                                    134 Nev., Advance Opinion 75
      IN THE COURT OF APPEALS OF THE STATE OF NEVADA


ANGELA DECHAMBEAU; AND JEAN-                           No. 72879
PAUL DECHAMBEAU, BOTH
INDIVIDUALLY AND AS SPECIAL
ADMINISTRATORS OF THE ESTATE
OF NEIL DECHAMBEAU,
                                                        FILS
Appellants,                                              SEP 2 7 2018
vs.
STEPHEN C. BALKENBUSH, ESQ.;
AND THORNDAL, ARMSTRONG,
DELK, BALKENBUSH & EISINGER, A
NEVADA PROFESSIONAL
CORPORATION,
Respondents.


           Appeal from a judgment on jury verdict, an amended judgment,
and an order denying a motion for new trial in a legal malpractice action.
Second Judicial District Court, Washoe County; Patrick Flanagan, Judge.
           Affirmed.


Kozak & Associates, LLC, and Charles R. Kozak, Reno,
for Appellants.

Molof & Vohl and Robert C. Vohl, Reno; Pollara Law Group and Dominique
A. Pollara, Sacramento, California,
for Respondents.




BEFORE SILVER, C.J., TAO and GIBBONS, JJ.




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                                                     OPINION
                   By the Court, TAO, J.:
                               In their joint case conference report, the parties to this civil
                   lawsuit stipulated to a discovery schedule that expressly waived the usual
                   requirement, otherwise contained in Rule 16.1(a)(2)(B) of the Nevada Rules
                   of Civil Procedure (NRCP), that written reports be produced and exchanged
                   summarizing the anticipated testimony of all expert witnesses designated
                   to appear at trial. Much later in the case, the district court (sua sponte but
                   without objection by either party) entered a scheduling order that extended
                   the deadline for identifying expert witnesses. The order said nothing one
                   way or the other about whether the stipulation to waive expert reports
                   continued in effect or not.
                               The question raised in this appeal is whether, in the face of that
                   silence, the original stipulation continued in effect or rather must be
                   deemed to have been entirely superseded by the new order. We conclude
                   that the intent of the parties ultimately controls the duration and scope of
                   the stipulation and, in the absence of any evidence of an intention to the
                   contrary, the stipulation should be read to continue in effect until and
                   unless expressly vacated either by the court or by a subsequent agreement
                   between the parties.
                                                 FACTUAL SUMMARY
                                This case originated as an action in medical malpractice that
                   eventually degraded into a legal malpractice suit. The plaintiffs-appellants,
                   members of the DeChambeau family (the DeChambeaus), allege that they
                   retained the respondents, attorneys licensed to practice law in Nevada
                   (hereafter collectively referred to as Balkenbush), to handle a medical
                   malpractice action on behalf of a deceased relative, but that Balkenbush
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                   handled the case negligently and that negligence led to entry of a final
                   judgment adverse to the DeChambeaus. The family then sued Balkenbush
                   for legal malpractice. This appeal arises from the legal malpractice action.
                               After the filing of the complaint and answer, the parties filed a
                   joint case conference report in which they mutually stipulated to waive the
                   requirement, otherwise contained in NRCP 16.1(a)(2)(B), that the parties
                   must exchange written reports summarizing the anticipated testimony of
                   any expert witnesses retained by either party. The joint case conference
                   report also contained an agreed-upon discovery cut-off date. Before the
                   close of discovery, Balkenbush retained and designated an expert witness
                   named Dr. Fred Morady. Pursuant to the stipulation, no expert report was
                   prepared.
                               Shortly before trial, the district court entered summary
                   judgment in favor of Balkenbush, finding that the DeChambeaus' claim
                   failed for lack of causation (an issue unrelated to the question before us in
                   this appeal). The DeChambeaus appealed to the Nevada Supreme Court
                   and, in an unpublished order, the supreme court reversed the grant of
                   summary judgment and remanded the matter back to the district court.
                               By the time the supreme court issued its order of reversal and
                   remand, all of the deadlines set in the joint case conference report, including
                   all discovery deadlines and the expected trial date, had long expired. Two
                   months after the supreme court's order of reversal and remand, the district
                   court conducted a status hearing with the parties and, apparently sua
                   sponte but without objection by either party, issued a scheduling order
                   which, among other things, extended the deadlines for disclosing both
                   initial expert witnesses and rebuttal experts. The district court's revised


