132 Nev., Advance Opinion 243
IN THE SUPREME COURT OF THE STATE OF NEVADA
JA CYNTA MCCLENDON, No. 66473
Appellant,
vs. FILED
DIANE COLLINS,
Respondent. APR 2 1 2016
IE K. LINDEMAN
-10F
MO
r
11 DE i
Appeal from a district court judgment on a Julf verdict
following a short trial in a tort action. Eighth Judicial District Court,
Clark County; Jerry A. Wiese, Judge.
Affirmed.
Cram Valdez Brigman & Nelson and Adam E. Brigman, Las Vegas,
for Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth, LLP, and Wade M.
Hansard and Daniel I. Aquino, Las Vegas,
for Respondent.
BEFORE HARDESTY, SAITTA and PICKERING, JJ.
OPINION
By the Court, SAITTA, J.:
A party may depose any person who has been identified as an
expert whose opinions may be presented at trial but may not depose or
otherwise discover facts or opinions held by an expert who is not expected
to be called as a witness at trial outside of certain exceptional
circumstances. This opinion addresses whether a witness who was
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originally designated as a testifying expert by a party but was later
de-designated may be deposed or called to testify at trial by an opposing
party. We hold that after an expert report has been disclosed, a testifying
expert witness cannot regain the confidentiality protections of
NRCP 26(b)(4)(B) by de-designating that witness to the status of a
nontestifying expert. After the expert witness has lost NRCP 26(b)(4)(B)'s
protections, it is at the district court's discretion whether to allow the
witness to be further deposed or called to testify at trial by an opposing
party.
FACTUAL AND PROCEDURAL HISTORY
This case arises from a motor vehicle accident in which
respondent Diane Collins rear-ended appellant Ja Cynta McClendon's car.
Collins designated a testifying expert medical witness, Dr. Eugene Appel,
and filed an expert witness report and two supplemental witness reports.
Before McClendon was able to depose Appel, Collins de-designated him as
a testifying expert witness and filed a motion for a protective order to
prevent McClendon from deposing Appel or calling him to testify at trial.
McClendon then filed a motion to designate Appel as her own expert
witness, take his deposition, and use his written opinions and deposition
at trial. The district court granted Collins' motion for a protective order
and denied McClendon's motion. After a trial in the short trial program,
the jury entered a judgment in favor of Collins.
McClendon raises the following issue on appeal: Whether the
district court abused its discretion by refusing to allow McClendon to
depose Appel or call him to testify.
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DISCUSSION
De-designated expert witnesses can be deposed or called to testify at trial by
an opposing party in limited circumstances
Under NRCP 26(b)(4)(A), "[a] party may depose any person
who has been identified as an expert whose opinions may be presented at
trial." A party may not depose or otherwise discover facts or opinions held
by an expert who is not expected to be called as a witness at trial unless
there are "exceptional circumstances under which it is impracticable for
the party seeking discovery to obtain facts or opinions on the same subject
by other means." NRCP 26(b)(4)(B). However, the rules of civil procedure
are silent as to whether an opposing party may depose or call as a witness
an expert who had been designated as one who will testify at trial but was
then later de-designated.
"This court reviews de novo [the] district court's legal
conclusions" regarding court rules. Casey v. Wells Fargo Bank, N.A., 128
Nev., Adv. Op. 64, 290 P.3d 265, 267 (2012). Although this court has not
yet ruled on this issue, some federal courts have held that a de-designated
expert may lose the confidentiality protections provided under rules
similar to that of NRCP 26(b)(4)(B) and be deposed or called as a witness
by an opposing party. See Sec. & Exch. Comm'n v. Koenig,
557 F.3d 736,
744 (7th Cir. 2009); Peterson v. Willie,
81 F.3d 1033, 1037-38 (11th Cir.
1996); Ferguson v. Michael Foods, Inc.,
189 F.R.D. 408, 409 (D. Minn.
1999); House v. Combined Ins. Co. of Am.,
168 F.R.D. 236, 245-46 (N.D.
Iowa 1996). "Federal cases interpreting the Federal Rules of Civil
Procedure 'are strong persuasive authority, because the Nevada Rules of
Civil Procedure are based in large part upon their federal counterparts."
