter, whatever its intent, strongly suggests counsel's displeasure with Dr. Mandeville and appears to encourage her to withdraw. Surely, Plaintiff's counsel has some buyer's remorse in the retention of Dr. Mandeville. Nevertheless, the Court finds that her attempt to withdraw due to undisclosed pressing time commitments is insufficient to overcome the prejudice to the Defendants and the Court's interest, under Fed. R. Civ. P. 1, in the speedy and inexpensive determination of the case.
Other cases in which an expert has been deemed unavailable provide circumstances far more exigent than the mere press of business. See, e.g., McDowell v. Evey, No. CIV. 95-846-FR, 2000 WL 1371400, at *2-3 (D. Ore. Aug. 31, 2000) (retirement); TIC-The Indus. Co. Wyoming v. Factory Mut. Ins. Co., No. 4:10CV3153, 2012 WL 2830867, at *8 (D. Neb. July 10, 2012) (ethical conflict); Park v. CAS Enters., Inc., Civil No. 08cv385 DMS (NLS), 2009 WL 4057888, at *3 (S.D. Cal. Nov. 19, 2009) (unilateral withdrawal by expert due to severe memory issues). The Court finds that Dr. Mandeville's unsupported assertion of "pressing time commitments" does not render her "unavailable" within the meaning of the law such that she must be replaced.
Defendants contend, as they did initially, that they will be unfairly prejudiced if substitution of a new expert is permitted at this time. The new, as yet unidentified expert will not be relying on Dr. Mandeville's report but will prepare a new report. This will prejudice defendants, they argue, because the new report will be made with the benefit of reviewing the reports of Defendants' experts and may necessitate new rebuttal reports and another round of depositions. This in turn will impact the Court's scheduling of this case for pretrial disclosures and conference and, ultimately, trial. The Court agrees with Defendants that good cause has not been shown.
In a letter to counsel for Defendants, dated July 1, 2016, Dr. Mandeville suggests that her deposition subpoena is "void" because she has withdrawn from the case and, in any event, although served at her current place of business, is void because she will be residing in another state on the date scheduled for her deposition. See Exh. 13 to Supplemental Declaration of Gabriel Benrudi (ECF No. 125). The Court finds Dr. Mandeville's withdrawal as an expert to be of no effect and her assertion of the invalidity of the subpoena legally incorrect. See Fed. R. Civ. P. 45. Accordingly, Dr. Mandeville must appear for her deposition as required by the subpoena or as otherwise agreed with counsel for Defendants or as otherwise ordered by a court of competent jurisdiction.
CONCLUSION AND ORDER
Plaintiff's Motion to Reconsider is DENIED. Dr. Mandeville must appear for her deposition as required by the subpoena or as otherwise agreed with counsel for Defendants or as otherwise ordered by a court of competent jurisdiction. Counsel for Plaintiff is ORDERED provide a copy of this Order promptly to Dr. Mandeville.
IT IS SO ORDERED.
