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Expert Witnesses 

Can a Plaintiff Use a Defense Expert to Expand Her Case?

Michael Lowry

If a personal injury plaintiff does not disclose an expert witness to establish future medical care, but the defense does, can the plaintiff then co-opt the defense expert’s opinion to expand her case?



In Nevada, McClendon v. Collins addressed a somewhat related topic.  There the defendant designated a retained expert witness, but then sought to withdraw the designation and bar the plaintiff from deposing the expert or calling him as a trial witness.  The Supreme Court concluded if an expert witness is de-designated, then “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.”[1]

However, “even after an expert witness has lost the NRCP 26(b)(4)(B) confidentiality protections, this nonetheless does not create an entitlement of the opposing party to depose or use another party’s expert at trial.”[2]  Instead, “the proper standard in these circumstances is a discretionary standard, where the trial court’s discretion is guided by a balancing of probative value against prejudice….”[3]  McClendon then provided guidance as to how the balancing test should be conducted.  It noted “courts have considered such factors as whether the testimony would be duplicative or cumulative of other witnesses’ testimony, thus limiting the probative value of that testimony.”[4]  Another consideration is “whether the opposing party failed to designate its own witness before a court-mandated deadline and appeared to be attempting to piggyback on another party’s trial preparation….”[5]

Based on this, McClendon’s balancing test weighs against allowing Plaintiff to call the defense expert to introduce evidence of future medical care that Plaintiff herself did not disclose.  Plaintiff and Defendant had the same opportunity to designate expert witnesses who could have projected a need for future care.  Plaintiff chose not to, she cannot piggyback on the other party’s trial preparation.



[1] 132 Nev. Adv. Op. 28, 372 P.3d 492, 493 (2016).
[2] Id. at 494 (citation and quotation omitted).
[3] Id.
[4] Id. at 495.
[5] Id. (citing FMC Corp. v. Vendo Co., 196 F. Supp. 2d 1023, 1048 (E.D. Cal. 2002) (“There is a strong policy against permitting a non-diligent party from free-riding off the opponent’s industry and diligence.”)).