                                                   132 Nev., Advance Opinion 2.84
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                JA CYNTA MCCLENDON,                                  No. 66473
                Appellant,
                vs.                                                          FILED
                DIANE COLLINS,
                Respondent.                                                  APR 2 1 2016
                                                                                E K LINDEMAN
                                                                        CL      ar
                                                                             A kw.•         A.
                                                                                DE       ERK

                           Appeal from a district court judgment on a jui-± verdict
                following a short trial in a tort action. Eighth Judicial District Court,
                Clark County; Jerry A. Wiese, Judge.
                           Affirmed.


                Cram Valdez Brigman & Nelson and Adam E. Brigman, Las Vegas,
                for Appellant.

                McCormick, Barstow, Sheppard, Wayte & Carruth, LLP, and Wade M.
                Hansard and Daniel I. Aquino, Las Vegas,
                for Respondent.




                BEFORE HARDESTY, SAITTA and PICKERING, JJ.

                                                OPINION
                By the Court, SAITTA, J.:
                           A party may depose any person who has been identified as an
                expert whose opinions may be presented at trial but 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 outside of certain exceptional
                circumstances. This opinion addresses whether a witness who was

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                       originally designated as a testifying expert by a party but was later
                       de-designated may be deposed or called to testify at trial by an opposing
                       party. We hold that after an expert report has been disclosed, a testifying
                       expert witness cannot regain the confidentiality protections of
                       NRCP 26(b)(4)(B) by de-designating that witness to the status of a
                       nontestifying expert. After the 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.
                                       FACTUAL AND PROCEDURAL HISTORY
                                   This case arises from a motor vehicle accident in which
                       respondent Diane Collins rear-ended appellant Ja Cynta McClendon's car.
                       Collins designated a testifying expert medical witness, Dr. Eugene Appel,
                       and filed an expert witness report and two supplemental witness reports.
                       Before McClendon was able to depose Appel, Collins de-designated him as
                       a testifying expert witness and filed a motion for a protective order to
                       prevent McClendon from deposing Appel or calling him to testify at trial
                       McClendon then filed a motion to designate Appel as her own expert
                       witness, take his deposition, and use his written opinions and deposition
                       at trial. The district court granted Collins' motion for a protective order
                       and denied McClendon's motion. After a trial in the short trial program,
                       the jury entered a judgment in favor of Collins
                                   McClendon raises the following issue on appeal: Whether the
                       district court abused its discretion by refusing to allow McClendon to
                       depose Appel or call him to testify.




