200 lewis avenue las vegas, nevada 89155-2377 fax: (702) … · 2019. 11. 26. · pled bonnie a....

PLED

BONNIE A. BULLA DISCOVERY COMMISSIONER

EIGHTH JUDICIAL DISTRICT COURT REGIONAL JUSTICE CENTER

200 LEWIS AVENUE LAS VEGAS, NEVADA 89155-2377

(702) 671-4486 FAX: (702) 671-4485

January 31, 2012

The Justices of the Nevada Supreme Court c/o Tracie K. Lindeman Clerk of the Supreme Court 201 South Carson St., Suite 201 Carson City, Nevada 89701

Re: ADKT 0472; Proposed Amendments to NRCP 16.1(a)(2)

To the Justices of the Nevada Supreme Court:

The purpose of this correspondence is to provide a summary of the comments and concerns regarding ADKT 0472, which I received following the public hearing on December 5, 2011. As a preliminary matter, as instructed, I circulated a copy of ADKT 0472 to the Judges of the Eighth Judicial District Court, soliciting their input. Please see memorandum dated December 15, 2011, attached hereto. In addition, as indicated in the memorandum, ADKT 0472 was discussed at the January meetings of the Civil Bench Bar and the Civil Judges.

The following is a summary of the comments and concerns I received:

1. The proposed language of NRCP 16.1 (a)(2)(B) that requires disclosure of the qualifications and compensation of a non-retained expert is subject to interpretation. The proposed amendments should be revised to include language that production of a resume or curriculum vitae satisfies the "qualifications" requirement and production of a fee schedule satisfies the

is.- oc5673

The Justices of the Nevada Supreme Court c/o Tracie K. Lindeman January 31, 2012

"compensation" requirement. If the suggested language is included, the rule would read as follows:

"Unless otherwise stipulated or ordered by the Court, if the witness is not required to provide a written report, the initial disclosure must state the subject matter on which the witness is expected to present evidence under NRS 50.275. 50.287 and 50.305; a summary of the facts and opinions to which the witness is expected to testify; the qualifications of that witness to present evidence under NRS 50.275, 50.285 and 50.305, which is satisfied by the production of a resume or curriculum vitae; and the compensation of the witness for providing testimony at deposition and trial, which is satisfied by production of a fee schedule." (Emphasis added.)

Alternatively, the above language could be included in a Drafter's Note to the adoption of the amendments to clarify the intent of the requirements.

2. NRCP 16.1(a)(2)(B) should also include language that "the basis for the non-retained expert's opinions" must be disclosed. It should be noted that the Federal Rules of Civil Procedure do not mandate this requirement. If this language is included, the rule would read as follows:

"Unless otherwise stipulated or ordered by the Court, if the witness is not required to provide a written report, the initial disclosure must state the subject matter on which the witness is expected to present evidence under NRS 50.275, 50.285 and 50.305; a summary of the facts and opinions and the basis for those opinions to which the witness is expected to testify; the qualifications of that witness to present evidence under NRS 50.275, 50.285 and 50.305; and the compensation of the witness for providing testimony deposition and trial."


On the other hand, concern was expressed that including the above-language will increase the costs of preparing a non-retained expert disclosure. Requiring an attorney to identify "the basis for" the non-retained expert's opinions is the equivalent of having to prepare a report. This defeats the purpose of the amendments, which is to promote disclosure of a non-retained expert's expected testimony in a cost-effective manner. This is a particularly important consideration for the de novo cases from the arbitration program.

3. The Las Vegas Defense Lawyers filed written comments on December 2, 2011 to ADKT 0472. George Bochanis, Esq. as the representative of the Nevada Justice Association expressed concerns about certain of these comments at the Bench Bar Meeting. Specifically, the Las Vegas Defense Lawyer's comments suggest that treating physicians can be "turned into" retained experts. This may occur if the physicians review materials outside their medical charts or if lawyers refer their clients to physicians for treatment. Under these circumstances, treating physicians, who are non-retained experts, will be required to prepare reports. This also defeats the purpose of promoting disclosure without increasing costs. If treating physicians are required to prepare reports in smaller personal injuries cases, litigating these cases will become cost-prohibitive. J.R. Crockett, Jr., Esq., also spoke at the Bench Bar Meeting regarding his concerns about added costs (see number 4).