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                   scheduling order did not specify whether the requirement to prepare and
                   exchange expert reports would once again be waived.
                               Balkenbush subsequently retained a new expert witness, Dr.
                   Hugh Calkins, who had not been previously designated. Adhering to the
                   original stipulation filed before the supreme court appeal, Balkenbush did
                   not provide a written report outlining Dr. Calkins' testimony. The
                   DeChambeaus objected to the designation of Dr. Calkins based on
                   Balkenbush's failure to supply an expert report describing his testimony,
                   filing both a motion to strike and a motion in limine seeking to prevent him
                   from testifying at trial. Both were denied. The case proceeded to trial with
                   Dr. Calkins testifying to the jury that, in his expert opinion, Balkenbush
                   had not violated the applicable standard of care. The jury returned a verdict
                   in favor of Balkenbush. The DeChambeaus filed a motion for a new trial
                   arguing that admission of Dr. Calkins' testimony constituted error, which
                   the district court denied. The DeChambeaus now appeal both from the
                   verdict and from the denial of their motion for new trial, presenting the
                   same arguments for both.
                                                   ANALYSIS
                               Of the various issues raised by the DeChambeaus, the one that
                   has been properly preserved for our review and merits extensive discussion
                   is whether the trial court abused its discretion by allowing Dr. Calkins to
                   testify at trial when Balkenbush never produced an expert report pursuant
                   to NRCP 16.1(a)(2)(B).
                               The starting point for our analysis is, as always, the text of the
                   governing rule. Expert reports are governed by NRCP 16.1(a)(2)(B), which
                   provides, in part:


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                                 (B) Except as otherwise stipulated or directed by
                                 the court, this disclosure shall, with respect to a
                                 witness who is retained or specially employed to
                                 provide expert testimony in the case or whose
                                 duties as an employee of the party regularly involve
                                 giving expert testimony, be accompanied by a
                                 written report prepared and signed by the witness.
                                 The court, upon good cause shown or by stipulation
                                 of the parties, may relieve a party of the duty to
                                 prepare a written report in an appropriate case. . . .
                   The purpose of discovery rules "is to take the surprise out of trials of cases
                   so that all relevant facts and information pertaining to the action may be
                   ascertained in advance of trial." Washoe Cty. Bd. of Sch. Trs. v. Pirhala, 84
                   Nev. 1, 5, 435 P.2d 756, 758 (1968) (internal quotation marks omitted).
                   Normally, we review district court decisions relating to the adequacy of
                   expert reports and the admission of expert testimony under NRCP
                   16.1(a)(2)(B) for an abuse of discretion. See Khoury v. Seastrand, 132 Nev.

                           9   377 P.3d 81, 90 (2016) ("This court reviews the decision of the
                   district court to admit expert testimony without an expert witness report or
                   other disclosures for an abuse of discretion."). Permitting an expert witness
                   to testify in violation of the requirement to provide a written report can, in
                   certain circumstances, constitute an abuse of that discretion. See generally
                   id.
                                 But the question in this case is whether the parties voluntarily
                   waived the application of that rule. NRCP 16.1(a)(2)(B) expressly provides
                   that the expert report requirement controls "[e]xcept as otherwise
                   stipulated or directed by the court" and the court "upon good cause shown
                   or by stipulation of the parties, may relieve a party of the duty to prepare a
                   written report in an appropriate case." Thus, the rule itself provides that
                   its requirements are not mandatory and do not necessarily apply to every

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                   case, but may be waived either by the court or by stipulation of the parties.
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                               Here, the parties unquestionably stipulated to waive the
                   requirement, at least initially in their original joint case conference report.
                   "A written stipulation is a species of contract." Redrock Valley Ranch, LLC
                   v. Washoe Cty., 127 Nev. 451, 460, 254 P.3d 641, 647 (2011). Stipulations
                   should therefore generally be read according to their plain words unless
                   those words are ambiguous, in which case the task becomes to identify and
                   effectuate the objective intention of the parties.     See Galardi v. Naples
                   Polaris, LLC, 129 Nev. 306, 309-10, 301 P.3d 364, 366 (2013). When
                   examining the supposed "intent" behind contractual words, what matters is
                   not the subjective intention of the parties (i.e., what the parties may have
                   thought in their minds), but rather the more objective inquiry into the
                   meaning conveyed by the words they selected to define the scope of the
                   agreement. See Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 401, 632 P.2d
                   1155, 1157 (1981) ("[T]he making of a contract depends not on the
                   agreement of two minds in one intention, but on the agreement of two sets
                   of external signs, not on the parties' having meant the same thing but on
                   their having said the same thing." (alteration in original, internal quotation
                   marks omitted)). Thus, the inquiry is not into what the attorneys may have
                   intended in their minds to convey but rather the most reasonable meaning
                   to be given to the words they utilized in the stipulation itself. See Oakland-
                   Alameda Cty. Coliseum, Inc. v. Oakland Raiders, Ltd., 243 Cal. Rptr. 300,
                   304 (Ct. App. 1988) (providing that contractual intention, whenever
                   possible, must be "ascertained from the writing alone"). See generally Oliver
                   W. Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 417-
                   18 (1899) (stating that when determining contractual intent, "we ask, not
                   what this man meant, but what those words would mean in the mouth of a


