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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ROBERT GENE WELLS,

 Plaintiff, 

v. CASE NO.: 5:21-cv-00019

TOMMY FORD, in his official capacity as

SHERIFF of BAY COUNTY, and RICK ANGLIN,

In his supervisor capacity

Defendants.

____________________________________________________________

DEFENDANTS’ OBJECTION TO PLAINTIFF’S EXTENSION OF 

DISCOVERY DEADLINE AND SUBSTITUTION OF EXPERT

Defendants, Tommy Ford, in his official capacity as Sheriff of Bay 

County, Florida, and Rick Anglin, in his supervisory capacity, through their 

counsel and pursuant to the Court’s Order [ECF No. 42] files this Objection 

to Plaintiff’s Motion to Extend Discovery and All Other Deadlines in this 

Case for 90 Days to Permit Plaintiff to Substitute Expert, and state the 

following in support: 

BACKGROUND

1. Plaintiff made a voluntary decision to retain Ron McAndrew, a 

Prison and Jail Consultant, as an “expert” on this matter. 

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2. Plaintiff’s counsel is not only familiar with McAndrew1, but 

Plaintiff’s counsel recently retained McAndrew on another case, also against 

Sheriff Tommy Ford and Rick Anglin: Pamela Stewart, et al v. Tommy Ford, 

in his official capacity as Sheriff of Bay County, Florida and Rick Anglin, 

individually and in his supervisory capacity, Case No. 5:21-cv-00020-RHMJF. 

3. McAndrew provided two “expert reports” regarding this matter, 

the first on May 19, 2021, and the addendum on July 28, 2021. Neither report 

is extremely voluminous, the first is seven pages, the latter is 12 pages long. 

4. McAndrew was originally scheduled to provide deposition 

testimony related to this matter on March 14, 2022 but was rescheduled at 

Plaintiff’s counsel request until March 28, 2022.

5. On March 24, 2022, the Honorable Robert L. Hinkle conducted a 

Motion for Summary Judgment hearing in Pamela Stewart v. Tommy Ford, 

Case No. 5:21-cv-00020-RH-MJF, wherein Plaintiff’s counsel was present.

Judge Hinkle made various comments and/or observations regarding 

McAndrew’s proposed opinions during that hearing. 

1 Plaintiff’s counsel also wrote in her Motion that McAndrew “is a very respectable 

gentleman and ...she has known of him for any years and admired him.” [ECF 41, ¶ 8].

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6. Regarding the instant case, the undersigned conducted 

McAndrew’s deposition on March 28, 2022. On the date of his deposition, 

Plaintiff’s counsel never raised any concerns about McAndrew’s ability to 

testify. In fact, Plaintiff’s counsel engaged in asking questions of McAndrew 

during the deposition and did not at any time assert a concern that McAndrew

lacked the capacity or ability to offer testimony.

7. It was not until after McAndrew provided a less than stellar 

performance during his March 28, 2022 deposition that McAndrew notified 

Plaintiff’s counsel of his desire to resign from this specific case.

8. Prior to taking McAndrew’s deposition on March 28, 2022, 

McAndrew required defense counsel to make payment to him for his time 

expended in giving deposition testimony. It should be noted that the defense 

counsel paid McAndrew the amount he requested, i.e. $1,737.00. 

9. Based on the correspondence provided by Plaintiff counsel [ECF 

No. 41-1], McAndrew sent an email correspondence to Plaintiff’s counsel on 

March 29, 2022, stating that he was resigning from the case and that he is 

“getting very old and must recognize my age and its disenchantments.” 

10. It is insightful that the correspondence provided by Plaintiff’s 

counsel [ECF No. 41-2], shows that Plaintiff’s counsel reached out to 

McAndrew on April 4, 2022 requesting a “medical diagnosis to confirm that 

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your testimony would be unreliable and should not have been given in light 

of your condition.” McAndrew replied six days later that they “can’t go the 

‘medical diagnosis’ as I’ve testified not too long ago and will be testifying 

again in the future.” (emphasis added). McAndrew suggested that Plaintiff’s 

counsel could bring up his age (83) and that he relies on the assistance of a 

walker and or a driver/aid to help him get his walker out of the car.

11. McAndrew’s testimony during his deposition was consistent with

what he had presented in his written reports, and it was evident that he had 

received and reviewed multiple documents.