Following the Bench Bar Meeting, I met with Mr. Crockett and Mr. Bochanis to discuss their concerns. Mr. Bochanis suggested clarifying the proposed amendments to NRCP 16.1. Therefore, set forth below are proposed comments to the amendments that may be included in a Drafter's Note:

Comment One: A treating physician does not become a retained expert because the patient was referred to the physician by an attorney for treatment.


Comment Two: A treating physician does not become a retained expert because he or she reviews documents outside of his or her medical chart, whether or not they are provided by an attorney, as long as the documents and opinions based on these documents are disclosed in accordance with NRCP 16.1(a)(2)(B).

Comment Three: An appropriate disclosure under the rule may include that the treating physician will testify in accordance with his or her medical chart, whether or not the records contained therein are prepared by the physician or by another healthcare provider.

The above comments will preserve the integrity of the amendments to NRCP 16.1(a)(2)(B), without opening the door for the lawyers to require expert reports from treating physicians. It should be noted that there are circumstances where a treating physician will be required to prepare a report, such as when the physician intends to offer testimony about the applicable standard of care in a medical malpractice case.

4. A general concern was expressed by several attorneys that adoption of the proposed amendments to NRCP 16.1(a)(2) will increase the costs of litigation. Mr. Crockett explained at the Bench Bar Meeting, even if reports are not required, the disclosure requirements for non-retained experts will necessarily require attorneys to confer with these experts in order to confirm their opinions before disclosing them in order to ensure compliance with NRCP 11. Therefore, the amendments will increase the costs of disclosing non-retained experts from the present system. Please see written comments from Mr. Crockett attached hereto.

Several District Court Judges have also expressed similar concerns. Specifically, Judges Ronald J. Israel, Gloria Sturman and Timothy C. Williams, remain concerned about the "unintended consequences" of the amendments, including increasing litigation costs. Please see email from Judges Israel, Sturman and Williams attached hereto. These Judges have also recommended


extending the time for public comment and discussion on the amendments.

On the other hand, without a more meaningful disclosure for non-retained experts, the only current option is to depose the experts, which is costly. Depositions of treating physicians are necessary because treating physicians are not able to speak with opposing counsel without an authorization. 1 Not surprisingly, these authorizations are rarely given.

5. At the Bench Bar Meeting, Judge Williams and Marisa C. Guarino, Esq., also suggested that expert disclosures be staggered with plaintiff's disclosing first and defendant's disclosing second. The simultaneous disclosure of experts was adopted in the amendments to NRCP 16.1, effective January 1, 2005. The Commissioners, when submitting the proposed amendments to NRCP 16.1(a)(2), did not consider staggering expert disclosures. If this remains a concern, perhaps another committee can be formulated to address the issue. 2

6. Finally, at the Bench Bar Meeting Ms. Guarino expressed concern that the definition of rebuttal expert is too restrictive and may preclude a legitimate a "rebuttal expert" from being disclosed. This is because of the "guesswork" involved in anticipating which experts will be identified in the opposing party's case-in-chief case. Please see comments from Hall, Jaffe & Clayton, LLP attached hereto for further analysis on this issue. It should be noted that the scope of rebuttal testimony as contained in the proposed amendments reflects current case law trends.

1 NRS 49.245, which sets forth the exceptions to the physician patient privilege, only permits disclosure of relevant written medical or hospital records, and does not permit oral communications. 2 It should be noted that the District Court Judges and Commissioners will stagger expert disclosure deadlines where appropriate.

The Justices of the Nevada Supreme Court c/o Trade K. Lindeman January 31, 2012

I hope the information set forth herein will be of assistance to the Court. Thank you for considering the proposed amendments to NRCP 16.1(a)(2).