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                                                      DISCUSSION
                       De-designated expert witnesses can be deposed or called to testify at trial by
                       an opposing party in limited circumstances
                                   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 rules of civil procedure
                       are silent as to whether an opposing party may depose or call as a witness
                       an expert who had been designated as one who will testify at trial but was
                       then later de-designated.
                                   "This court reviews de novo Ethel district court's legal
                       conclusions" regarding court rules.   Casey v. Wells Fargo Bank, N.A., 128
                       Nev., Adv. Op. 64, 290 P.3d 265, 267 (2012). Although this court has not
                       yet ruled on this issue, some federal courts have held that a de-designated
                       expert may lose the confidentiality protections provided under rules
                       similar to that of NRCP 26(b)(4)(B) and be deposed or called as a witness
                       by an opposing party. See Sec. & Exch. Comm'n v. Koenig,        557 F.3d 736,
                       744 (7th Cir. 2009); Peterson v. Willie, 81 F.3d 1033, 1037-38 (11th Cir.
                       1996); Ferguson v. Michael Foods, Inc., 189 F.R.D. 408, 409 (D. Minn.
                       1999); House v. Combined Ins. Co. of Am., 168 F.R.D. 236, 245-46 (N.D.
                       Iowa 1996). "Federal cases interpreting the Federal Rules of Civil
                       Procedure 'are strong persuasive authority, because the Nevada Rules of
                       Civil Procedure are based in large part upon their federal counterparts."
                       Exec. Mgmt., Ltd. v. Ticor Title Ins. Co., 118 Nev. 46, 53, 38 P.3d 872, 876
                       (2002) (quoting Las Vegas Novelty, Inc. v. Fernandez, 106 Nev. 113, 119,
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                 787 P.2d 772, 776 (1990)). NRCP 26(b)(4)(A)-(B) are nearly identical to
                 their federal counterparts, FRCP 26(b)(4)(A) and FRCP 26(b)(4)(D),
                             The Seventh Circuit Court of Appeals has held that an expert
                 who has been designated as a testifying expert witness and produced an
                 expert report cannot later be de-designated as a nontestifying expert and
                 thus avoid having the expert called to testify at trial or deposed.      See
                 Koenig, 557 F.3d at 744 ("A witness identified as a testimonial expert is
                 available to either side; such a person can't be transformed after the
                 report has been disclosed, and a deposition conducted, to the status of a
                 trial-preparation expert whose identity and views may be concealed."); see
                 also Hartford Fire Ins. Co. v. Transgroup Express, Inc., 264 F.R.D. 382,
                 384 (N.D. Ill. 2009) ("The Seventh Circuit Court of Appeals has flatly
                 rejected the idea that an expert who has been designated as a testifying
                 expert witness and has produced an expert report can later be re-
                 designated as a non-testifying expert to avoid having the expert
                 deposed."). The Koenig court identified the disclosure of the expert report
                 as the time when "the opportunity to invoke confidentiality" ends,
                 suggesting that before that point, an expert witness may be de-designated.
                 557 F.3d at 744.
                             Similarly, the Eleventh Circuit Court of Appeals has ruled
                 that a designated testifying expert witness may not be de-designated and
                 regain the confidentiality protections of the federal counterpart to NRCP
                 26(b)(4)(B). Peterson, 81 F.3d at 1037-38 (citing Rubel v. Eli Lilly & Co.,
                 160 F.R.D. 458, 460-61 (S.D.N.Y. 1995)). However, the Eleventh Circuit
                 qualified its holding by stating that once an expert is de-designated, it is
                 at the discretion of the district court as to whether an opposing party may
                 depose or call the expert to testify. Id. at 1038 n.4.

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                            Thus, 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." House, 168 F.R.D. at 246. Rather, "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
                under [Federal Rule of Evidence] 403, [the federal counterpart to NRS
                48.035]." Id.
                            Such a standard takes into account the interests
                            [FRCP] 26 was designed to protect and those of
                            the party who originally hired the expert, to the
                            extent that party has not waived such an interest,
                            Rubel, 160 F.R.D. at 460 (party who hired expert
                            waived "free consultation" privilege by allowing
                            deposition of the expert), as well as taking into
                            account the peculiar prejudice that could arise if
                            the jury is informed that an expert presented by
                            one party was hired, then dropped, by the other
                            party.
                Id.
                            In applying this balancing test, 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. See, e.g., Peterson, 81 F.3d at 1037; Rubel, 160 F.R.D. at 460-
                61. Additionally, courts have considered 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," thus undermining the principle objective of FRCP 26.
                Ferguson, 189 F.R.D. at 409 (internal quotation omitted); see also FMC
                Corp. v. Vendo Co., 196 F. Supp. 2d 1023, 1048 (E.D. Cal. 2002) ("There is