12. The record evidence is clear that McAndrew still intends to 

continue to provide expert testimony in the future in other litigation matters; 

however, he has merely elected to resign from this specific case. The 

Defendants assert that this does not create good cause for Plaintiff to be 

afforded an opportunity to extend discovery so she can retain a “new expert 

witness” after expert discovery deadlines have long passed and all other 

discovery has been concluded in this case.

13. It was not until April 14, 2022, i.e. the discovery deadline in this 

case and 17 days after McAndrew first stated that he was withdrawing from 

his involvement in this case that Plaintiff’s counsel finally filed a motion 

requesting an extension of time and permission to substitute McAndrew with 

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a new expert stating McAndrew’s testimony was inconsistent with his report. 

[ECF. No. 41]. 

14. Plaintiff had in his possession McAndrew’s reports since May 19, 

2021 and July 28, 2021, respectively. Furthermore, the deposition was 

completed on March 28, 2022 and Plaintiff was made aware of McAndrew’s 

resignation on March 29, 2022. Quite simply, Plaintiff is not satisfied with 

McAndrew’s deposition testimony, but that does not establish a good faith

excusable neglect basis to grant an extension of time for Plaintiff’s counsel 

to find a different expert witness. 

15. Defendants would be caused undue prejudice if this request for 

extension of time were granted. Specifically, Defendants have already paid 

for McAndrew’s expert witness appearance fee, incurred expenses 

associated with the transcribing of his deposition testimony and would have 

to incur additional attorney’s fees and costs in the event Plaintiff is allowed 

to obtain a different expert witness. 

Memorandum of Law

The standard for modification of deadlines is set forth in Rules 6 and 

16 of the Federal Rules of Civil Procedure. Rule 6 requires a showing of 

excusable neglect when a party files a motion after the time for filing such a 

motion has expired, and Rule 16 requires a showing of good cause for 

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modification of a court’s scheduling order. Fed. R. Civ P. 6(b)(1)(B) & 

16(b)(4).2 Plaintiff is requesting to extend the discovery deadline and modify 

the Court’s scheduling order. Since Plaintiff’s expert disclosure was due May 

2021 (almost one year ago) and the discovery deadline for the entirety of the 

case was April 14, 2022, Plaintiff must demonstrate both good cause and 

excusable neglect. 

When evaluating if a party has shown excusable neglect the Court 

considers “‘the danger of prejudice to the nonmovant, the length of the delay 

and its potential impact on judicial proceedings, the reasons for the delay, 

including whether it was within the reasonable control of the movant and 

whether the movant acted in good faith.’” PK Studios, Inc. v. R.L.R.

Investments, LLC, 2:15-CV-389-FTM-99CM, 2017 WL 495497, at *2 (M.D. 

Fla. Feb. 7, 2017), quoting Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 

996, 997-98 (11th Cir. 1997). 

2 Some Courts utilize Rule 16’s standard for modifying a scheduling order, while others 

look to Rule 37. Leibel v. NCL (Bahamas) Ltd., 185 F. Supp. 3d 1354, 1355 (S.D. Fla. 

2016)

 

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Plaintiff was aware of McAndrew’s lack of preparation for 

depositions and issues with McAndrew’s testimony due to findings

by Judge Hinkle in Stewart v. Ford 

Defendants would submit to the Court that the Plaintiff’s Counsel’s 

prior history with McAndrew is relevant, sheds light on the reason for 

McAndrew’s sudden resignation, and the Plaintiff’s subsequent request for 

substitution. Prior to March 28, 2022, and prior to the end of discovery in this 

case, April 14, 2022, Plaintiff’s counsel was more than familiar with 

McAndrew and the testimony he was apt to provide, as Plaintiff’s retained 

McAndrew to give expert opinions in the Stewart v. Ford case referenced 

above. 

Additionally, the week prior to the deposition in the above-styled case, 

Plaintiff’s counsel and McAndrew were provided insight into what the 

Honorable Judge Hinkle thought of McAndrew’s opinions in Stewart v. Ford

during a telephonic hearing on March 24, 2022, in which Plaintiff’s counsel 

was present: 

The Court: But just a stray comment, I can tell you that one 

expects experts to prepare to go through the record and to be 

much more accurate in what they say than what your experts 

were. You have got experts remarkably inattentive to the actual 

record. Mattox: I would agree with that. With Dr. Rubin, I would 

agree. I would beg to differ about Mr. McAndrew. The Court: The 

one – Mr. McAndrew, who said that there was a mandatory 

evacuation at this site and that they were not getting – that the 

boil notice water – notice was being ignored? Mattox: Yes, sir. 

