Dead Men Neither Wear Plaid Nor Render Opinions To A Reasonable Degree of Professional Certainty

Taking a break from everything being on fire to report this quick hit (h/t several people on BlueSky): every judge interprets the Daubert standard (or whatever standard applies in their state) a little different, but I assure you that a qualification for anyone to testify as an expert witness on any subject is that they must be alive.

Richard Gadrow, an appraiser and witness designated by the plaintiffs in a Southern District of Texas case, died in June 2023. The fact of his death was known to plaintiffs’ counsel as of at least December 2023. Nonetheless, a notarized affidavit bearing his “signature” dated April 26, 2024, was filed with the court (purportedly to rebut a motion for sanctions). The “inspection” upon which the affidavit was based allegedly occurred two days before Gadrow died (again, of brain cancer, not from a sudden accident or heart attack).  Plaintiffs’ counsel was previously sanctioned, in another case, for relying on Gadrow’s opinions without his knowledge, and even filing a report that Gadrow did not write, while he was dying.

Unsurprisingly, counsel for the plaintiffs has been ordered to show cause by March 7, 2025 as to why the case shouldn’t be dismissed,  why the plaintiffs and/or their counsel shouldn’t be sanctioned, why counsel shouldn’t be referred for discipline, why the notary public who allegedly witnessed the affidavit should not be reported to the appropriate officials, and why counsel shouldn’t be reported to law enforcement for possible perjury and wire fraud charges.

Whew. This should be obvious, but “tell me why we shouldn’t throw your dumb lying butt in jail” is never a good thing to see from a federal (or any) judge, regardless of how politely it is phrased.

And, from a “every mistake is a learning opportunity” standpoint, should your expert pass away (and it happens), or otherwise become unavailable (and that happens, too—I had one recently who became a judge), the remedy is to find a new expert, with leave of the court if necessary. And, if you can’t find anyone else to render the testimony you want (particularly if you’re representing the plaintiff), think long and hard about whether and how you continue pursuing you case.

I am interested to see what they cough up, and as always, I have some good referrals in Texas for plaintiffs’ counsel if they need any.

Stay tuned.