The Vanishing Expert and the Trial Date
Attorney Ruiz represents plaintiff Marta in a personal-injury suit. Trial is set for March 3, 90 days away. Marta's liability expert, Dr. Okafor, examined her six months ago and prepared an unsigned draft report concluding the defendant's machine lacked a guard. Last week Dr. Okafor emailed Ruiz: he is relocating abroad, will not testify, and refuses to sign anything. Ruiz has not yet served any expert designation; the scheduling order requires designation and reports 60 days before trial. Ruiz's partner suggests serving the unsigned draft as Dr. Okafor's report and listing him as a witness, reasoning that the defense can depose him by video. Marta cannot afford a new expert, and without expert testimony her design-defect claim fails as a matter of law.
1. What are Ruiz's ethical obligations regarding the unsigned draft report and listing Dr. Okafor as a witness?
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Ruiz may not serve the unsigned draft as Dr. Okafor's report or list him as a witness he knows will not appear. Candor to the tribunal (Rule 3.3) forbids offering evidence Ruiz knows is false or failing to disclose a material fact to avoid a fraud on the court-representing that a non-testifying expert has issued a report is misleading. Meritorious claims (Rule 3.1) and expediting litigation (Rule 3.2) do not authorize fabrication. The partner's video-deposition theory fails because Dr. Okafor has refused to participate at all; a witness who will not appear cannot be deposed. Ruiz must promptly correct any impression already created, notify Marta that the claim may fail, and explore lawful alternatives (a court-appointed expert, a continuance, or voluntary dismissal). Concealing the problem risks discipline and sanctions.
2. If Ruiz seeks a continuance to find a new expert, how should he frame the request, and what must he disclose?
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Ruiz should move promptly under the scheduling order and Rule 3.2, framing the request as a good-faith need for time to obtain substitute expert testimony essential to a meritorious claim. He must be candid: disclose that Dr. Okafor has withdrawn and will not testify, and that no report has been served. He should not characterize the delay as the opponent's fault or invent diligence he did not exercise. He should propose a realistic schedule and note prejudice to Marta if the case is dismissed. If the court denies the continuance, Ruiz must reassess whether the claim can proceed and advise Marta of the consequences, including possible voluntary dismissal without prejudice to avoid an adverse judgment.