The Court: When, in fact the site – the site was not in the 

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evacuation area, and they had a well that had just passed 

inspection. (Exhibit 1: 29: 11-25 -30:1)

Judge Hinkle then went on to state when ruling on the Defendants’ 

Motion for Summary Judgment that “these (Plaintiff’s) experts showed a 

remarkable lack of concern for the actual facts.” Specially as to McAndrew, 

the Court stated: 

Mr. McAndrew, for his part, testified that Mr. Lucas came to the 

jail directly from a nursing home. That’s not so. He testified that 

the jail should have transferred Mr. Lucas as the – as the medical 

doctor recommended. He certainly can’t testify that the jail should 

have transferred him without any indication that was even 

possible. The jail did everything it could to bring that about. He 

testified this was a mandatory evacuation area. He testified that 

the jail ignored the boil water notice. He gave a good bit of 

testimony about not having a certified officer within sight or 

sound, but that has nothing to do with the death or the issues in 

the case. Mr. McAndrew doesn’t have any expertise that would 

allow him to testify that any of this contributed to Mr. Lucas’ 

death. So, bottom line, if the trial was going forward, these 

experts would be giving very, very little testimony, if any. (Exhibit 

1: 46:15-17, 47:14-25 - 48:1-6)

Thus, prior to McAndrew’s discovery deposition in the above-styled 

case, Plaintiff was aware not only of the preparation that McAndrew put into 

his reports and deposition testimony, but Plaintiff’s counsel also knew that 

McAndrew had an affinity for drawing conclusions that did not rely on the 

readily available competent evidence. Therefore, it is likely McAndrew’s 

testimony in the above-styled case would be extremely limited, if not 

excluded in its entirety. Plaintiff, however, did not at seek leave of Court to 

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extend deadlines or substitute his expert after Judge Hinkle’s ruling on March 

24, 2022, nor did Plaintiff seek to extend deadlines or substitute his expert 

the day McAndrew resigned on March 29, 2022. 

McAndrew’s deposition testimony 

was not inconsistent with his Reports

 Plaintiff claims that McAndrew provided testimony inconsistent with his 

written reports, due to his old age; however, that is unsubstantiated by 

McAndrew’s sworn deposition taken on March 28, 2022 and his Expert 

Reports submitted on May 19, 2021 and July 28, 2021, respectively. Rather, 

Plaintiff’s contention that McAndrew’s deposition testimony was inconsistent 

with his reports is nothing more than a failed attempt to show “good cause.” 

Sheriff Ford and Anglin submit to the Court that McAndrew did not deviate 

from his opinions provided in his expert reports; rather, his deposition 

testimony demonstrated how those opinions appear when drawn out into the 

light. The Plaintiff and McAndrew, based on his email to Plaintiff’s counsel 

on March 29, 2022, are unhappy with the opinions he opined.

3 

3 Plaintiff’s Motion indicated McAndrew stated initially he “sensed that this [sic] my alltime worst deposition,” before Plaintiff requested a medical reason for his desire to 

resign from this case. [ECF 41, ¶ 4].

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The Defendants submit the following examples from McAndrew’s 

reports and his deposition testimony to demonstrate McAndrew did not 

“deviate” from his reports: 

In Plaintiff’s expert reports, McAndrew claimed that “Plaintiff Wells was 

violently raped by Travis Bell with McCoy participating near the Bay County 

Jail’s protective confinement shower.” (Exhibit 2: Page 4 ). In his deposition,

McAndrew opined that “any rape is horrible and brutal. Some more than 

others. This is the second case that I have worked where an inmate was 

raped with a broom handle. And in each case, it was horribly disgusting and 

hurtful to the victim. (Exhibit 3: 33:17-24). Thus, his opinion has not changed, 

and McAndrew described the incident in a similar manner as he did in his 

report. However, it is understandable that Plaintiff’s counsel is not pleased 

with McAndrew’s command of the facts when questioned beyond the sound 

bites of his report, as can be demonstrated in pages 34-41 of his deposition:

Q: How long – what was the duration? How long was he raped 

for? A: I don’t know or I don’t remember if that information was 

in the investigation or not. Q: How many people were restraining 

him while he was being raped? A: Two. Q: How did they restrain 

him? A: He was handicapped, had to walk with a walker. Didn’t 

take a whole lot to restrain a person like that... Q: Okay. All right. 

