Can You Use the Opposing Party’s Expert to Meet Your Burden of Proof?

I posted how cheap and lazy is not a basis for a motion to compel.  But is cheap and lazy a basis to allow one party to use the opposing party’s expert to meet their burden of proof?  The Supreme Court of Nevada issued one published decision that seems to say no, but then later reached a contradictory opinion in an unpublished disposition.

The unpublished disposition was Bhatia v. Dist. Ct., where medical malpractice plaintiff Baxter filed a motion in limine to prevent the defendants from blaming non-parties, such as another hospital that had already settled out.[1]  In medical malpractice, non-parties can be added to the verdict form.  The district court granted the motion because the remaining defendants

did not present any defense experts who opined, to a reasonable degree of medical probability, that the non-parties breached the standard of care or proximately caused Baxter’s medical condition, and that despite the testimony of Baxter’s experts, petitioners were unable to produce admissible evidence meeting the applicable standard sufficient to show the liability of any other persons.

A writ petition followed that was granted, vacating the ruling.  There were multiple reasons the petition was granted, but this post focuses on the expert analysis.  The Supreme Court summarized the argument as the remaining defendants “had no experts who opined on others’ potential fault.”  That argument was rejected in one sentence.  The defendants “are entitled to rely on Baxter’s experts’ testimony at trial.”  Bhatia cited Kerns v. Pro-Foam of S. Alabama, Inc., which stated “courts have repeatedly observed that once a party has given testimony through deposition or expert reports, those opinions do not ‘belong’ to one party or another, but rather are available for all parties to use at trial.”[2]

That is a possible conclusion, but it seems to assume a party may simply use any expert disclosed by any other party.  If so, that conflicts with a prior published decision. A prior post discussed McClendon v. Collins, which held 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.”[3]  McClendon provided several factors to guide the district court’s discretion.  “[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.”[4] 

McClendon cited two federal decisions for that last sentence.  In Ferguson v. Michael Foods, Inc. the defendants timely and adequately disclosed Dr. Farnsworth as an expert witness.

Plaintiff made no such expert disclosure prior to the discovery deadline, and, in fact, plaintiff’s later attempt to designate an OSHA expert was denied by the magistrate. A week before the original trial date in this case, plaintiff for the first time advised defendants that she was planning to call Dr. Farnsworth as a witness. To allow plaintiff to use Dr. Farnsworth in these circumstances would (1) perversely reward the plaintiff for not timely designating its own expert; (2) perversely penalize defendants for adhering to the magistrate’s scheduling order; and (3) undermine a principal objective of Rule 26, namely, to prevent a party from piggybacking on another party’s trial preparation.[5]

McClendon then quoted the second decision, FMC Corp. v. Vendo Co.  “There is a strong policy against permitting a non-diligent party from free-riding off the opponent’s industry and diligence.”[6]  FMC Corp. v. Vendo Co. in turn cited a variety of cases all along that theme.  For instance, Ager v. Jane C. Stormont Hospital which wrote “the structure of rule 26 was largely developed around the doctrine of unfairness designed to prevent a party from building his own case by means of his opponent’s financial resources, superior diligence and more aggressive preparation.”[7]

Applied to Bhatia, what showing was made to justify allowing the moving defendant to use the plaintiff’s medical expert?  If the remaining defendants wanted to blame the settled hospital, why hadn’t they disclosed the required testimony on that point?   This is especially confounding to me in Nevada where the defense generally has the burden to apportion.[8]  As discussed in a prior post, if a party has the burden of proof on a given issue and fails to meet that burden, the party shouldn’t be allowed to piggyback on the work that the other party put into their case to meet their burden of proof.  It seems to me that the district court was right, at least as to the expert issue.

[1] No. 75730, 2018 Nev. Unpub. LEXIS 394, 2018 WL 2149726 (May 9, 2018).

[2] 572 F. Supp. 2d 1303, 1311 (S.D. Ala. 2007)

[3] 132 Nev. Adv. Op. 28, 372 P.3d 492, 495 (2016).

[4] Id.

[5] 189 F.R.D. 408, 409 (D. Minn. 1999).

[6] 196 F. Supp. 2d 1023, 1048 (E.D. Cal. 2002).

[7] 622 F.2d 496, 502 (10th Cir. 1980).

[8] Kleitz v. Raskin, 103 Nev. 325, 327, 738 P.2d 508, 509 (1987) (“We conclude that in the facts of this case, plaintiff must prove that the second accident defendants’ actions were a cause of the injury. Once this is established, the burden shifts to the defendant to apportion damages. If the defendant fails to meet his burden, he is jointly and severally liable for the entire amount of damages attributable to the injury.”).