Exec. Mgmt., Ltd. v. Ticor Title Ins. Co.,
118 Nev. 46, 53,
38 P.3d 872, 876
(2002) (quoting Las Vegas Novelty, Inc. v. Fernandez,
106 Nev. 113, 119,
3
787 P.2d 772, 776 (1990)). NRCP 26(b)(4)(A)-(B) are nearly identical to
their federal counterparts, FRCP 26(b)(4)(A) and FRCP 26(b)(4)(D).
The Seventh Circuit Court of Appeals has held that an expert
who has been designated as a testifying expert witness and produced an
expert report cannot later be de-designated as a nontestifying expert and
thus avoid having the expert called to testify at trial or deposed. See
Koenig, 557 F.3d at 744 ("A witness identified as a testimonial expert is
available to either side; such a person can't be transformed after the
report has been disclosed, and a deposition conducted, to the status of a
trial-preparation expert whose identity and views may be concealed."); see
also Hartford Fire Ins. Co. v. Transgroup Express, Inc., 264 F.R.D. 382,
384 (N.D. Ill. 2009) ("The Seventh Circuit Court of Appeals has flatly
rejected the idea that an expert who has been designated as a testifying
expert witness and has produced an expert report can later be redesignated as a non-testifying expert to avoid having the expert
deposed."). The Koenig court identified the disclosure of the expert report
as the time when "the opportunity to invoke confidentiality" ends,
suggesting that before that point, an expert witness may be de-designated.
557 F.3d at 744.
Similarly, the Eleventh Circuit Court of Appeals has ruled
that a designated testifying expert witness may not be de-designated and
regain the confidentiality protections of the federal counterpart to NRCP
26(b)(4)(B). Peterson, 81 F.3d at 1037-38 (citing Rubel v. Eli Lilly & Co.,
160 F.R.D. 458, 460-61 (S.D.N.Y. 1995)). However, the Eleventh Circuit
qualified its holding by stating that once an expert is de-designated, it is
at the discretion of the district court as to whether an opposing party may
depose or call the expert to testify. Id. at 1038 n.4.
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Thus, even after an expert witness has lost the NRCP
26(b)(4)(B) confidentiality protections, this nonetheless does not create "an
'entitlement' of the opposing party to depose or use another party's expert
at trial." House, 168 F.R.D. at 246. Rather, "the proper standard in these
circumstances is a 'discretionary' standard, where the trial court's
discretion is guided by a balancing of probative value against prejudice
under [Federal Rule of Evidence] 403, [the federal counterpart to NRS
48.0351" Id.
Such a standard takes into account the interests
[FRCP] 26 was designed to protect and those of
the party who originally hired the expert, to the
extent that party has not waived such an interest,
Rubel, 160 F.R.D. at 460 (party who hired expert
waived "free consultation" privilege by allowing
deposition of the expert), as well as taking into
account the peculiar prejudice that could arise if
the jury is informed that an expert presented by
one party was hired, then dropped, by the other
party.
Id.
In applying this balancing test, courts have considered such
factors as whether the testimony would be duplicative or cumulative of
other witnesses' testimony, thus limiting the probative value of that
testimony. See, e.g., Peterson, 81 F.3d at 1037; Rubel,
160 F.R.D. at 460-
61. Additionally, courts have considered whether the opposing party
failed to designate its own witness before a court-mandated deadline and
appeared to be attempting to "piggyback[ ] on another party's trial
preparation," thus undermining the principle objective of FRCP 26.
Ferguson, 189 F.R.D. at 409 (internal quotation omitted); see also FMC
Corp. v. Vendo Co., 196 F. Supp. 2d 1023, 1048 (E.D. Cal. 2002) ("There is
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a strong policy against permitting a non-diligent party from free-riding off
the opponent's industry and diligence.").
We agree with the federal courts and therefore hold that after
an expert report has been disclosed, a testifying expert witness cannot
regain the confidentiality protections of NRCP 26(b)(4)(B) by de-designating that witness to the status of a nontestifying expert. After the
expert witness has lost NRCP 26(b)(4)(B)'s protections, it is at the district
court's discretion whether to allow the witness to be further deposed or
called to testify at trial by an opposing party. The trial court's discretion
should be guided by a balancing of probative value against unfair
prejudice under NRS 48.035—for instance, excluding the expert's
testimony where it would be duplicative or cumulative or where the
opposing party is attempting to use the testimony to piggyback on the
designating party's trial preparation.