Sincerely,

BONNIE A. BULLA DISCOVERY COMMISSIONER Eighth Judicial District Court

BAB/ms Attachments

cc: Honorable Chief Judge Jennifer P. Togliatti Honorable Civil Presiding Judge Elizabeth Gonzalez Honorable Judge Timothy C. Williams Honorable Judge Gloria J. Sturman Honorable Judge Ronald J. Israel Honorable Chief Judge David A. Hardy Commissioner Chris A. Beecroft Commissioner Wesley M. Ayres George Bochanis, Esq. J.R. Crockett, Jr., Esq. Marisa C. Guarino, Esq.

Memorandum

To: The Honorable Chief Judge Jennifer Togliatti; Honorable Judge Kenneth Cory; Honorable Judge Valoria Vega; Honorable Judge Douglas Herndon; Honorable Judge Kathy Hardcastle; Honorable Judge Carolyn Ellsworth; Honorable Judge Elissa F. Cadish; Honorable Judge Linda Marie Bell; Honorable Judge Douglas Smith; Honorable Judge Jessie Walsh; Honorable Judge Michelle Leavitt; Honorable Judge Mark Denton; Honorable Judge Don Mosley; Honorable Judge Abbi Silver; Honorable Judge Timothy C. Williams; Honorable Judge Michael P. Villani; Honorable Judge David Barker; Honorable Judge Alan R. Earl; Honorable Judge Jerome T. Tao; Honorable Judge Valeria Adair; Honorable Judge Susan H. Johnson; Honorable Judge Stephanie A. Miley; Honorable Judge James Bixler; Honorable Judge Kathleen Delaney; Honorable Judge Gloria J. Sturman; Honorable Judge Nancy L. Allf; Honorable Judge Ronald J. Israel; Honorable Judge Susan W. Scann; Honorable Judge Jerry A. Wiese II; Honorable Judge Joanna S. Kishner ; and, Honorable Judge Rob Bare

From: The Honorable Chief Civil Judge Elizabeth Gonzalez an Discovery Commissioner Bonnie A. BullaW

Re: ADKT 0472

Date: December 15, 2011

cc: Commissioner Wesley M. Ayres; and Commissioner Chris Beecroft, Jr.

On December 5, 2011, the Nevada Supreme Court heard public comment on ADKT 0472. ADKT 0472 recommends certain revisions to expert disclosure requirements contained in NRCP 16.1, the version which governs civil proceedings (not domestic).

Following the hearing, the Nevada Supreme Court decided to extend public comment on ADKT 0472 through January 31, 2012. In doing so, the Nevada Supreme Court also wanted to ensure that the District Court Judges had sufficient opportunity to provide comments to the proposed revisions. The Nevada Supreme Court directed Commissioner Bulla to solicit comments from the Judges of the Eighth Judicial District Court, and Commissioner Ayres to solicit comments from the Judges of the Second Judicial District Court.

A copy of ADKT 0472 is attached for your review. Please feel free to provide your comments directly to Commissioners Bulla and Beecroft. Further, ADKT 0472 will be discussed at the Bench Bar meeting on January 19, 2012, at noon, and the Civil Judges meeting on January 25, 2012, at noon.

Thank you for your consideration of ADKT 0472.

J.R. Crockett, Jr. Certified Civil Trial Advocate

Dip/ornate National Board of Trial Advocacy

Crockett & Myers Attorneys at Law

January 25, 2012

Honorable Bonnie Bulla Discovery Commissioner Eighth Judicial District Court Regional Justice Center 200 Lewis Avenue Las Vegas, NV 89155

Tracie K. Lindeman Nevada Supreme Court Clerk 201 South Carson Street Carson City, NV 89701

RE: In the matter of the proposed amendments to NRCP 16.1 (a)(2) ADKT 0472

Dear Commissioner Bulla and Clerk Lindeman:

On January 19, 2012, I attended the Civil Bench Bar Committee meeting held in Department 17's courtroom. After Commissioner Bulla provided some opening remarks regarding the Petition to amend NRCP 16.1 (a)(2), the gallery was asked if there were any comments or questions and I was afforded the opportunity to address my remarks to those in attendance, specifically regarding the additional disclosure requirements proposed regarding treating physicians.

