Ga. Judge Grants Roswell’s Motion for Substitute Expert in Cell Tower Fight vs. T-Mobile

U.S. District Judge Amy Totenberg for Northern Georgia in Atlanta granted the motion of Roswell, Georgia, letting it substitute Ben Levitan as its expert witness in the city’s cell tower fight against T-Mobile, said the judge's signed order Monday (docket 1:10-cv-01464). Ronald Graiff resigned unexpectedly March 2 as the Roswell expert, citing stress from the assignment (see 2403110001). T-Mobile vigorously opposed the city’s substitution motion, arguing that it was in effect a last-minute strategy for replacing Graiff because it realized his work was inadequate. But Totenberg found there was no credible evidence indicating “bad faith or deviousness” on the city’s part to use Levitan as a substitute expert, the judge’s order said. The city’s counsel promptly notified the court of Graiff's issue and “expeditiously moved to identify a new expert,” it said. The need for technical issues in this matter to be “properly presented” to the court “is obvious,” it added. The court found Roswell's motion for expert substitution "reasonable and supported by good cause,” said the order. In addition, the court ruled that granting its substitution motion “is necessary to prevent the harsh prejudice” that would result if the city was deprived use of a substitute expert, it said. Over T-Mobile’s strong objections, the court won’t confine the city’s new expert to giving expert testimony as a “virtual ventriloquist” for Graiff, it said. The court will require that Levitan “produce an expert report and be subject to a deposition, to ensure that T-Mobile has an adequate opportunity to prepare for the evidentiary hearing” in June and to be sure it’s not prejudiced by the substitution of counsel, said the order. On T-Mobile’s request that the city reimburse its attorneys’ fees and expenses incurred in connection with the work and depositions associated with the switch in experts, the court “reserves review of the merits of this request to after the conclusion of the evidentiary hearing,” it said.