how long was McCoy raping Mr. Wells for? A: I think I just 

answered that. I don’t know if that information was provided or 

not. It may have been provided. I just don’t remember. (Exhibit 

3: 34:11-20, 24-25; 35:1-3)

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McAndrew then went on to provide the opinion that: “restraining 

doesn’t mean that you can physically hold somebody. Your mere presence, 

the threat of your presence can be restraining. If someone is standing in front 

of you and not allowing you to pass, they are restraining you.” When asked 

where the two individuals were standing – “I cannot off the top of my head 

the position of each of these men that – McCoy and Bell in terms of the 

Plaintiff. I’d have to go back and do some review on that. I cannot remember 

their exact positions.” (Exhibit 3: 35:22-25 -36:1-11)

There is a video of this incident, thus, there was no reason for 

McAndrew to speculate as to the amount of restraint or force used. When 

the Defendants pressed McAndrew on his ability to view the video and see 

that McCoy was neither behind nor in front of Wells, McAndrew stated that 

he was sticking by his testimony that McCoy was still restraining Wells. Thus, 

the lack of foundation supporting McAndrew’s opinion was drawn out in his 

deposition testimony, but there was nothing contradictory between his

written report and the deposition testimony. In fact, the contrary is true, when 

pressed, McAndrew doubled down on his opinions outlined in his reports.

One of McAndrew’s main opinions in his report dated May 19, 2021,

was that the Bay County Jail was in violation of the Florida Model Jail 

Standards by allowing non-certified officers at times to monitor the protective 

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confinement area with the use of cameras and without the direct sight and 

sound supervision of a certified correctional officer. Not only did McAndrew 

not deviate from his opinion, but he demonstrated accurate recall as to what 

was in his report and did not hesitate to reference it. 

Q: You’ve given an opinion the Bay County Jail was in violation 

of Florida Model Jail Standards by having noncertified 

corrections officers at times monitor the protected confinement 

door with the use of cameras. Which Florida Model Jail Standard 

is that a violation of specifically?” A: I thought I had that in my 

report. Q: You did. I’m just making sure that that’s the correct 

one. A: I don’t see if off the top of my head, but it’s in the report. 

Q: So, who was it that was monitoring the cameras that was not 

certified such that this was a violation of Florida Model Jail 

Standards? A: Beasley was one. Howard Beasley. 

(Exhibit 3: 47:23-25 - 48:1-12)

Additionally, McAndrew stated, regarding his opinion that the Bay 

County Jail was in violation of the Florida Model Jail Standards, “they needed 

certified staffing as opposed to noncertified. They had the citizen sitting 

behind the window supervising without the certification or training.” (Exhibit 

3: 52:5-8).

In his report dated July 28, 2021, McAndrew provided the opinion that 

Wells was violently raped, and then removed from protection, leaving his 

assailants behind. His opinion failed to take into consideration any other point 

of view, such that Wells was moved immediately for his own protection while 

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his assailants were identified. During his deposition, McAndrew was 

challenged on the location Wells was moved to after the incident came to 

staff’s attention, and while he had the pertinent documents prior to writing 

the report, and was shown the documents in his deposition, he insisted that 

Wells was removed from protective confinement. McAndrew’s failure to 

consider or accept that Wells was moved to a more secure confinement area

is not a deviation from his reports nor is it a reason to allow Plaintiff leave to 

substitute his chosen expert. He stated that from the investigation and 

general materials he reviewed in the course of the case, Bay County Jail did 

not have another confinement area, and yet he could not testify to what the 

C dorm actually was at that time. An excerpt of McAndrew’s deposition is 

below but see pages 60-66 for complete context.

From McAndrew’s Report: the very notion that Mr. Wells could 

be violently raped with the handle of a broom and then removed 

from protection, leaving his violent assailants behind, is beyond 

correctional comprehension. (Exhibit 4: 10)

From McAndrew’s Deposition: oh, the evidence that this poor 

man who’s been attacked going into the protective confinement 

shower by two inmates that were not in protective confinement, 

had no business being there, was then reassigned to another cell 

outside of protective confinement. He’s being punished for 

getting assaulted by giving him a top bunk when it’s obvious that 

he’s handicapped. (Exhibit 3: 60:16-22)

