Jones v. National Railroad Passenger Corporation

Background

Amanda Jones sued National Railroad Passenger Corporation and Santa Cruz Metro Transit District after she fell from her mobility device scooter while riding a bus operated by defendants. She alleged negligence and violations of the Americans with Disabilities Act and other civil-rights laws. Expert discovery closed on April 18, 2019.

The court later granted summary judgment for defendants on all remaining claims. The Ninth Circuit affirmed the decision on Jones’s Americans with Disabilities Act claims but reversed and sent back the case on her negligence claim. After the case returned, the court set a jury trial and extended the deadline for expert depositions to March 4, 2022.

Jones had disclosed Dr. Michael Freeman and Barry Atwood as experts. Freeman had provided opinions about Jones’s medical condition and its effects. Atwood had been disclosed as an Americans with Disabilities Act access consultant to rebut defendants’ disability-related experts. Jones later learned that Freeman was no longer willing to serve and that Atwood had died. She moved on February 8, 2022, to substitute experts who would testify on the same subjects and use the same data and materials.

Legal standard

The court analyzed the request under Federal Rule of Civil Procedure 16. That rule allows a scheduling order to be changed only for good cause and with the judge’s consent. Good cause generally requires diligence by the party seeking the change. Prejudice to the opposing party may also support denying the request, but the court focused first on whether Jones acted diligently.

Court’s reasoning

For Freeman, the court found that Jones acted with reasonable diligence after learning that he would no longer serve as her expert. The court also considered that the case had been dormant during the appeal and that the COVID-19 pandemic had caused delays. It concluded that good cause existed to reopen discovery for the limited purpose of substituting an expert for Freeman.

The court limited the replacement expert’s testimony to the subject matter addressed in Freeman’s report. The replacement expert could not testify in a way that was contrary to or inconsistent with Freeman’s report. The court said the replacement opinions had to be substantially similar to Freeman’s opinions, while allowing defendants to renew objections about the testimony’s scope in a later motion before trial.

For Atwood, the court found good cause because he had died and Jones could not have sought a replacement until her counsel learned of his death. The replacement expert’s testimony was limited to the previously disclosed purpose of rebutting reports, testimony, or evidence from defendants’ Americans with Disabilities Act experts.

The court separately addressed Ned Einstein. Jones appeared to seek a replacement for Einstein for the first time in her reply brief, but her motion had requested substitutions only for Freeman and Atwood. The court therefore did not consider the Einstein request as properly presented. It also noted that the information before it indicated Jones had previously told defendants she did not intend to call Einstein because there were no remaining Americans with Disabilities Act claims.

Order

The court granted Jones’s motion to substitute an expert for Dr. Michael Freeman and granted her motion to substitute a rebuttal expert for Barry Atwood, subject to the stated limits on their testimony. The court denied without prejudice the request to substitute an expert for Ned Einstein. The parties were ordered to meet and confer and submit proposed supplemental expert-discovery deadlines by March 7, 2022. If they could not agree on an Einstein substitute, Jones was directed to file a motion by March 10, 2022. The court stated that it would likely grant such a motion if Jones could establish good cause.