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                   normal speaker of English, using them in the circumstances in which they
                   were used").
                                  Here, the stipulation contains no express deadline or time limit.
                   The question thus becomes what the parties intended this silence to mean
                   about how long the stipulation should last. The DeChambeaus argue that
                   once the district court subsequently entered a superseding order following
                   the remand containing new deadlines, the situation reverted by default
                   back to the expectations of NRCP 16.1(a)(2)(B). They note that the parties
                   never agreed to re-enter their prior stipulation and the district court's
                   superseding order never extended it. Thus, they argue that the prior
                   stipulation terminated when the joint case conference report in which it was
                   contained was supplanted by the new scheduling order. In contrast,
                   Balkenbush argues that the district court's silence implies that it did not
                   intend to alter the parties' original agreement to waive expert reports, that
                   the parties themselves never agreed to alter it, and it therefore remained in
                   effect throughout the litigation.
                                  In the absence of ambiguity or other factual complexity,
                   interpreting the meaning of contractual terms presents a question of law
                   that we review de novo. Galardi, 129 Nev. at 309, 301 P.3d at 366. On
                   balance, Balkenbush's position is by far the more reasonable and the most
                   consistent with the plain language of the stipulation. The purpose of the
                   original stipulation is self-evident: to simplify the discovery process by
                   relieving the parties of the obligation to do something that the rules would
                   otherwise require but the parties thought unnecessary. Moreover, the
                   preparation of expert reports often comprises the single most expensive
                   (and sometimes time-consuming) part of the discovery process, so a second
                   obvious goal of the stipulation was to save both parties time and money.

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                               Consequently, there are two flaws inherent in the way the
                   DeChambeaus would have us read the stipulation. They argue in effect that
                   the stipulation was designed to be only temporary and to automatically
                   disappear whenever subsequent scheduling orders were entered, even when
                   those subsequent orders said nothing about expert reports. But reading it
                   that way would result in complicating, not simplifying, the course of
                   discovery by requiring expert reports to be submitted some of the time (i.e.,
                   after new scheduling orders were entered), but not at other times (i.e., so
                   long as the original scheduling order remained in effect). It would be more
                   than a little odd to read the stipulation as designed to create such
                   inconsistency and uncertainty at different times during the course of the
                   case and effectively make the litigation more complex than if the parties
                   had never entered into it in the first place and just followed the existing
                   rules of procedure instead.
                               The second flaw in their argument is that it reads the words of
                   the stipulation in a way that is both unnatural and inconsistent with the
                   way that lawyers and judges ordinarily do things. Normally, any order
                   issued by the court on any matter is deemed to remain in effect until
                   expressly superseded by another order on the same question.         See, e.g.,
                   NRCP 16(e) ("[Pre-trial orders] shall control the subsequent course of the
                   action unless modified by a subsequent order."); Douglas v. Burley, 134 So.
                   3d 692, 697 (Miss. 2012) (holding that "upon remand, prior orders governing
                   discovery remain in place absent a party's motion to extend deadlines and
                   a subsequent order by the trial court"); see also Greenawalt v. Sun City W.
                   Fire Dist., 250 F. Supp. 2d 1200, 1203, 1206-07 (D. Ariz. 2003) (original
                   scheduling order deadline for filing dispositive motions remained in effect
                   when post-remand scheduling order did not set a new deadline); Cell

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                   Therapeutics, Inc. v. Lash Grp., Inc., No. C07-0310JLR, 2010 WL 11530557,
                   at *5 n.7 (W.D. Wash. Apr. 30, 2010) ("Unless the court modifies it, the
                   scheduling order entered in January 2008 remains in effect."). The
                   stipulation here contains no language suggesting that the parties intended
                   to depart from the typical way that other stipulations and orders are
                   ordinarily handled between lawyers and by courts.
                               Accordingly, in the absence of any indication that the parties
                   intended their agreement to mean something else, the most reasonable way
                   to understand a stipulation like the one before us is that the parties drafted
                   it to govern throughout the course of the litigation until and unless
                   subsequently voided either by the court or by the parties themselves.' Once
                   the parties agreed to the stipulation, it remained in effect until modified or


