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Lee Ann Pierce, Bankruptcy Trustee For Harold W. v. Fremar

December 14, 2010

LEE ANN PIERCE, BANKRUPTCY TRUSTEE FOR HAROLD W. RINEHART BANKRUPTCY ESTATE, PLAINTIFF,
v.
FREMAR, LLC; AND MIDWEST COOPERATIVES, DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

MOTION TO SUBSTITUTE AN EXPERT WITNESS

Lee Ann Pierce, Harold W. Rinehart's bankruptcy trustee, maintains suit against defendants, Fremar, LLC, and Midwest Cooperatives, on a breach of contract claim. Pierce moves to substitute a new expert witness. Defendants resist the motion. The motion is granted.

BACKGROUND

The pertinent facts on this issue are as follows: Rinehart brought suit against Fremar and Midwest Cooperatives on May 14, 2009, for allegedly spraying the wrong herbicide on Rinehart's fields and ruining his planting of winter wheat.

On October 13, 2009, Rinehart disclosed Tait Lacey, officer and part owner of Lacey's Farmacy, as an expert witness. On November 17, 2009, the parties notified the court that Rinehart had filed a petition for bankruptcy. This lawsuit was listed as potential property of the bankruptcy estate. Based on the parties' stipulation, the court entered an order staying this action on November 17, 2009. On January 19, 2010, the court lifted the stay and substituted Pierce as bankruptcy trustee for Rinehart's bankruptcy estate as the plaintiff in this action. A new scheduling order was issued by the court on February 4, 2010, which required Pierce to disclose any additional experts by March 4, 2010, and required defendants to disclose their responsive experts by April 2, 2010.

Lacey's Farmacy had a $43,000 claim against Rinehart and was named as a creditor in his original bankruptcy action. Pierce claims that immediately before Lacey's scheduled deposition in August of 2010, Lacey informed her that he no longer wished to be an expert witness. The parties did not depose Lacey that day. Pierce seeks to substitute Todd Michael Landsman, an agronomist, for Lacey. Because the parties were unable to resolve the matter, Pierce filed this motion. Fremar opposes the motion. Midwest Cooperatives joins in Fremar's opposition.

DISCUSSION

I. Good Cause

Pierce seeks to amend the court's Rule 16 scheduling order from February 4, 2010, and add Landsman as an expert. A Rule 16 "schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4).

"The primary measure of Rule 16's 'good cause' standard is the moving party's diligence in attempting to meet the case management order's requirements." Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)). " 'The existence or degree of the prejudice to the party opposing the modification' and other factors may also affect the decision." Id. (quoting Johnson, 975 F.3d at 609). A district court's order to amend a Rule 16 scheduling order is reviewed under an abuse of discretion standard. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008) (citation omitted). Pierce argues that Lacey has a conflict of interest because he was an unsecured creditor in Rinehart's bankruptcy action. Defendants respond that Lacey does not have a conflict of interest because Lacey's claim was discharged when the debtor was discharged. Because Lacey has indicated that he is unwilling to testify as an expert witness, it is irrelevant whether Lacey has a conflict of interest. On the day that Lacey's deposition was to be taken in August of 2010, Lacey told Pierce's counsel about his bankruptcy claim and that he no longer wished to be an expert witness. Lacey explained that because his business is in Salem, South Dakota, and Fremar operates in Parker and Salem, he believed it would not be good for his business if he served as Pierce's expert witness.

Defendants dispute that Lacey stated he does not want to be an expert because there is no evidence to support Lacey's statement: "Were there any validity to this claim, one would certainly assume we would have seen evidence through more than a mention in these two pleadings." Docket 69 at

3. But this argument misstates the facts, as evidenced by a letter from defendants' counsel to Pierce's counsel dated August 10, 2010:

Today after the deposition of Darwin Miller . . . we expected to take the deposition . . . of your named expert Tait Lacey. You indicated that based upon these two factors [Lacey's conflict of interest and the need for an agronomy expert], you would not utilize Mr. Lacey as an expert in this case . . . I just wanted to send a note ...


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