Requirements Amended for Non-Retained Expert Disclosure & Timing of Early Case Conference

On May 6, 2016 the Supreme Court of Nevada enacted a change to NRCP 16.1 that changes 1) non-retained expert disclosures; and 2) the timing of the early case conference obligations.[1]  I previously wrote about the proposed changes and how I opposed them.[2]  Regardless, the changes take effect on July 6.

Non-Retained Expert Disclosures

A drafter’s note has been added to NRCP 16.1.  It states:

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), within a reasonable time after the non-retained expert’s opinions become known to the disclosing party and not later than 20 days before the close of discovery. Otherwise, the disclosing party must move to reopen the discovery deadlines or otherwise seek leave of court in order to disclose the non-retained expert.

As before, I do not know what motivated this note.  I am not aware of any equivalent in the federal rules.[3]  Although the final note is a slight improvement over the initial draft, it still creates the massive loophole I discussed.

What does the note do and not do?  First, the note only applies to non-retained experts who were not included in a NRCP 16.1(a)(2)(B) disclosure earlier in the case.  This includes attempted disclosures that were deficient.  The note does not excuse earlier failure to properly disclose per NRCP 16.1(a)(2)(B)’s various requirements.

Second, the note assumes that the non-retained expert was not disclosed because the disclosing party did not know of the expert’s opinions.  I would interpret this as a “knew or should have known” standard.  If plaintiff has been treating with a certain physician for two years and did not disclose that physician as a non-retained expert until 20 days before discovery closed, I would call shenanigans.  If the plaintiff could have known of the non-retained expert’s opinions before the initial disclosure deadline but failed to disclose them, this note will not bail the plaintiff out.  Again, if the note is interpreted in the context of ongoing medical treatment, this interpretation seems logical.

The note’s timing requirements seem likely to lead to a great deal of motion practice.  The new non-retained expert must be disclosed “within a reasonable time after the non-retained expert’s opinions become known to the disclosing party and not later than 20 days before the close of discovery.”  The analysis starts with this question: when did the opinions become known to the disclosing party?  Again, this must be interpreted as a “knew or should have known” standard.  If actual knowledge is the only standard, it promotes sandbagging because the plaintiff could just ignore all the indicators that an opinion is present, or just refuse to obtain any medical records that would document that an opinion is present until after initial expert disclosures.  I suspect there will be various motions arguing the plaintiff knew or should have known when the doctor told the patient.  The oppositions will argue it began only when the lawyer obtained updated medical records, although that argument seems tenuous since the client has a duty to keep the lawyer informed.

What is a reasonable time after learning of the opinions?  I would argue this is a very short period of time.  The reason is the timing in the overall context of the case.  In most state court discovery scheduling orders I encounter, there are 90 days between initial expert disclosures and discovery closing.  For practical purposes, this is already a relatively short period.  This note now permits new treating physicians to become non-retained experts during the first 70 of these days.  This is not a lot of time for the opposing party to respond.  If a plaintiff became aware of the new opinions and waited more than one week to disclose, I would argue that is unreasonable given the very limited time that remained in discovery.  Again, waiting gives the appearance of sandbagging.

Next, what does the opposing party do if it receives a new non-retained expert disclosure per this drafter’s note?  Evaluate it.  If the non-retained expert is offering the same opinion as the other non-retained experts, then there may not be a need for extending discovery.  If the new non-retained expert is offering brand new opinions to the case, discovery may need to be extended and expert disclosures re-opened.

Early Case Conference Timing Requirements

The timing requirements for an early case conference were also modified, implicitly overruling at least part of Dornbach.[4]  NRCP 16.1(b)(1)  was changed to read:  “within 30 days after filing service of an answer by the first answering defendant, and thereafter, if requested by a subsequent appearing answering party, the parties shall” hold an early case conference.  By changing the language from appearance to answer, the timer no longer starts running upon motions to dismiss or even to quash service.  This change also appears in other parts of the rule for consistency.  For instance, NRCP 16.1(e)(1) and (2) were modified to clarify that the 180 and 240 day periods for dismissal if the early case conference is not held or the joint case conference report is not filed begin upon “service of an answer.”

[1] The order is available here.
[2] March 3, 2016.
[3] If your jurisdiction has this, I would quite interested to know about it.
[4] Dornbach ’s impact upon the timing requirements was discussed on May 22, 2014.