The significance of a Daubert exclusion for the expert witness, counsel, and the client cannot be overstated.
In the Anthony Payne, v. C.R. Bard, Inc., Bard Peripheral Vascular, Inc., March 31, 2015, the court dealt with the issue of whether counsel should be permitted additional time to designate an expert when his original expert witness was excluded under Daubert.
The court affirmed a limited opportunity to substitute a rebuttal witness and stated:
After the district court excluded Dr. Hetzel’s testimony, Plaintiffs moved to reopen the deadline for expert disclosures so they could identify a replacement expert witness. The district court granted the motion, but only for the limited purpose of allowing Plaintiffs to disclose, as an expert witness, Murray Asch, M.D. (whom Plaintiffs had already identified as a “rebuttal” witness). The district court explained that “it appears that Dr. Asch — who is well-known to Defendants — might be used as an expert in Plaintiffs’ case-in-chief without undue delay of the proceedings or prejudice to Defendants.” Plaintiffs were given five days from the date of the district court’s order to complete their disclosure and to notify the court about whether Dr. Asch would testify during Plaintiffs’ case-in-chief.
The district court abused no discretion in granting Plaintiffs an extension that was limited both in time and in scope. The district court had already extended several of its scheduling deadlines, including granting the parties a 60-day extension for the disclosure of expert reports. Allowing Plaintiffs to identify and to disclose an entirely new expert so late in the proceedings would have likely resulted in substantial delay to the judicial proceedings and in prejudice to Defendants. And, having an expert witness stricken under Daubert, in and of itself, is insufficient to warrant an extension. Cf. Rink v. Cheminova, 400 F.3d 1286, 1296 (11th Cir. 2005) (concluding that the district court abused no discretion in denying a continuance to allow for the replacement of an expert witness stricken under Daubert). Plaintiffs failed to demonstrate good cause or excusable neglect justifying an extension greater than the one granted by the district court.