No Protection for De-designated Expert Witness After Report Filed, NV Supreme Court

A de-designated expert witness cannot regain confidentiality protections after the witness' expert report has been disclosed, the Nevada Supreme Court has ruled. The lost of protections occurs when the expert report is filed, not after the expert's deposition.

In McClendon v. Collins, 132 Nev. Supreme Ct, Apr 21, 2016, Diane Collins rear-ended Ja Cynta McClendon's car and in the subsequent lawsuit designated Dr. Eugene Appel, a general surgery expert witness, as a testifying expert, and filed his expert witness report and two of his supplemental reports. However, before Appel was deposed, Collins de-designated him and filed a motion to prevent McClendon from deposing Appel or calling him to testify. McClendon then moved to designate Appel as her own expert witness, to depose him, and use his expert witness reports at trial.

The district court granted Collins' motion, prohibiting McClendon from using Appel as her expert. The jury found in favor of Collins, and McClendon appealed, arguing that the district court abused its discretion by refusing to allow her to use Appel.

Under NRCP 26(b)(4)(A), "[a] party may depose any person who has been identified as an expert whose opinions may be presented at trial." A party may not depose or otherwise discover facts or opinions held by an expert who is not expected to be called as a witness at trial unless there are "exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means." NRCP 26(b)(4)(B).

However, the NRCP is silent as to whether an opposing party may depose or call as a witness an expert who had been designated as one who would testify at trial, but was later de-designated.

The Nevada Supreme Court found that, as the NRCP is based in large part on the federal rules, federal rulings have "strong persuasive" value, and some federal courts have held that a de-designated expert witness may lose the confidentiality protections and be deposed or called as a witness by an opposing party. The factors considered in allowing the loss of confidentiality include:

• whether the testimony would be duplicative or cumulative of other witnesses' testimony, thus limiting the probative value of that testimony; and,
• 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,"

After an expert witness has lost NRCP 26(b)(4)(B)'s protections, 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. The trial court's discretion should be guided, the Nevada Supreme Court found, "by a balancing of probative value against unfair prejudice." That said, the court found that evidence of the expert's original retention by the opposing party was inadmissible, as it could "destroy counsel's credibility in the eyes of the jury."

As the district court appeared to have improperly based its decision on the fact that Appel had not yet been deposed, it abused its discretion. However, in this case, as McClendon had failed to include a trial transcript and provided no insight in her brief indicating that she was prejudiced by the decision, the Nevada Supreme Court found that the district court's error was harmless.