At the conclusion of my brief remarks, I was asked by one of the District Court Judges in attendance, the Honorable Kenneth Cory, if I would summarize my oral remarks in a written supplement and send it in to Supreme Court Clerk Lindeman and to Discovery Commissioner Bulla and I agreed to do that. This written communication represents the summary of my oral remarks.

HELPING INJURED PEOPLE FOR OVER 30 YEARS

700 South Third Street Las Vegas, Nevada 89101 (702) 382-6711 Toll Free (866) 382-6711 Fax (702) 384-8102

a

January 25, 2012 ADKT 0472 Rule 16.1 Page 2 of 4

Substantial Increase In Costs for Plaintiffs

The proposed changes include a requirement regard treating physicians that would require plaintiff's counsel to prepare and submit an initial expert witness disclosure regarding all treating physicians that would provide "the subject matter on which the witness is expected to present evidence [as an expert] .... a summary of the facts and opinions to which the witness is expected to testify; the qualification of that witness to present [expert testimony] and the compensation of the witness for providing testimony at deposition and trial." 1

As a practitioner exclusively handling plaintiff's personal injury work since 1977 I was immediately struck by the substantial increase in non-recoverable costs this would create for every plaintiff in every case in litigation. In order to comply with Rule 11, a plaintiff's lawyer would have to confer with each treating physician for about fifteen minutes in order to be able to provide a proper disclosure. After all, the disclosure requires a description of the "subject matter on which the witness is expected to present evidence ... a summary of the facts and opinions to which the witness is expected to testify" and the witnesses qualifications and fees for same. No lawyer could do this without first conferring with the treating physician. Treating physicians value their time and rightly so. I told those in attendance that it has been my experience that a lawyer must pay at least $500 for a fifteen minute consult with a physician and that fifteen minutes is the minimum a physician will bill for. Accordingly, I said at the hearing, this will add a minimum of $500 in unrecoverable, nontaxable costs for every treating physician a plaintiff has.

A separate and equally problematic stumbling block is that some treating physicians will not confer or consult, under any circumstance, preferring to keep themselves out of the medico legal process as long as possible — knowing that ultimately they will be required to give their deposition or testify live at trial. In such circumstances, there is simply no way to get the information that the proposed amendment would require for disclosure.

1 ADKT 472 Exhibit A, page 8, "Proposed Rules Changes."


It was also my opinion based upon 35 years of litigating these cases in court in the Eighth District Court, that the real solution to the problem that this proposed rule change attempts to address is simply better lawyer advocacy on the part of the defendant. As explained at the hearing and in the written materials, the defense bar takes the position that they are being sandbagged in court with treating physicians going way beyond testimony reasonably to be anticipated from their medical records and referencing additional materials that have been supplied to them in the form of IME reports, depositions of IME doctors, records review reports from the defense and additional collateral materials that go outside the treating physician's own medical chart. It is my position and I so stated at the hearing on January 19' that competent lawyer advocacy would be more than adequate to address the supposed problem.

A treating physician attempting to testify in court to opinions and facts that extend far beyond the physician's medical chart and interactions with the patient, could be very effectively cross-examined by defense counsel simply pointing out through the question and answer process that the treating physician who was supposedly called to court to testify about the reasonableness and necessity of the medical care that has been received and may be required in the future, has gone beyond the scope of being simply a treating physician by additionally reviewing materials and depositions and other medical reports and been compensated to do so for the purposes of becoming an expert advocate in the courtroom. It seems to me and I so stated at the hearing, that this would effectively completely disassemble and discredit a treating physician who is trying to step outside the role of being a treating physician and becoming a forensic expert for the first time at trial.

I believe that the proposed rule amendment is an example of what can happen when the best of intentions bump up against the reality of practice in the trenches. The inherent costs that would be inflicted upon all plaintiffs in such cases would put an onerous and one-sided cost burden on the plaintiff litigant when the real solution simply lies in better advocacy on the part of the defense bar.

I realize that these comments come late since the original Order scheduling public hearing and requesting public comment provided that written comments were to be received no later than December 1, 2011.


