Ga. City Makes Case for Hiring Substitute Expert in Tower Dispute vs. T-Mobile

Roswell, Georgia, is pushing back against T-Mobile’s resistance to the city’s motion to substitute a new RF engineering expert witness after its previous expert resigned suddenly March 2, saying the job was too stressful (see 2403180002).

The city alleges that T-Mobile seeks only to enhance its existing network with a proposed tower, not ensure 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.

Courts “consistently allow substitution” when unexpected events arise, but disallow it when the reason was foreseeable and resulted from the movants' “lack of diligence,” said Roswell’s reply Friday (docket 1:10-cv-01464) in U.S. District Court for Northern Georgia in Atlanta in support of appointing consultant Ben Levitan to replace Ronald Graiff as its expert witness. “The focus is whether the party seeking the substitution has demonstrated diligence,” it said.

Most courts find “good cause and excusable neglect” when the moving party didn’t create the need for substitution or the circumstances “are beyond the control of the movant,” said the reply. The city was informed of Graiff’s resignation after hours March 1, and the next day received his confirmation email, it said. It informed the court and T-Mobile fewer than two hours into the first business day, it said.

T-Mobile argues that the city wasn’t diligent “because it saw Graiff become anxious, and he mentioned he was stressed,” said the reply. To equate Graiff’s complaints and attitude with notice of an upcoming resignation “simply is unreasonable,” it said.

In addition, no law supports T-Mobile’s argument, it said.

Contrary to T-Mobile’s “bold, unsubstantiated assertion,” the city wasn’t happy to let Graiff leave, the reply said. This predicament “is in no way the result of some deliberate strategy or planned maneuvering,” it added. T-Mobile has presented “absolutely nothing in the way of evidence” that the city “had any hand” in Graiff’s unexpected, abrupt resignation, it said.

Regarding prejudice, the experts’ analysis is confined to whether a significant gap exists in wireless coverage in Roswell, whether the proposed tower fills the alleged gap, and whether it is the least intrusive means of doing so, said the reply. T-Mobile offers “no compelling justification” for requiring Levitan to “simply parrot” Graiff’s analysis, it said. Doing so would be “inconsistent with the requirement” that an expert should be independent and offer his own opinions based on his experience and expertise in the subject, it said.

Because there are three months for discovery before trial, T-Mobile can’t “reasonably claim prejudice” due to Levitan’s substitution, said the reply. The city will be “substantially prejudiced without a substitute expert,” it said. Denying the city “the opportunity to present responsive expert opinions could, in effect, summarily resolve the case in favor of T-Mobile,” it said.

In cases in which courts have awarded costs and expenses associated with the substitution of an expert, there has been some evidence of bad faith, fault, or tactical maneuvering on the part of the party making the substitution, said the reply. That simply isn’t the case here, it said. The city asks that the court “exercise its discretion and allow the substitute expert,” it said.