JA CYNTA MCCLENDON, 

Appellant, 

vs. 

DIANE COLLINS, 

Respondent. 

No. 66473 

FILED 

APR 2 1 2016 

CL 

E K LINDEMAN ar 

A kw. A. 

DE • ERK 

132 Nev., Advance Opinion 2.84 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

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 redesignated 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 dedesignating 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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J. 

Pickering 

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

and the final judgment. 

We concur: 

/ J. 

Hardesty 

J. 

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