No. 72879 

FILS 

SEP 2 7 2018 

134 Nev., Advance Opinion 75 

IN THE COURT OF APPEALS OF THE STATE OF NEVADA 

ANGELA DECHAMBEAU; AND JEANPAUL DECHAMBEAU, BOTH 

INDIVIDUALLY AND AS SPECIAL 

ADMINISTRATORS OF THE ESTATE 

OF NEIL DECHAMBEAU, 

Appellants, 

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. 

)6 -610Z24-1 
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deemed to have been entirely superseded by the new order.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. 

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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 

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 OaklandAlameda 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 

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2The 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 

reasonably have been reached" (internal quotation marks omitted)). 

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J. 

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: 

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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. 

Silver 

, C.J. 

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