Evidence of opposing party's original retention is not admissible
An additional issue surrounding the admission of testimony by
a de-designated expert is whether evidence of the opposing party's original
retention of the expert is admissible. Such evidence could "destroy
counsel's credibility in the eyes of the jury" because "Wurors unfamiliar
with the role of counsel in adversary proceedings might well assume that
plaintiffs counsel had suppressed evidence which he had an obligation to
offer." Peterson, 81 F.3d at 1037 (internal quotations omitted). Some
federal courts that have faced this issue have indicated that such evidence
is not admissible because it is unfairly prejudicial to the party that
retained the expert. See id. at 1038 (holding that trial court's admission of
evidence regarding an expert's original retention was error, but harmless);
see also Agron v. Trs. of Columbia Univ., 176 F.R.D. 445, 452-53 (S.D.N.Y.
1997) (holding that a de-designated expert witness may be called to testify
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as long as evidence of how he became involved in the case is excluded);
House, 168 F.R.D. at 249 (holding the same). We agree with the federal
courts and hold that in instances where a de-designated expert is allowed
to be deposed or testify, evidence of that expert's original retention by the
opposing party is inadmissible.
The district court abused its discretion
This court "review [s] a district court's decision to [allow]
expert testimony for an abuse of discretion." Leavitt v. Siems, 130 Nev.,
Adv. Op. 54, 330 P.3d 1, 5 (2014).
In the interlocutory order, the district court stated that its
decision was "based significantly on the fact that. . . Appel, prior to
[Collins] de-designating him as an expert witness, had not performed [an
NRCP] 35 examination on [McClendon]." (Emphasis omitted.) However,
as we have stated above, the point at which an expert witness loses NRCP
26(b)(4)(B) confidentiality protections is when an expert witness report is
filed, not when a deposition is performed. Here, Collins had already filed
Appel's expert report as well as two supplements before he attempted to
de-designate Appel as an expert witness. Therefore, we hold that the
district court abused its discretion by basing its decision on the fact that
Appel had not yet been deposed.
The error is harmless
When a moving party shows that an error is prejudicial, the
error is not harmless and reversal may be appropriate. Wyeth v. Rowatt,
126 Nev. 446, 465,
244 P.3d 765, 778 (2010). "To establish that an error is
prejudicial, the movant must show that the error affects the party's
substantial rights so that, but for the alleged error, a different result
might reasonably have been reached." Id. "[A]ppellant[ is] responsible for
making an adequate appellate record," and when "appellant fails to
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include necessary documentation in the record, we necessarily presume
that the missing portion supports the district court's decision." Cuzze v.
Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603,
172 P.3d 131, 135
(2007).
McClendon failed to include a trial transcript. Therefore, it is
impossible to know to what extent, if any, McClendon was prejudiced by
the district court's order. Nor does McClendon provide insight in her brief
indicating that she was prejudiced by the decision. Therefore, we hold
that the district court's error was harmless.
CONCLUSION
The party who designated the testifying expert witness may
de-designate that witness to the status of a nontestifying expert witness
and regain the confidentiality protections of NRCP 26(b)(4)(B) prior to the
disclosure of an expert witness report. After an expert witness report has
been disclosed, however, the expert witness may not regain NRCP
26(b)(4)(B)'s protections, and the district court has the discretion to allow
the witness to be deposed or called to testify at trial by an opposing party.
Furthermore, in instances where a de-designated expert is allowed to be
deposed or testify, evidence of that expert's original retention by the
opposing party is inadmissible.
Because the district court appears to have improperly based
its decision on the fact that Appel had not yet been deposed, it abused its
l'ic,CAtrO vn
discretion. However, becauseACmiliarhas not provided a sufficient record
for us to determine whether the district court's error was prejudicial, we
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-Firx rty "
hold that it was harmless. Therefore, we affirm the district court's order
and the final judgment.
AIMSga J.
wow is. • av•
We concur:
J.
Hardesty
Pickering
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