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McAndrew remained consistent in his opinion of the investigation 

conducted by Bay County Sheriff’s Office. In his Report dated July 28, 2021, 

McAndrew called the investigation “flawed,” stating that “Officer Sean 

Burkett’s flawed investigation (unlawful and unqualified investigation of 

PREA crime) only hindered matters in terms of the real meaning of Protective 

Confinement.” McAndrew provided the same opinion in his deposition: “Q: 

[W]as Sean Burkett the investigator assigned to this, this rape? A: He was 

the one who investigated the rape. I believe it goes without question that he 

was assigned to do this work.” (Exhibit 3: 55:17-21). Thus, McAndrew’s

opinion that Burkett conducted the investigation was known by Plaintiff in

July of 2021, and it did not change in his deposition, rather he was 

challenged on that opinion – he was challenged what he knew about the 

investigation, and if Burkett was the investigator, or a deputy who was tasked 

with locating a video, and when a video was located, the investigation was 

assigned to Investigator Marc Bailey. An excerpt of McAndrew’s deposition 

is below but for complete context see pages 53 - 60.

“Q: And what was flawed about Burkett’s efforts? A: That he was not 

qualified for starters. And most importantly. He was not qualified.... Q: Did 

you ever find a document assigning this to Burkett as the actual investigator 

of this case. Q: No, ma’am.” (Exhibit 3: 59:8-18). Once the undersigned 

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showed McAndrew a document regarding the investigation being assigned 

to Investigator Bailey, McAndrew did not change his opinion that it was a 

“flawed investigation,” but claimed it was flawed due to it being a “delayed 

investigation,” and that evidence could be tampered with, due to said delay. 

McAndrew then went on to say that the investigation needed “every piece of 

evidence possible,” and that he “would have gathered and given to the court 

any and all possible evidence required,” and he would have collected all of 

the brooms, every single broom and would have gotten fingerprints off of 

each broom, to “confirm who handled the broom.” (Exhibit 3: 67:25 -68:1-21)

When questioned about the evidentiary value of fingerprints to confirm 

who handled the broom when there is a video of who handled the broom, 

and a pod full of eyewitnesses, McAndrew claimed that “the court makes 

those decisions. The investigator doesn’t have that opportunity to. If he does,

he’s not an investigator. If he does, he’s not investigating a very serious 

crime,” and that he would have lifted prints off of the broom that was handled 

by every inmate in the pod and submitted them all to FDLE to identify the 

perpetrator. (Exhibit 3: 67:3 – 70:14). 

The fact that McAndrew did not deviate from his opinion but rather was 

challenged on the basis of his opinion is critical in the analysis before the 

Court. Plaintiff submitted to this Court that due diligence was exercised and 

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the issues with McAndrew and his “age” were not discoverable until four days 

prior to the close of discovery. Defendants Sheriff and Anglin submit that the 

deficiencies in utilizing McAndrew were discoverable to Plaintiff from the time 

he submitted his initial report on May 19, 2021. By way of example, 

McAndrew’s opinion that Burkett was the investigator, and the investigation 

was “flawed,” was contained in McAndrew’s report, as were all of the 

underlying documents indicating Marc Bailey was assigned as the 

Investigator, conducted an investigation, and charged two individuals for 

their actions against Wells. Thus, it is unknown whether Plaintiff failed to 

review the expert reports he submitted or thought McAndrew’s opinions 

would go unchallenged. Either option represents a lack of due diligence on 

behalf of Plaintiff. 

Defendants submit to this Court that McAndrew did not deviate from 

his opinions expressed in his reports during his deposition, and Plaintiff’s 

would have been aware of said issues with his opinions at the time 

McAndrew provided his reports to Plaintiff. Therefore, the Plaintiff should not 

now, almost a year after McAndrew provided his reports, be allowed to 

substitute his expert and receive an extension. 

McAndrew did not testify that he had not received documents that 

were listed in his reports 

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It is clear from McAndrew’s sworn deposition testimony that he

received documents – and reviewed them all, as the documents are 

referenced throughout his reports, and he referenced reviewing different 

documents throughout his deposition. The only document McAndrew stated 

was not provided to him was classification documents pertaining to Bell and 

McCoy. (Exhibit 3: 85:19 - P88:25). It is clear, however, from his reports that 

McAndrew reviewed various classification documents and in fact gave many 

opinions on classification, that would have been known to Plaintiff long 

before McAndrew’s deposition, had Plaintiff reviewed their own expert’s 

reports. McAndrew has 26 documents labeled “classification records.” 