However, I was not aware of the public hearing in Las Vegas scheduled for January 19, 2012 until the day before and because I was able to attend and then was asked to provide a written summary of my oral remarks, I wanted to comply with the request of Judge Ken Cory. I also am ready and willing to provide any additional information if requested. Thank you for taking these remarks into consideration.

Sincerely yours,

CROCIT iC;IYERS

p e KETT, JR.

JRC:jrc

RILEY A, CLAYTC)N

STEVEN I JAFFE

MICHAEL R. HALL '

KEVIN KING

MARISA C. GUARINO

ASH LIE L SURUR

JAMES HARPER

JACOB SMITH DAVID GLUTH

TAYLOR. SELIM

PHIL SU

PETRA AMBROSE . RONALD 0. GREEN F.

RRLANNA ISSURDUTT

JACOB B. LEE JEREMY M. WELLAND

Of Counsel

!OK:HAD_ SHANNON

MONTE 1-IA11'

,—.0,01cmWmAomm - Ake Yecrrod 1,1,,,v

A. • Attt kAnoni VA3comin

S-AhrOAAA,AllAUml,

Fax from : 7023164114 01/25/12 16:48 pg.:

HALL JAFFE CLAYTON PAGE 02./03 • 01/25/2012 16:47 7023164114

7455 West Washington Avenue, Suite 460 0 Las Vegas, Nevada. 89128 Telephone 702.316.4111 a Facsimile 702.316.4114

January 25, 2012

ia,acsirnile: (7O2) 671-4i48 Hon. Bonnie Bulla Discovery Commissioner Eighth Judicial District Court 200 Lewis Avenue, 5t h Fl. Las Vegas, Nevada 89101

Re: Additional Public Commentary on ADKT 0472

Dear Commissioner Bulla:

Thank you for your time and your participation in the Bench/Bar meeting that took place on January 18, 2012. Having heard the comments made by various members of the local bar, we appreciate the opportunity to submit our position on this topic. Therefore, please allow this letter to serve as additional public commentary concerning the proposed rule change encompassed by ADKT 0472. We understand that you will forward written public commentary of this nature on to the Nevada Supreme Court for further consideration in connection with ADKT 0472. If this is not the case and further action is required to present this commentary to the Nevada Supreme Court, please let us know so we an take the necessary steps.

Although the majority of the comments at the meeting were presented from the plaintiff bar perspective, we believe that there are other considerations, from the defense bar perspective, that should be considered before A,DKT 0472 becomes finalized. Primarily, our comments address the need for equal application of the rule to both the plaintiff and the defendant, thereby protecting the due process and other rights of both parties, as opposed to merely "protecting plaintiffs," as some representatives stated at the meeting.

Trea Ada skILo_te_sti • as ex er_bL. ers nal treatment of a patignIALmid be designated as experts required to produce ajLexnert witness Leport..p.ursuant to tbe current guidelings.

As you know, plaintiffs often rely upon the testimony of their treating physicians at the time of trial. We believe that suclli testimony should be limited to the physician's own personal

1.

HALL JAFFE CLAYTON PAGE 03/09 01/ -25/2012 16:47 7023164114

Re: ADKT 0472 Hon. Bonnie Bulla Discovery Commissioner January 25, 2012 Page 2

treatment of the patient, any diagnostic testing that th.e patient undenvent, the prognosis, and the resulting medical bills. Any other testimony necessarily goes well beyond the physician's own personal treatment of the patient and transforms that physician's testimony into pure expert - witness testimony.

A. Curtent 8.plewcUPLas.t_icerriai b Pj.oposecl Rule Champ Preserves the StatItaDuo

Often times, these treating physicians are given large amounts of documentation and asked to opine about basically any and all topics deemed necessary to further the plaintiff's case at the time of trial - all without having to prepare an expert witness report. Many times, these treating physicians are not given the other records (which often include everything from police reports, deposition. transcripts of the parties and other physicians, written discovery responses, etc.) until after they have been deposed by the defense. The additional information is given under the guise of asking the treating physician if the information changes his or her diagnostic opinion, on causation, or changes his or her prognosis.

