Substituting an Expert Witness After Discovery: Nevada Adopts Fed Standard

Substituting an expert witness after the close of discovery has been an unsettled issue of law in Nevada, according to the state's Supreme Court, which has now adopted the federal standard, upholding the trial court's opinion, generally.

The case stems from a negligent hiring, training and/or supervision claim made by Lamont Compton against Irving Torremoro and Keolis Transit Services, LLC, after Compton was injured in a motor vehicle accident. Compton had designated his treating physician, Dr. Jeffrey David Gross, a neurosurgery expert witness, as his retained medical expert.

Unbeknownst to Compton, an indictment had been filed under seal against Dr. Gross in the U.S. District Court, which was unsealed in May 2018. The close of discovery in Compton's case was set for March 7, 2020; Compton filed a motion on March 6, 2020 to exclude evidence of Dr. Gross' pending federal indictment being introduced at trial, which the trial court granted.

In May 2021, Dr. Gross plea agreement was unsealed: he had pleaded guilty to one felony count of conspiracy in accepting nearly $623,000 in bribes and kickbacks for referring his patients to receive spinal surgeries at a corrupt Long Beach hospital, services paid for primarily through the California workers' compensation system. Dr. Gross was ordered to forfeit the money and sentenced to 15 months in prison.

In June, 2021, after learning of Dr. Gross' conviction, Compton moved to substitute Dr. Raimundo Leon. The trial court granted his motion, finding that:

1. the request to substitute was substantially justified;
2. the harm to the plaintiff was outweighed by any harm to the defendants; and,
3. the plaintiff had no knowledge of the status of the criminal case as it was underseal.

In Torremoro v. Eighth Judicial District Court (Nev. No. 83596, Jul 7, 2022), the defendants petitioned the state Supreme Court to vacate the trial court's order granting Compton's motion to substitute the Dr. Gross. The Court found the issue of what circumstances warrant the substitution of an expert witness to be “an important and unsettled issue of law.”

The Court looked to federal courts for guidance, finding that trial courts should consider the state's good cause standard [NRCP 16(b)4] in combination with applicable local rules. When considering if there is good cause, the Court listed three tests:

1. Did the moving party act diligently?
2. Will the delay prejudice the nonmoving party?
3. Did the moving party demonstrate that its failure to act was the result of excusable neglect (some unexpected or unavoidable hindrance.

The Court unanimously concluded that it was adopting the federal approach, and that the trial court properly granted the substitution of Compton's expert witness.

Dr. Gross' criminal conviction being under seal gave Compton excusable neglect, even though Gross' criminal indictment was unsealed nearly two years before the close of discovery. The bar for substituting an expert witness after discovery still seems high. Diligently vetting experts is important: even with a felony conviction, Dr. Gross still has his medical license.