McAndrew opined in his report that “the classification of Inmate Bell after the 

booking process would take into account a variety of factors,” and that “the 

primary objective of Classification is to place inmates in the type of quarters 

that best meet their needs and provide reasonable protection for all inmates.” 

McAndrew then provided the opinion that “this was a failure of the 

Classification process,” and that “this obvious misclassification or lack 

thereof resulted in the horrible and brutal rape of the Plaintiff.” Thus, 

McAndrew had no issue in formulating opinions regarding the classification 

of Inmates in the Bay County Jail relevant to this incident, nor did his opinion 

as to classification in his deposition change: “I know that they have a 

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classification process they are supposed to follow. It’s outlined very clearly 

in the Florida Model Jail Standards 2018. And it’s through that classification 

process that people are assigned to every cell they go to throughout that 

entire jail. They don’t just bring people in and say this is where you’re going.” 

(Exhibit 3: 83:9-15) 

McAndrew’s age does not adversely affect his ability to continue to 

perform as an expert witness 

Plaintiff, by way of his motion and the email attachments from 

McAndrew, is submitting to this Court that the reason McAndrew is 

withdrawing, and he is in need of an extension of discovery,4 and permission 

to substitute his expert is that McAndrew is “getting very old” and must 

recognize his age and its “disenchantments.” Defendants submit the 

following in response to Plaintiff’s contention the reason McAndrew withdrew 

is due to his age (83) versus his poor performance during his deposition 

testimony: 

In ECF No. 41-2, McAndrew suggested to Plaintiff’s counsel that she

attempt to argue that reason for withdrawing is his age (83) and that she 

might want to mention that he can no longer walk without aid of a walker and 

then only for short distances, and that he cannot go someplace away from 

4 Plaintiff’s expert disclosures were due May 20, 2021, having been provided a 10-day 

extension from the original deadline.

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his home without a driver/aid to help get his walker out of the car. Defendants 

would submit to the Court that in the Stewart v. Ford case, previously 

mentioned, in McAndrew’s deposition testimony on January 17, 2022, only 

a few short months ago, McAndrew provided the following testimony about 

driving: 

Q: How much do you charge an hour for your services? A: 250. 

..It depends on what I’m doing. If it’s something like this, it’s 

350.00. If it’s reviewing documents, it’s 250. If it’s waiting time, 

it’s $90 an hour. Mileage is 60 cents a mile, which by the way, 

it’s saving you $800 today, because I just happen to be come 

through Tallahassee on – from my pleasure trip in Alabama. So,

you won’t be billed for that. (Exhibit 5: 15:13-24)

Furthermore, McAndrew demonstrated in his deposition testimony that 

memory recall is not the issue – causing his present “disenchantment.” By 

way of example that old age was not impacting McAndrew’s memory in any 

way during the deposition testimony on March 28, 2022, when asked about 

his work history, McAndrew went into details about a job that he had from 

1961-1979 with a company in France. (Exhibit 3: 7-11)

I started out as a salesman covering the Mediterranean from Italy 

across Southern France to Spain, Morocco. I was then promoted 

to the vice president and general manager of the Far East and 

Southeast Asia operations after spending a year in Lebanon. 

And I then lived and worked in Japan, Korea, Hong Kong, 

Vietnam, Thailand, Guam, and finally I worked in an office for that 

company in Honolulu. (Exhibit 3: 10:12-20)

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When asked about the products the company dealt with McAndrew 

replied:

Luxury products that you find in duty-free shops, hundred-dollar 

neckties, French perfumes. We had all of the top lines -- ... top 

of the line fragrances and associated products. Things like 

expensive neckties, expensive cigarette lighters, that came from 

the French companies of Patou, Garban, Dana, Long Ba, SUP, 

Madame Rochas, Werth. And there may have been a couple of 

others that escape my memory at this moment. (Exhibit 3: 10:23-

25, 11:6-12).

