Impact of Failure to Object to Discovery Commissioner’s Report and Recommendations

On April 8 a panel of the Supreme Court of Nevada will hear oral argument in Clark v. Coast Hotels and Casinos, docket number 62603. As a disclaimer, I handle some matters for Coast and Coast’s parent company, Boyd Gaming, but have no involvement in this case. Clark squarely addresses certain discovery issues and one annoyingly gray area of Nevada law.

The basic facts of the case are that plaintiff was on an escalator at the Gold Coast when the escalator came to a sudden halt after a patron tripped, causing a safety switch to activate. The sudden stop caused plaintiff to fall and sustain injuries. She filed suit, A-09-603239-C, and disclosed an expert as to escalator safety, Joseph DeMaria, Ph.D. When Gold Coast deposed Dr. DeMaria, he apparently testified he was a general safety expert but had no specific expertise concerning escalators. Gold Coast’s subsequent motion to exclude him was granted on May 23, 2012. Judge Villani’s minute order noted

Plaintiff’s Complaint at Paragraph VI alleges that she fell when an escalator suddenly stopped and, specifically, in regard to the elevator issue, it is alleged that the Defendant’s “failure to properly and adequately inspect the escalator and to ascertain its hazardous and dangerous conditions” was the cause of her fall. Mr. DeMaria’s expert report at page 7 merely states that it is his “opinion that the Plaintiff’s fall and subsequent injuries were a direct result of the Defendant’s escalator sudden stop.” Plaintiff has not established that Mr. DeMaria is an expert in the field of escalator design, maintenance, or installation and has no specialized training, education, or experience relative to escalators. As such, he is unqualified to render any expert opinion regarding the safety, maintenance, design, or installation of the escalator in question. Further, his opinion is not of an expert nature. See NRS 50.275 and Hallmark v. Eldridge, 124 Nev. Adv. Rep. 48, 189 P.3d 646 (2009).

This left Plaintiff arguing a product case with no expert to testify the product was defective. Plaintiff moved to reopen discovery to name a different expert. During oral argument Discovery Commissioner Beecroft repeatedly asked what excusable neglect supported the motion. Plaintiff argued the excusable neglect was that she could not foresee the district court striking her expert. This argument was rejected and the motion denied on August 13, 2012.

Gold Coast then moved for summary judgment, arguing the design, manufacture, installation, and maintenance of an escalator system is beyond the common knowledge of a layperson and requires expert testimony to prove. The court agreed and, as Plaintiff had no expert, granted summary judgment.

These are likely the primary issues on appeal. 1) Did the district court abuse its discretion by striking the expert? 2) Did it abuse its discretion by not extending discovery? 3) Is an expert witness required to prove this case? Issues one and three interest me, and I hope many readers, because it is a frequent topic in my practice.

Issue 2 is the annoyingly gray area of Nevada law I referenced. On October 28, 2013 and November 4, 2013 this blog discussed federal decisions noting what is and is not excusable neglect. Based upon those rulings, I personally doubt there was excusable neglect here. More fundamentally, I question whether this issue is even properly on appeal. The Discovery Commissioner’s Report & Recommendations on file indicates Plaintiff did not object to the ruling denying the motion to extend discovery. By failing to object in the district court, did Plaintiff waive the right to appeal this ruling?

A Nevada Discovery Commissioner operates in civil cases in a manner somewhat analogous to a federal Magistrate Judge. If this case was in federal court and the order was entered by a Magistrate Judge, Rule 72(a) would apply. “A party may not assign as error a defect in the order not timely objected to.” Federal courts appear to strictly enforce this provision. If a party does not object to the Magistrate Judge’s ruling, the party may not object to the ruling on appeal. Rule 72 does not exist in Nevada state courts, nor have I found guidance elsewhere. Valley Health Sys., LLC v. Dist. Ct., 127 Nev. Adv. Op. 15, 252 P.3d 676 (2011) only said when a party objects it cannot raise new arguments not presented to the Discovery Commissioner. Given the lack of guidance, I do not know how the Supreme Court will resolve this issue.