Court of Appeals Rules JCCR Isn’t Pointless

Last Thursday the Court of Appeals considered an appeal that concerned the binding effect of a stipulation contained in a joint case conference report.  DeChambeau v. Balkenbush started as a medical malpractice case but later devolved into a legal malpractice case.[1]  NRCP 16.1(b)(1) requires the parties to meet and confer prior to opening discovery.  NRCP 16.1(b)(2) discusses the minimum topics that must be covered, and NRCP 16.1(c) describes the report the plaintiff must file after the conference.  It was this report that generated the issue.

In DeChambeau the parties “stipulated to a discovery schedule that expressly waived the usual requirement … that written reports be produced and exchanged summarizing the anticipated testimony of all expert witnesses designated to appear at trial.”[2]   After discovery, the district court granted the lawyer’s motion for summary judgment.  The clients appealed and the Supreme Court reversed.  Upon remand,

the district court conducted a status hearing with the parties and, apparently sua sponte but without objection by either party, issued a scheduling order which, among other things, extended the deadlines for disclosing both initial expert witnesses and rebuttal experts. The district court’s revised scheduling order did not specify whether the requirement to prepare and exchange expert reports would once again be waived.

The lawyer designated a new expert but did not disclose a report, consistent with the stipulation in the joint case conference report.  The clients moved to exclude the expert for failure to provide a report, the district court denied the motion, the case was tried, the expert testified, and the jury returned a defense verdict.  The clients appealed arguing, among other things, that the district court erred by allowing the expert to testify in the absence of a report.

The Court of Appeals noted the parties could and did waive the report requirement, as documented in their joint case conference report.  The question was whether the district court’s subsequent scheduling order after remand voided that stipulation or included it.  The Court concluded that the remand did not reset the case and void prior stipulations. Lesson learned.

[1] 134 Nev. Adv. Op. 75 (Ct. App. 2018).  As a disclaimer, I worked for almost 9 nine years at the same firm as the defendant lawyer.  I had no involvement in this matter though.
[2] There is no explanation why they did this, but it was apparently beside the point.