Defendants would submit what is most telling about the attempt by 

McAndrew to withdraw as an expert, and for Plaintiff to seek his substitution 

and it having absolutely nothing to do with his age is contained in ECF. No 

41-2. The “disenchantments” of age, whereby one gives their “all-time worst 

deposition” because of their age do not go away, but rather worsen with time, 

as one continues to age. However, McAndrew is not discontinuing his work 

as an expert, he is not notifying all of his clients of his newfound recognition 

that he is “getting very old” and must recognize his “age and its 

disenchantments.” McAndrew does not believe his testimony was 

“unreliable” due to old age – not really, because McAndrew “will be testifying 

again in the future.” Rather this is simply an attempt by Plaintiff to retain a 

new expert when “the clock of litigation is about to strike midnight”, after their 

expert gave what he considered his “all-time worst deposition.” One can only 

opine what the true reason McAndrew chose to withdraw from the case, i.e.

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whether it be he finally realized his opinions were going to be challenged in 

a Daubert Motion and/or a Motion in Limine and he realized he lacked any 

foundation for those opinions, or he was concerned he would be excluded 

from testifying at all. 

Courts have held that “expert witnesses may be substituted ‘when 

unexpected events prevent the designated expert from testifying at trial,’

including the expert’s conflict of interest, recovery from leukemia, 

incarceration, and Alzheimer’s disease.” PK Studios, Inc. v. R.L.R.

Investments, LLC, 2:15-CV-389-FTM-99CM, 2017 WL 495497, at *3 (M.D. 

Fla. Feb. 7, 2017), quoting Leibel v. NCL (Bahamas) Ltd., 185 F. Supp. 3d 

1354 (S.D. Fla. 2016). None of those factors are present here, in fact to the 

contrary, the stated reason for “good cause” clearly cannot be the reason for 

McAndrew’s withdrawing from the case, as he intends to continue testifying.

In Leibel v. NCL (Bahamas) Ltd., 185 F.Supp.3d 1354, 1357 (S.D. Fla. 2016), 

an expert witness refused to testify, much like McAndrew appears to be 

doing in this case. The Southern District found that the expert’s “refusal to 

testify was entirely preventable;” holding, “[q]uite simply, Plaintiff did not 

prepare her expert to present an admissible expert medical opinion.” Id. 

While this case is not related to the medical treatment of Plaintiff, it is related 

to jail policies and procedures, which McAndrew, as he testified in his 

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deposition, has been found competent to testify as an expert in that field 

hundreds of times in multiple courts of law. 

Plaintiff cannot show good cause or excusable neglect and 

Defendants would be prejudiced by Plaintiff being allowed to 

substitute his expert and extend discovery deadlines

In Liebel, the Southern District reviewed what the plaintiff could have 

and should have done to ensure her expert was adequately prepared for 

cross examination; holding, “the Plaintiff’s failure to provide her expert with 

adequate medical records, her inability to be examined by her expert and her 

failure to adequately prepare her expert for his deposition, do not constitute 

good case for a modification of the scheduling order. Id. at 1357-58. That is 

similar to what has occurred here. McAndrew has effectively withdrawn 

leaving Plaintiff without an expert witness, which Plaintiff admits in his Motion 

“McAndrew’s testimony was actually worse than having no expert at all.” 

(ECF 41 p. 2, ¶ 2). Plaintiff further states, while McAndrew later seeks 

removal from the case because of age, his initial response was that the 

deposition on March 28, 2022 was his “all-time worst deposition.” 

Plaintiff’s failure to prepare his expert for his discovery deposition is 

not a good faith basis for Plaintiff to substitute his expert. Defendants submit 

to the Court that Plaintiff’s counsel was on notice the type of preparation 

McAndrew needed prior to deposition, having just recently participated in the 

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deposition of McAndrew in the Stewart v. Ford case, where the undersigned 

counsel took the deposition testimony of McAndrew on January 17, 2022, 

and Plaintiff’s counsel concluded the deposition by asking McAndrew the 

following question: “Mr. McAndrew, had you had your documents with you, 

the documents you have relied on, would that have assisted you in 

answering some of the questions that you have answered today? A: Of 

Course.” (Exhibit 5: 117:12-17). Thus, Plaintiff’s counsel was aware that her 

expert did not thoroughly prepare himself for depositions two months prior to 

the deposition he gave in this case. 

Furthermore, McAndrew’s opinions, which were consistent between 

his reports and his deposition testimony, were readily available to Plaintiff 

long before the deposition on March 28, 2022. Similarly, to what occurred in 

Liebel, Plaintiff cannot demonstrate good cause for why he did not seek 

leave to substitute his expert long before April 14, 2022, the day of the 

discovery deadline in this case. Plaintiff admittedly knew on March 29, 2022 

that McAndrew was not willing to testify and Defendants would argue Plaintiff 

knew almost a year prior when McAndrew submitted his first report. 

