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.
Death of an Expert Witness,
What Happens Next?
Originally Published August 2018
By: Jeffrey B. Fecht, RBE Attorney
F
act 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?
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
Assuming that the testimony indeed extensively cross-examined
elicited from the expert during his the expert. Here, the circumstances
deposition was a “victory,” may a are different because, as often
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Riley Bennett Egloff LLP - October 2018
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
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
1
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
the 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.
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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