United States District Court, S.D. Illinois
J.F., a minor by BEATRICE SIFUENTES individually as next friend of J.F., Plaintiff,
ABBOTT LABORATORIES, INC., Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL United States District Judge.
before the Court is Defendant's Motion to Substitute Dr.
L. James Willmore (Doc. 578).
Willmore has been Defendant's designated expert
neurologist in the Sifuentescase since November
2014. On February 16, 2017, the Court selected
Sifuentes from the pool of previously worked up
Depakote cases for the March 27 trial slot. (Doc. 564, at p.
1). Dr. Willmore advised Abbott on February 17, 2017,
“that he was suffering from several medical conditions
requiring medications, and he was unsure about his ability to
testify at trial.” (Doc. 578, at p. 2). Counsel met
with Dr. Willmore on February 23, 2017, and learned that his
condition “necessitate[d] treatment that will preclude
his ability to testify at trial.” (Doc. 578, at p. 3).
Willmore requested that the details of his illness not be
included in the Motion to Substitute. (Doc. 578, at p. 2 n1).
But at the recent status conference, counsel for Abbott
elaborated as follows:
Dr. Willmore….is in his 70s and he recently has had a
series of medical episodes. And his present problem relates
to some issues with his immune system and some difficulties
with that, and he is on a rather stringent dose of medication
now that causes him issues with fatigue and concentration and
reduces his capacity for things like this. And depending upon
how this goes over the next few weeks, they may have to go
to-with later in March. May have to go, as I understand it,
to an even more stringent, I guess is the word I would use,
type of medication or stronger type of medication.
(Case No. 12-CV-52, Doc. 834, at p. 5).
the Court accepted counsel's representations concerning
the health of Dr. Willmore, maintaining the March 27 trial
date remained a top priority. Accordingly, counsel was
instructed to provide the direct contact information of Dr.
Willmore so the Court could explore directly with the Doctor
his ability to testify, and whether any accommodations could
be made to facilitate his participation in the March 27
trial. (Case No. 14-CV-847, Doc. 579). As the issue did not
concern the merits of the case and to protect the privacy of
Dr. Willmore, the Court conducted the inquiry in
March 2, 2017, the Court consulted with Dr. Willmore
concerning his health concerns and status as a potential
witness in the March trial. Without going into specifics,
both Dr. Willmore's condition and the medication he is on
to treat the illness impact his cognitive function and
ability to testify at trial or at a deposition. Dr. Willmore
also expressed that the prognosis for his return to full
health is uncertain. The Court is satisfied that given Dr.
Willmore's current condition, no accommodation could be
made that would allow him to testify at trial or to sit for a
Federal Rules of Civil Procedure do not expressly delineate
the process or standard a court should utilize when faced
with a motion to substitute an expert. When faced with such a
motion, district courts in this Circuit take one of two
approaches. Certain courts view the motion as a request to
reopen the deadlines imposed in the scheduling order under
Federal Rule of Civil Procedure 16(b)(4). See e.g.,
Lincoln Nat. Life Ins. Co. v. Transamerica Fin. Life Ins.
Co., No. 1:04-CV-396, 2010 WL 3892860, at *2 (N.D. Ind.
Sept. 30, 2010). While other courts utilize Rule 26(a)(2)(D)
and 37(c)(1) to analyze whether the replacement expert should
be excluded as a discovery violation. See e.g., Assaf v.
Cottrell, Inc., No. 10 CV 0085, 2012 WL 245196, at *2
(N.D. Ill. Jan. 26, 2012).
analysis under Rule 16(b)(4) requires the Court to assess
whether the party's request demonstrates good cause. When
considering whether good cause exists, “the primary
consideration for district courts is the diligence of the
party seeking amendment.” Alioto v. Town of
Lisbon, 651 F.3d 715, 720 (7th Cir. 2011). Rule 37(c)(1)
requires the Court to assess whether there is a substantial
justification or harm associated with the failure to
disclosure the expert. Fed.R.Civ.P. 37(c)(1); Tribble v.
Evangelides, 670 F.3d 753, 758 (7th Cir. 2012), as
amended (Feb. 2, 2012). In making a Rule 37(c)(1)
determination, the Court is to consider: (1) the prejudice or
surprise in fact of the party against whom the excluded
witnesses would have testified; (2) the ability of that party
to cure the prejudice; (3) the extent to which waiver of the
rule against calling unlisted witnesses would disrupt the
orderly and efficient trial of the case or of other cases in
the court; (4) bad faith or willfulness in failing to comply
with the court's order. Spray-Rite Service Corp. v.
Monsanto Co, 684 F.2d 1226, 1245 (7th Cir. 1982).
faced with a similar motion to substitute an expert witness
have found the two standards “coexistent.”
See e.g. Fid. Nat. Fin., Inc. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, Pa, 308 F.R.D. 649, 652 (S.D.
Cal. 2015); but see Carlson v. Fewins, No.
1:08-CV-991, 2016 WL 7971764, at *1 (W.D. Mich. Oct. 19,
2016) (finding different burdens imposed by the two rules).
This Court need not determine whether the distinctions
between Rule 16(b)(4) and Rule 37(c)(1) are ones of semantics
or substance, because both the good cause and substantial
justification standards are met by the facts before the
Abbott's key experts became afflicted with an illness
that impacts his ability to accurate and effectively testify,
and the prognosis for his return to full health is at best
uncertain. This involuntary unavailability was not created or
influenced by Abbott's actions, and it cannot be cured
through other means available to the Court. Also, within days
of learning of his change in status, counsel notified the
Court. Aside from the untimely and unforeseen death of an
expert witness, the circumstances regarding Dr. Willmore
present the near veritable definition of a substantial
justification or good cause.
unavailability of Dr. Willmore does not, however, grant
Abbott carte blanche to generate new theories after
several years of litigation. The substitute expert will be
required to have a similar area of expertise, and will be
required to provide a report and testimony that adheres to
the subjects and theories covered by Dr. Willmore. With the
limitations discussed above, Defendant's Motion to
Substitute Dr. Willmore (Doc. 578) is
at the February 27 status conference, counsel indicated that
Dr. Willmore was also the expert neurologist in the
Pyszkowski case. (Case No. 12-CV-52, Doc. 834, at p.
6). As the Pyszkowski case is not currently set for