T-Mobile Opposes City of Roswell’s Substitution of Its Expert Witness

Roswell, Georgia, hasn’t demonstrated good cause for replacing Ronald Graiff with Ben Levitan as its RF engineering expert witness after Graiff quit that role March 2 over mental stress (see 2403110001), said T-Mobile’s opposition to the substitution Friday (docket 1:10-cv-01464) in U.S. District Court for Northern Georgia in Atlanta.

The city alleges that T-Mobile seeks only to enhance its existing network with a proposed tower, not ensure the provision of services (see 2402090001). T-Mobile contends that Roswell is violating Section 332 of the Telecommunications Act by blocking its tower applications. The lawsuit turns 14 years old on May 13.

If the court permits the substitution, the testimony of Levitan, the city’s proposed replacement, should be limited only to assessing Graiff’s “opinions and conclusions,” said T-Mobile. The new witness shouldn’t be permitted to perform new tests, rely on methods Graiff failed to use, “or to rely on other new evidence or theories not previously identified," it said.

Because T-Mobile will be prejudiced by the substitution, particularly if new methodologies are used, the court “should order the reimbursement of T-Mobile’s costs incurred in relation to the now-moot Graiff reports, deposition, and preparation for his trial testimony,” said T-Mobile. While the city asserts that T-Mobile wouldn’t be prejudiced by the substitution, “this is not so,” it said.

The issue isn’t “merely delay,” said the opposition. T-Mobile has spent “significant time, energy, and money” addressing Graiff’s expert reports, his “unsupported opinions,” and preparing for a trial that would rely on Graiff’s testimony, it said.

T-Mobile must now spend additional resources preparing to address Levitan’s new report, said T-Mobile. It will also have to prepare for and depose Levitan and amend its pretrial brief and trial preparation, it said. This is particularly the case if the court doesn’t limit the scope of Levitan’s “testimony, evidence, and methods,” it said. If the city’s new witness is permitted to “effectively moot" the evidence presented by Graiff, “the greater the cost -- and loss of prior work -- on T-Mobile,” it said.

In cases where a party has substituted an expert, “even where there is no bad faith or culpability, courts often order reimbursement of the costs and fees associated with the substitution,” said T-Mobile. Ordering the city to reimburse T-Mobile “for over a year of work now potentially wasted is reasonable,” it said.

The timing of Graiff’s resignation and the city’s desire to appoint a substitute "strongly suggests" that, rather than good cause, Graiff "simply did not want to continue working on this case," said T-Mobile's opposition. The city "having been alerted to the severe weakness of his testimony was happy to let him walk away," it said. Yet buyer’s remorse and seeking to remedy an expert’s opinions "is not good cause to substitute," it said.