Nevada Supreme Court Proposes Rule Changes
The last few months have been a blur and this item slipped by without notice. On December 17, 2015 Justices Hardesty and Gibbons petitioned for two changes to the Nevada Rules of Civil Procedure. The petition became ADKT 0511. The public comment period closed in January. I did not learn of this petition until late February, so I did not submit comments.
Drafter’s Note to NRCP 16.1
The first proposed change is to add a drafter’s comment to NRCP 16.1 concerning non-retained expert disclosures. The proposed comment is below.
Supplemental Drafter’s Note, Amendment Effective September 30, 2012 — A non-retained expert, including but not limited to a treating physician, who is not identified at the time the expert disclosures are due, may be subsequently disclosed in accordance with NRCP 26(e), without first moving to reopen the expert disclosure deadlines or otherwise seeking leave of court, if such disclosure is made in accordance with NRCP 16.1(a)(2)(B) and is seasonably made after the non-retained expert’s opinions become known to the disclosing party.
I do not know why this change was proposed, I may only guess. My guess is the court assumes a personal injury plaintiff is continuing treatment and begins treatment with a new specialist after the initial expert disclosure deadline. As the specialist could not have been disclosed as an initial expert because she was not involved with the plaintiff’s treatment yet, this comment would permit this treater to now be listed as a non-retained expert.
I oppose this change as it seems to creates a loophole. Assume I am representing a personal injury plaintiff, initial expert disclosures have occurred, and (the biggest assumption yet) that the non-retained experts were correctly disclosed. Assume the defendant then deposes my lead non-retained treating physician and the physician does poorly. Am I stuck with that? No. Just send the client to another physician and then disclose that physician per this proposed drafter’s note. You could not have known the new physician’s opinions before initial expert disclosures, so this supplemental disclosure is timely. In this scenario, the proposed drafter’s note has good intentions based upon the reality of ongoing medical treatment, but it creates a massive loophole that only increases costs and the potential for both delay and gamesmanship.
Having said that, if enacted the drafter’s note still requires the supplemental disclosure to comply with NRCP 16.1(a)(2)(B). Since I still have not seen a disclosure that actually complies with that rule, I am skeptical that a disclosure under this note will comply. Second, “seasonably made after the non-retained expert’s opinions become known to the disclosing party” is quite ambiguous, and probably by design. What is seasonable? When the doctor tells the patient? When the doctor tells the lawyer? When the lawyer obtains the updated medical records? Fun times await if this note is enacted.
Timing Requirements for the Early Case Conference
The proposed amendments would also change when the clock begins to run on the period to hold an early case conference. It seems to be a direct response to the Supreme Court’s Dornbach decision that I previously discussed here.
NRCP 16.1(b)(1) would be changed to read: Absent compelling and extraordinary circumstances, neither the court nor the parties may extend the time to a day more than 180 days from the filing of the answer by the first answering defendant. after an appearance is served by the defendant in question. NRCP 16.1(e)(1) would be changed to read: If the conference described in Rule 16.1(b) is not held within 180 days from the filing of the answer by the first answering defendant after an appearance by a defendant,… NRCP 16.1(e)(2) would read: If the plaintiff does not file a case conference report within 240 days from the filing of the answer by the first answering defendant after an appearance by a defendant,…
I am also against this change as it serves to only delay the start of discovery and increase case duration. Those practicing in state court have labored under the delusion that an early case conference cannot occur until an answer is filed. This is incorrect. In state court, the clock starts running as soon as the first defendant appears. This is somewhat similar to the federal system where discovery also opens when the first defendant appears. If a motion to dismiss is the first appearance, the parties may move to stay discovery if the motion could result in global dismissal. If not, then the parties proceed with discovery because, no matter the ruling on the motion, at least some part of the case will remain. The federal system shortens case duration and lowers costs.
The current language encourages diligent pursuit of claims. The proposed language only delays that pursuit.