Can an Expert be Replaced if He’s Unavailable for Trial?

Defendants in a recent federal California case filed an administrative motion to modify the court’s case management to let them supplement their expert disclosures by replacing Dr. A, previously disclosed as a forensic pathologist expert, with another forensic pathologist expert because he wasn’t available for trial. The plaintiffs said that they would stipulate to the replacement of Dr. A as long as Defendants’ replacement expert didn’t provide opinions different from or in addition to those that were offered by Dr. A.Two Forensic Pathology Experts Having Meeting In Hospital Reception Area

United States Magistrate Judge Laurel Beeler explained in her opinion that the parties provided Dr. A’s original expert report and Dr. B’s new proposed expert report. Plaintiffs also provided excerpts of Dr. A’s deposition testimony.

Judge Beeler found that Dr. B’s proposed expert report offered opinions that were materially different from those offered by Dr. A. For example, Dr. A testified that he had no way to determine how far the victim was from the police officers’ weapons when he was shot. But Dr. B’s proposed report stated definitively that the victim was no more than six feet away from the police officers’ weapons when he was shot. The judge cited another example where Dr. A testified that he couldn’t definitively tell the position of the victim’s body was in when he was shot or whether he was bent over or not. By contrast, Dr. B’s proposed report opined that the first bullet caused the victim to fall partially backwards and that the second bullet paralyzed his legs. His upper torso was angulated forward about 45 degrees when he was hit, Dr. B stated. These opinions weren’t found in Dr. A’s report.

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