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                  a strong policy against permitting a non-diligent party from free-riding off
                  the opponent's industry and diligence.").
                                  We agree with the federal courts and therefore hold that after
                  an expert report has been disclosed, a testifying expert witness cannot
                  regain the confidentiality protections of NRCP 26(b)(4)(B) by de-
                  designating that witness to the status of a nontestifying expert. After the
                  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 by a balancing of probative value against unfair
                  prejudice under NRS 48.035—for 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.
                            Evidence of opposing party's original retention is not admissible
                                  An additional issue surrounding the admission of testimony by
                  a de-designated expert is whether evidence of the opposing party's original
                  retention of the expert is admissible. Such evidence could "destroy
                  counsel's credibility in the eyes of the jury" because "Wurors unfamiliar
                  with the role of counsel in adversary proceedings might well assume that
                  plaintiffs counsel had suppressed evidence which he had an obligation to
                  offer."     Peterson, 81 F.3d at 1037 (internal quotations omitted). Some
                  federal courts that have faced this issue have indicated that such evidence
                  is not admissible because it is unfairly prejudicial to the party that
                  retained the expert. See id. at 1038 (holding that trial court's admission of
                  evidence regarding an expert's original retention was error, but harmless);
                  see also Agron v. Trs. of Columbia Univ., 176 F.R.D. 445, 452-53 (S.D.N.Y.
                  1997) (holding that a de-designated expert witness may be called to testify
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                as long as evidence of how he became involved in the case is excluded);
                House, 168 F.R.D. at 249 (holding the same). We agree with the federal
                courts and hold that in instances where a de-designated expert is allowed
                to be deposed or testify, evidence of that expert's original retention by the
                opposing party is inadmissible.
                      The district court abused its discretion
                            This court "review [s] a district court's decision to [allow]
                expert testimony for an abuse of discretion."    Leavitt v. Siems, 130 Nev.,
                Adv. Op. 54, 330 P.3d 1, 5 (2014).
                            In the interlocutory order, the district court stated that its
                decision was "based significantly on the fact that . . . Appel, prior to
                [Collins] de-designating him as an expert witness, had not performed [an
                NRCP] 35 examination on [McClendon]." (Emphasis omitted.) However,
                as we have stated above, the point at which an expert witness loses NRCP
                26(b)(4)(B) confidentiality protections is when an expert witness report is
                filed, not when a deposition is performed. Here, Collins had already filed
                Appel's expert report as well as two supplements before he attempted to
                de-designate Appel as an expert witness. Therefore, we hold that the
                district court abused its discretion by basing its decision on the fact that
                Appel had not yet been deposed.
                The error is harmless
                            When a moving party shows that an error is prejudicial, the
                error is not harmless and reversal may be appropriate.      Wyeth v. Rowatt,
                126 Nev. 446, 465, 244 P.3d 765, 778 (2010). "To establish that an error is
                prejudicial, the movant must show that the error affects the party's
                substantial rights so that, but for the alleged error, a different result
                might reasonably have been reached." Id. "[A]ppellant[ is] responsible for
                making an adequate appellate record," and when "appellant fails to
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                 include necessary documentation in the record, we necessarily presume
                 that the missing portion supports the district court's decision."    Cuzze v.
                 Univ. & Cmty. Coll. Sys. of Nev.,    123 Nev. 598, 603, 172 P.3d 131, 135
                 (2007).
                             McClendon failed to include a trial transcript. Therefore, it is
                 impossible to know to what extent, if any, McClendon was prejudiced by
                 the district court's order. Nor does McClendon provide insight in her brief
                 indicating that she was prejudiced by the decision. Therefore, we hold
                 that the district court's error was harmless.
                                                CONCLUSION
                             The party who designated the testifying expert witness may
                 de-designate that witness to the status of a nontestifying expert witness
                 and regain the confidentiality protections of NRCP 26(b)(4)(B) prior to the
                 disclosure of an expert witness report. After an expert witness report has
                 been disclosed, however, the expert witness may not regain NRCP
                 26(b)(4)(B)'s protections, and the district court has the discretion to allow
                 the witness to be deposed or called to testify at trial by an opposing party.
                 Furthermore, in instances where a de-designated expert is allowed to be
                 deposed or testify, evidence of that expert's original retention by the
                 opposing party is inadmissible.
                             Because the district court appears to have improperly based
                 its decision on the fact that Appel had not yet been deposed, it abused its
                 discretion. However, because Collins has not provided a sufficient record
                 for us to determine whether the district court's error was prejudicial, we




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                hold that it was harmless. Therefore, we affirm the district court's order
                and the final judgment.



                                                                                 J.



                We concur:


                     /                         J.
                Hardesty


                                               J.
                Pickering




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