                          'The concurrence proposes an alternative line of reasoning. First, it
                   proposes that Nevada should follow a decision from another jurisdiction
                   even when the underlying rules of civil procedure are not the same in both
                   states. Second, it suggests that the district court's revised scheduling order
                   was ambiguous, but that the DeChambeaus waived the right to challenge
                   this ambiguity on appeal because they failed to timely object to the entry of
                   the revised scheduling order—a conclusion with which we agree, which is
                   why the validity of the revised scheduling order is not at issue in this
                   appeal—and also failed to first ask the district court to "clarify" the scope of
                   the revised scheduling order—a conclusion with which we disagree, for the
                   following reasons. The DeChambeaus would have had little reason to seek
                   any such clarification until Balkenbush disclosed the new expert without
                   an expert report, because only then would it have become apparent that any
                   disagreement existed over the meaning of the revised scheduling order.
                   After the expert was disclosed, the DeChambeaus filed both a motion to
                   strike the expert and a motion in limine to prevent the expert from
                   testifying at trial. The concurrence apparently believes that these two
                   motions were not enough to preserve the matter for appeal unless the
                   DeChambeaus also asked for "clarification" as well. But there is no
                   precedent or authority cited for this proposition, and we disagree with it.

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                   superseded by any other agreement between the parties or a contrary order
                   of the court. 2
                                                   CONCLUSION
                                  In this case, the parties expressly stipulated to waive the
                   requirement to produce expert reports under NRCP 16.1(a)(2)(B). There is
                   no evidence that the parties intended it to expire at any particular point in



                          2 The DeChambeaus allege a number of other errors relating in some
                   way to Dr. Calkins' trial testimony that can be disposed of without extensive
                   discussion. First, as to their arguments that the district court erred in
                   entering a new scheduling order, that Dr. Calkins was not qualified to
                   testify, and that his testimony exceeded the scope of appropriate expert
                   testimony under Hallmark v. Eldridge, 124 Nev. 492, 189 P.3d 646 (2008),
                   they did not object to these alleged errors below, and consequently the
                   matters have not been properly preserved for appeal. See Old Aztec Mine,
                   Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged
                   in the trial court, unless it goes to the jurisdiction of that court, is deemed
                   to have been waived and will not be considered on appeal."). As to the
                   argument that the district court erred in precluding them from calling a
                   rebuttal expert, they failed to provide a transcript of the trial for our review,
                   so we have no record that this happened in the way the DeChambeaus
                   describe, what reasons the district court might have given for doing it, or
                   whether a timely objection was made below. See Cuzze v. Univ. & Cmty.
                   Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007) (holding that
                   the appellant is responsible for making an adequate appellate record, and
                   when "appellant fails to include necessary documentation in the record, we
                   necessarily presume that the missing portion supports the district court's
                   decision"). Furthermore, without a transcript, we have no basis for
                   determining what the proposed rebuttal evidence would have been and
                   cannot evaluate whether the rebuttal testimony might have affected the
                   outcome of the trial. See Carr v. Paredes, Docket Nos. 60318, 61301 (Order
                   of Affirmance, Jan. 13, 2017) ("To preserve excluded testimony for appeal,
                   the party must make a specific offer of proof to the trial court on the record."
                   (citing Van Valkenberg v. State, 95 Nev. 317, 318, 594 P.2d 707, 708(1979)));
                   Khoury, 132 Nev. at , 377 P.3d at 94 (stating that to be reversible, a party
                   must show that, "but for the alleged error, a different result might
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                   reasonably have been reached" (internal quotation marks omitted)).
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                   the litigation, and the terms of the stipulation itself contained no such
                   condition or limitation. The district court did not overrule the prior
                   stipulation, and the parties never agreed to modify it. In the absence of any
                   indication that the district court and the parties did not intend for the
                   stipulation to continue, we conclude that it remained in effect and
                   Balkenbush was not required to submit an expert report in connection with
                   Dr. Calkins. Consequently, the district court did not abuse its discretion by
                   allowing Dr. Calkins to testify at trial even though no expert report was
                   provided. We therefore affirm the judgment of the district court and the
                   denial of the motion for a new trial.



