Can an Expert Witness be Replaced if They’re Unavailable for Trial?

You’ve spent months or, more likely, years building your case. You’ve gone through discovery and motion practice. You’ve retained your expert – best in the field. You have a brilliant expert report undeniably proving your side of the case, and your witness handled the deposition with ease. But then, on the eve of trial, something unexpected happens. Your witness is injured or becomes ill, they pass away, or an unavoidable scheduling conflict arises that prevents them from testifying at trial. What happens now? Does their report get tossed out? Is your case ruined through no fault of your own? Read on for a discussion of what happens when an expert is unavailable for trial, and call a qualified medical expert for assistance with a legal matter.

Timing Matters

Replacing an expert witness early on in the process is much easier, and it becomes progressively more difficult as the trial approaches. Even if your expert has issued a report and been deposed, if an unexpected illness or life event prevents the expert from being able to testify at trial, a court is likely to allow a party to introduce and qualify a new expert. As trial approaches, however, the process becomes more difficult.

In federal court, the judge will set a pretrial schedule pursuant to Federal Rule of Civil Procedure (FRCP) 16. The pretrial schedule includes deadlines for parties to disclose their expert witnesses. Under FRCP 16(b), deadlines set in the pretrial order may be modified only for good cause and with the judge’s consent. If your expert drops out after the deadline, you must obtain the court’s permission to replace them with a new expert. Having a replacement expert ready to go, especially if that expert has equivalent qualifications to your previous expert and they are prepared to testify to substantially the same opinion, is more likely to convince the court to allow the replacement expert to testify. Typically, courts will only allow expert substitution after the deadline if the event causing the witness to be unavailable is beyond the control of the party or their counsel.

Is the New Expert’s Testimony the Same?

As the date for the trial approaches, and after the trial has already begun, introducing a new expert becomes much more difficult. Typically, the court will permit the new expert only if their testimony will be substantially the same as the expert they are replacing–that is, their testimony must not differ from, or add anything to, the testimony already promised from your previous expert. You are less likely to face opposition from the opposing party, as well, if your expert is unavailable due to unexpected life events and your new expert will offer essentially the same testimony.

Your new expert must also be similarly qualified. If your new expert lacks the qualifications of your prior expert, you could face an additional battle just to have the witness qualified to testify as an expert. If they have a similar educational and professional background, as well as other relevant qualifying factors, and they will testify to the same points, then the court (and/or the opposing party) is more likely to permit the substitution.

Depending on the circumstances, the court may be convinced that letting a new expert testify would be prejudicial to the other party but may still permit you to use the testimony already elicited from your witness as evidence. The decision is ultimately up to the judge. If you are replacing your expert in good faith (that is, due to a life event as opposed to a newly-realized weakness in their opinion or qualifications, for example), and your new expert can perfectly fill in the gap left by your old expert, you are more likely to convince the court. The possibility of such an event is a reminder to be prudent and have a backup expert lined up in case your current expert unexpectedly becomes unavailable.

If you need a qualified, educated, and convincing expert witness in a personal injury, medical malpractice, or product liability case, contact the offices of Neurosurgery Medlegal Services, LLC, at 866-659-8051.