Therefore, “it was entirely foreseeable that [McAndrew] would perform poorly 

... and would ultimately be a detriment to Plaintiff’s case.” Id. at 1357.

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Plaintiff has not established excusable neglect, having waited almost 

one year to seek to substitute McAndrew after his initial report and having 

waited over two weeks after McAndrew’s deposition to seek to substitute his

expert, actually allowing the discovery deadline to effectively end before 

requesting leave of the Court. Like in Liebel, the Defendants in the abovestyled case would suffer prejudice should the Court modify the scheduling 

order at this time. The Southern District noted “both the parties and the Court 

have an important interest in the reliability of scheduling order deadlines.” Id. 

at 1358, f. 7.

Prejudice to Sheriff Ford and Anglin

Defendants Sheriff and Anglin have incurred various expenses in the 

defense of this case as it relates to Plaintiff’s expert McAndrew. Defendants 

paid $1,737.00 to McAndrew to take his deposition in order to challenge him 

on the opinions he provided in his report and his addendum, and defense 

counsel incurred an additional expense of $1,005.00 for the court reporter

fee to provide an expedited transcript of McAndrew’s deposition testimony. 

Additionally, Defendants have incurred expenses for the review of his expert

reports, the preparation for taking his deposition, and in retaining their own 

expert in response to his initial report. 

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Not only would Defendants be financially burdened and prejudiced by 

Plaintiff substituting McAndrew with a new expert at this point, but they would 

also be prejudiced in the defense of this case. It is impossible to say at this 

point the totality of the adverse impact such a substitution would have on the 

Defendants, but one can easily contemplate the necessity to have an expert 

review the new report, the possibility of needing an additional expert to rebut 

that report, and additional deposition testimony taken based on the content 

of that report. 

Conclusion

McAndrew was deposed for approximately three hours on March 28, 

2022. At the conclusion of the defense counsel’s questioning of McAndrew, 

the Plaintiff’s attorney questioned McAndrew at length about his opinion as 

well. At no point in time on March 28, 2022 did Plaintiff’s counsel or 

McAndrew ever ask to stop the taking of his deposition or state on the record 

that he was in any way impaired. Clearly, after providing this deposition 

testimony, McAndrew was not satisfied with how his opinions might make 

him look. Being 83 years old and walking with a cane or the aid of a walker 

is not tantamount to a witness being incompetent or lacking lucidity. The 

Courts provide reasonable accommodations to any witness who has mobility 

issues. McAndrew’s age and lack of ability to walk without the aid of a walker, 

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and only for short distances, would have been known prior to the deposition 

taken on March 28, 2022. After all, McAndrew was 82 years old when he 

prepared and submitted his initial and supplemental expert reports in this 

instant litigation. Furthermore, McAndrew would not be planning on testifying 

in the future, when he will be even older than he was on March 28, 2022, if 

he truly believed that his mental faculties were impaired due to his age. 

Defendants submit that the reasons presented by the Plaintiff do not 

equate to “excusable neglect” and Plaintiff should not benefit from his failure 

to properly vet a potential expert witness. In addition, McAndrew should not 

be rewarded by collecting a substantial sum in expert fees, withdraw after 

his opinion was challenged, claim “old age” and then go on to provide 

testimony to another Court at a later date – as it is disingenuous at best, and 

tantamount to perpetrating a fraud upon the Court, or any future Court in 

which he may testify. Thus, Defendants, Sheriff Ford and Anglin, request this 

Court deny Plaintiff’s motion in its entirety and award any fees and costs 

deemed appropriate for the defense of this matter. 

DATED this 20th day of April 2022. 

 WARNER LAW FIRM, P. A.

 /s/ Jennifer Hawkins

JENNIFER HAWKINS

 Florida Bar No. 17694

 501 W. 11th St. Suite A

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Panama City, FL 32401

Phone No. (850) 784-7772

 pleadings@warnerlaw.us 

 Counsel for Defendants,

 Ford and Anglin

CERTIFICATE OF LOCAL RULE 7.1(f) COMPLIANCE

Pursuant to N.D. Fla. Loc. R. 7.1(F), this motion contains 5907 words.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was filed via CM/ECF 

this 20th day of April 2022, which will send notice to all counsel of record. 

 /s/ Jennifer Hawkins

JENNIFER HAWKINS

 Florida Bar No. 17694

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