                                                                TAo'
                                                                —                   ,
                                                                                        J
                                                         Tao


                   I concur:


                                                    J.




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                   SILVER, C.J., concurring:
                               I concur in the result only. I do believe, however, that the basis
                   of this opinion should have focused on the issue of whether—on remand by
                   the Nevada Supreme Court with discovery closed—the district court erred
                   by sua sponte issuing a new scheduling order extending the time for expert
                   disclosures. Nevada law is silent in this situation, but the Mississippi case
                   of Douglas v. Burley, 134 So. 3d 692 (Miss. 2012) is illustrative here.
                               In Burley, the lower court entered an initial scheduling order
                   providing discovery deadlines. Id. at 694. After discovery closed, but prior
                   to trial, the defendants moved to dismiss and the lower court granted the
                   defendants' motion. Id. at 695. The Mississippi Supreme Court reversed,
                   and upon remand the plaintiff noticed a new expert. Id. The defendants
                   moved to strike plaintiffs newly designated expert on remand, arguing that
                   the notice was filed years after the close of discovery.    Id. The plaintiff
                   argued that the prior scheduling order had no effect on remand. Id. at 696.
                   The trial court sua sponte reopened discovery in response and refused to
                   strike the newly designated expert.      Id.   The defendant then filed an
                   interlocutory appeal challenging the district court's order reopening
                   discovery. Id. The Mississippi Supreme Court reversed, holding that "upon
                   remand, prior orders governing discovery remain in place absent a party's
                   motion to extend deadlines and a subsequent order by the trial court." Id.
                   at 697.
                               Here, similar to Burley, the district court granted summary
                   judgment after discovery had closed, and upon remand from the Nevada
                   Supreme Court, the district court inexplicably, sua sponte, entered a new
                   scheduling order extending the time for expert disclosures at a status check
                   prior to resetting the trial. Coincidently, like Burley, respondents noticed a

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                   new expert for the new trial setting. Prior to trial, appellants moved to
                   strike the expert and filed a motion in limine to preclude the new expert's
                   testimony.
                                I believe that this court should have followed Burley and held
                   that prior discovery orders remain in place absent either a party's motion
                   to extend deadlines or absent a subsequent district court order to the
                   contrary. Nevertheless, distinguishable from Burley, appellants here
                   conceded at oral argument that they never objected to the district court's
                   sua sponte scheduling order on remand. As a result, I believe that
                   appellants are now precluded on appeal from challenging the district court's
                   order claiming abuse of discretion. Old Aztec Mine, Inc. v. Brown, 97 Nev.
                   49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court, unless
                   it goes to the jurisdiction of that court, is deemed to have been waived and
                   will not be considered on appeal.").
                                Contrary to the majority's analysis, in my view the question of
                   whether the district court's sua sponte discovery order required the parties
                   under NRCP 16.1 to prepare expert reports or whether the parties' initial
                   stipulation waiving the expert report requirement governed was ambiguous
                   and not clear. The parties' initial stipulation contained no express deadline
                   or time limit. On the other hand, the district court's sua sponte new
                   scheduling order was also silent as to whether the parties' prior stipulation
                   continued in light of the court's re-opening of discovery.
                                I believe that the majority opinion unfairly attacks the parties'
                   arguments because both are reasonable interpretations of how the prior
                   discovery stipulation affected the district court's later order. However,
                   dispositive in my view is also the fact that appellants never timely
                   requested that the district court clarify its order as to whether expert

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                   reports were subsequently required or whether the parties' prior discovery
                   stipulation waiving expert reports governed going forward into the second
                   trial setting.
                                Much to appellants' chagrin, prior to the second trial setting,
                   respondents designated a brand new expert—an expert not previously
                   designated before the first trial setting after discovery had closed. But,
                   instead of corresponding with opposing counsel, or filing an order
                   shortening time requesting the district court immediately clarify its
                   discovery order as to whether the parties' prior stipulation was in effect, or
                   perhaps noticing the newly designated expert for deposition, appellants
                   appear to have strategically waited. Appellants' strategy—waiting until
                   after discovery closed to then file a motion to strike expert and a motion in
                   limine to preclude that new expert from testifying for failing to produce an
                   expert report—just did not pay off under these circumstances.
                   Nevertheless, I do not agree with the majority's analysis of the issues raised
                   in this appeal, and, therefore, I respectfully concur in result only.



                                                                                      , C.J.
                                                        Silver




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