Supreme Court Rules on De-Designated Experts

Two years ago I posted about the general case law that has developed around de-designated or withdrawn expert witnesses. Just last Thursday, the Supreme Court of Nevada weighed in on the topic. Was I even remotely close to being right?

McClendon v. Collins[1] arose from a typical rear-end collision.  Collins rear-ended McClendon.  During the subsequent lawsuit, Collins disclosed a medical expert, Eugene Appel, M.D.  Before Dr. Appel could be deposed, “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.”[2]  McClendon filed a countermotion to re-open expert disclosures, designate Dr. Appel as her own expert, depose him, and use his opinions at trial.  The protective order was granted, the countermotion denied, and Collins defensed the trial.  The appeal concerned only whether the district court’s ruling about Dr. Appeal was correct.

The Court discussed NRCP 26(b)(4)(a), allowing a party to depose a testifying expert, and NRCP 26(b)(4)(B), precluding a deposition of an expert who will not testify at trial absent exceptional circumstances.  Unlike some other jurisdictions, it concluded these rules “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.”[3]  “[S]ome 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.”[4]

McClendon agreed “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 dedesignating that witness to the status of a nontestifying expert.”[5]  Once an expert has been designated as a testifying expert, “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.”[6]  There are several factors to guide the district court’s decision that arose from federal cases.  “[F]or 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.”[7]

The Supreme Court anticipated my next question: Can I use the fact that my opponent retained this expert against them?  “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.”[8]  This evidence is quite valuable as it could “‘destroy counsel’s credibility in the eyes of the jury’ because ‘[j]urors unfamiliar with the role of counsel in adversary proceedings might well assume that plaintiff’s counsel had suppressed evidence which he had an obligation to offer.’”[9]   The Supreme Court concluded “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.”[10]

Applying all of this to the case before it, McClendon decided the district court had abused its discretion, but only because its order was based “on the fact that Appel had not yet been deposed.”  The other factors should also have been evaluated.

At this point in the opinion it would have been fair for McClendon to expect the offending order to be reversed and remanded, in other words a win.  Except “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.”[11]  Consequently the error was harmless and the verdict affirmed.

To summarize, if an expert witness has been designated, but has not yet disclosed a report, then the expert witness may be de-designated and be protected by NRCP 26(b)(4)(B).  “After an expert witness report has been disclosed, however, the expert witness may not regain NRCP 26(b)(4)(B)’s protection….”[12]  The trick is I rarely see a party designate a retained expert without also disclosing a report, so the first step seems somewhat moot.  Fun times await those that reach the second step.  Was my original post right?  Eh, sort of.

[1] 132 Nev. Adv. Op. 28 (2016).
[2] Id. at 2.
[3] Id. at 3.
[4] Id. (citing 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)).
[5] Id. at 6.
[6] Id.
[7] Id.
[8] Id.
[9] Id. (quoting Peterson, 81 F.3d at 1037.)
[10] Id. at 7.
[11] Id. at 8.
[12] Id.