The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge
ORDER GRANTING PLAINTIFF'S RULE 16(b) MOTION TO AMEND SCHEDULING ORDER FOR LEAVE TO SUBSTITUTE DESIGNATED DAMAGE EXPERT [Doc. No. 121]
Plaintiff Joon Park moves to substitute his previously-disclosed damages expert, Gary Lande, with a new damages expert, Chris Fogel. Park states that Mr. Lande has withdrawn from serving as an expert in this case because he does not feel capable of serving as an expert due to his deteriorating memory. Defendant CAS Enterprises (Kreg Tool) objects to the withdrawal because Park's counsel, Paul Adams, knew of Mr. Lande's condition at the time of his expert designation, did not act with due diligence to attempt to replace Mr. Lande, and any designation of a new expert would unfairly prejudice Kreg Tool.
The court has reviewed all the pleadings and the file in this case, and for the following reasons, GRANTS Park's motion to designate a new expert.
The Scheduling Order in this case provided that experts be designated by May 18, 2009. Sched. Ord. ¶ 14. Park did not designate his damages expert, Gary Lande, until July 13, 2009. Adams Decl. ¶ 6. Mr. Lande prepared Park's initial report with Mr. Adams' assistance, and Park timely served it on Kreg Tool on September 4, 2009. Adams Decl. ¶ 7. Mr. Adams subsequently forwarded Kreg Tool's expert report to Mr. Lande, and the two of them discussed preparing a rebuttal report. Adams Decl. ¶ 8. Mr. Adams says that at that time, Mr. Lande told him that "he was having a difficult time concentrating on the report and gathering his thoughts for a rebuttal because he was having difficulty recalling what he had read. He stated that he was worried about his memory and his ability to serve as a competent expert witness." Id.
After Park served the rebuttal report on October 2, 2009, Mr. Lande called Mr. Adams and asked for additional documents and case law. Adams Decl. ¶ 10. As Mr. Adams explained his thoughts on Kreg Tool's expert report, Mr. Lande "stated that he was confused." Id. Then, "[o]n several subsequent occasions, [Mr. Adams] sent Mr. Lande additional materials that [Adams] had earlier sent in which he said he did not receive or had misplaced the documents." Id.
On the morning of Sunday, October 18, 2009, Mr. Lande called Mr. Adams and told him that after reviewing the documents again, he did not believe he was capable to testify at the October 22 deposition and that he should withdraw from serving as an expert in light of the condition of his memory. Adams Decl. ¶ 11. Mr. Lande called Mr. Adams again later that day, and told him that several years earlier "he had been informally diagnosed with Alzheimer's... but that he now believed that his memory was deteriorating rapidly." Id. He told Mr. Adams he did not believe he could properly testify.
Mr. Adams then sent an email to Frank Farrell, one of Kreg Tool's attorneys, to tell him that the October 22 deposition would have to be cancelled and that Mr. Lande was considering withdrawing from the case. Id.
Mr. Adams and Mr. Farrell spoke the next day. Mr. Farrell asked whether Mr. Adams knew that at the time he engaged Mr. Lande that he had a deteriorating memory condition. Adams Decl. ¶ 12. Mr. Adams told Mr. Farrell that he knew early on that Mr. Lande had "memory problems," but Mr. Adams attributed that condition to Mr. Lande's age. Id. Mr. Adams told Mr. Farrell he would let him know by October 21 whether he intended to proceed with Mr. Lande as Park's expert. Adams Decl. Ex. 1.
Upon learning of Mr. Lande's potential withdrawal, Kreg Tool asked this court to order Mr. Lande to appear for his deposition so that Kreg Tool could conduct a limited inquiry regarding his medical condition and determine to what extent that condition precludes him from continuing to serve as an expert in this case. After holding a telephonic conference with the parties' counsel, the court ordered that the deposition go forward. It also ordered the parties to brief Park's motion to withdraw and redesignate an expert.*fn1 In conjunction with the motion, the court ordered:
At a minimum, Mr. Lande shall provide a letter from his treating physician stating the nature of his medical condition and if, in that doctor's opinion, Mr. Lande can serve as an expert witness. Additional medical records may be produced in conjunction with the motion to substitute the expert, subject to the Protective Order already in place in this case.
Kreg Tool deposed Mr. Lande on October 22, 2009. The transcript of that deposition has been filed under seal. Park, in his moving papers, says the only relevant question ...