Supreme Court Discusses Recovering Expert Witness Costs per NRS 18.005(5)

Last Thursday the Supreme Court of Nevada decided Pub. Employees’ Ret. Sys. of Nev. v. Gitter.[1]  Factually, wife was a teacher with public employees’ retirement system account.  Husband murdered wife; daughter then sought to collect wife/mom’s PERS benefits.  Husband was disinherited as a matter of law, so the question was whether daughter could collect.  Factually, the case reads like a bar examination question designed to drive examinees crazy.  The case is mentioned here because of a side issue.

Daughter prevailed in district court.  She filed a memorandum of costs that sought $5,000 of expert witness fees for a financial consultant she used to calculate what benefits she asserted should have been available to her.  The financial consultant was never disclosed as an expert witness, never disclosed a report, and never testified.  The district court awarded costs for the expert, but limited the recovery to $1,500.

On appeal, the Supreme Court reiterated “Nevada law establishes that an expert must testify to recover more than $1,500 in expert fees.”  Conversely, an expert does not need to testify to recover less than $1,500.  “With respect to cases in which the expert acts only as a consultant and does not testify, however, district courts may award $1,500 or less, so long as the district court finds such costs constitute “[r]easonable fees.”[2]  Applying this to the circumstances of the case, the Supreme Court affirmed the $1,500 of costs.

A practical clarification.

First, the Court did provide some practical guidance as to when an expert witness provides “testimony” such that the $1,500 cap does not automatically apply.  “Because the consultant was not deposed and did not present any testimony, reports, or affidavits, the district court could not evaluate whether excess costs were appropriate.”  This sentence is probably dicta but does give some idea of what qualifies as “testimony.”

Does this expand NRS 18.005 beyond its text?

Next, I have a concern about the ruling.  It is worth noting, however, that Gitter was decided by an en banc and unanimous Supreme Court.  I suspect they do not share any concern about their decision.[3]

PERS objected to the $1,500 because the consultant 1) was never disclosed as an expert witness; 2) never disclosed a report as a retained expert; and 3) did not testify.  The third objection was addressed by limiting the recoverable costs to $1,500.  However, Gitter does not appear to address the first two.  It is unclear whether PERS even knew of the consultant’s existence until the memorandum of costs was filed.

Gitter based its decision upon NRS 18.005(5), permitting a prevailing party to recover “[r]easonable fees of not more than five expert witnesses in an amount of not more than $1,500 for each witness, unless the court allows a larger fee after determining that the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.”  My initial question is whether NRS 18.005(5) even applies.  To trigger it, the costs sought must be those of an “expert witness.”  However, Gitter never refers to the financial consultant as an “expert witness.”  The consultant is instead called an “expert consultant.”  “In this consolidated matter, we are asked to determine whether … 3) an expert consultant must testify to recover $1,500 or less in costs for that expert under NRS 18,005(5)….”  “We further hold it is within the district court’s discretion to award up to $1,500 in reasonable costs for a nontestifying expert consultant under NRS 18.005(5).”  “The district court did not abuse its discretion in awarding $1,500 in costs for Gitter’s expert consultant.”  “In concluding that up to $1,500 in fees is permitted for expert consultants who do not testify, we also affirm the district court’s award of costs under NRS 18.005(5).”

The Court used the phrase “expert witness” only in discussing the clarification it was providing as to when NRS 18.005(5) allows a prevailing party to recover certain costs.  “Nonetheless, we take this opportunity to clarify the law with respect to expert witness fees under NRS 18.005(5).”  “Under NRS 18.005(5), an expert witness who does not testify may recover costs equal to or under $1,500….”  With respect to cases in which the expert acts only as a consultant and does not testify, however, district courts may award $1,500 or less, so long as the district court finds such costs constitute “[r]easonable fees.”[4]

Presumably the en banc and unanimous Supreme Court would respond 1) an expert consultant = expert witness and 2) this choice of words makes no substantive difference.[5]  To me, however, an expert consultant is not synonymous to an expert witness.  An expert consultant is one who will not testify at trial and is presumably protected from discovery by Rule 26(b)(4)(B).

NRS 18.005(5) does not define the phrase “expert witness.”  NRS 50.275 provides some guidance, if not an express definition.  “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.”[6]  It seems this definition was applied because the district court concluded the financial consultant was qualified to potentially be an expert witness.  However, qualification is only the first step.

NRS 50.275 also requires that to be considered an expert, the opinions must assist “the trier of fact to understand the evidence or to determine a fact in issue….”  An expert may only be called at trial to assist the trier of fact if the expert and opinions where disclosed per NRCP 16.1(a)(2).  It appears conceded that the daughter never disclosed the expert or expert opinions.  In my view, this means although the qualification step was satisfied, the disclosure step was not because the expert could never have testified at trial.  This made the financial consultant an “expert consultant” but not an “expert witness” within the meaning of NRS 18.005(5).[7]

Now, before someone cuts and pastes this into their motion to retax, please remember rules 11 and 12.

[1] 133 Nev. Adv. Op 18 (2017).
[2] Emphasis in original.
[3] Queue Whitesnake: “Here I go again on my own…”
[4] Emphasis in original.
[5] “Goin’ down the only road I’ve ever known!”
[6] NRS 50.275
[7] “Like a drifter I was born to walk alone…”