This results in a true "trial by ambush" situation for the defense. It is no answer for .a plaintiff to say they did not realiae that a treating physician was going to have his opinion criticized until the defendant produced an expert, as the plaintiff needs to anticipate defenses, much as the defense needs to anticipate claims. In that case, as soon as a defense expert criticizes the treating physician and the plaintiff determines that he or she wants the treating physician's opinion rehabilitated in order to address "new" evidence, the treating physician needs to then be labeled a rebuttal, expert and a held accountable as an expert pursuant to eh apoplicable expert disclosure rules. ,Presently, this is not occurring.

Although it was specifically stated that the new rule seeks to preclude "trial by ambush," the present broad protections afforded treating physicians allows for nothing short of that ambush. Codifying a rule which again exempts treating physicians from expert disclosure rules in situations where the physician seeks to testify about topics beyond their own personal treatment of the patient will only further this result. The treating physicians who seek to testify about topics beyond their own personal treatment of the patient unequivocally assume the role of a retained expert.

There can be no dispute that they exceed the confines of their personal treatment of the patient when these physicians, who have essentially been converted into treating experts, testify about police reports, deposition transcripts, written discovery responses, and any other documents beyond their clinical chart. In those instances where a treating .physician receives materials like those listed above and they are asked to testify beyond their own personal

01/25/12 16:48 Pg: 3 Fax from : 7023164114

HALL JAFFE CLAYTON PAGE 04/09 01/25/2012 16:47 7023164114

Re: ADKT 0472 Hon. Bonnie.E3ulla Discovery Commissioner January 25, 2012 Page 3

treatment of the patient, any diagnostic testing to which they referred the patient, their prognosis, and their medical, bills, it only makes sense that the physician must be labeled an expert and that they be required to produce an expert witness report and satisfy all of the current guidelines. In the absence of such a requirement, the defense will continue to be subjected to "trial by ambush" when it comes to these treating experts and the new rule will likely further this result. At the very least, the new rule will do nothing to discourage this tactic and its application will protect the plaintiff at the expense and to the detriment of the defendant, without due process of law for the defendant.

Maintainiing_EquiV of cnsts.

The comments about the costs associated with treating experts being required to prepare expert reports are completely disingenuous. Upon hearing those comments, the question arises: Why is it okay to require a defendant to prepare costly expert witness reports while providing an. exemption to the rule for a plaintiffs treating experts?. Both the plaintiff and the defendant have the right to learn what the treating experts opinions and conclusions are with being forced to depose each and. every one - at great expense. The cost of a single deposition of a treating physician is almost always going to exceed the $2,000 figure referenced by the plaintiff bar at the meeting. As you kn,ow, some experts charge in excess of that sum for their appearance fee, alone. To make matters worse, a. complex case, those costs must be multiplied several times over, depending on the number of treating experts the plaintiff either discloses or seeks to have testify at trial. (assuming they actually advise the defense who they intend to call to make discovery pointed, and efficient, which rarely occurs).

In some larger cases, plaintiff's counsel, typically require their client's treating expert to prepare a records review report in which they review other physicians' medical and billing records, deposition transcripts, expert reports, police reports, discovery responses, and any and all other litigation documents, and then set forth their opinions, and conclusions. Often times, the plaintiff bar refers to these physicians as "super does." In those instances, a report is generated anyway, illustrating the transpareley of the cost prohibition argument advanced by the plaintiff bar. instituting an initial, expert report requirement for these treating experts would not result in any increase in the costs of litigation because plaintiff counsel is already incurring those costs.

At the meeting, commentary from the plaintiff bar suggested that the cost of obtaining such reports was between $200 and $2,000 and it was represented that such costs were simply too much for the plaintiff bar to bear. Without debating the accuracy of those estimates, it is uncommon (if not unheard of) for a defense expert to charge less than $2,000 to review all documents and materials and render a report pursuant to the current expert report guidelines. If $2,000 is cost prohibitive for the plaintiff, the fees the defendant is required to incur, which are multiples of $2,000, would be far :more cost prohibitive, particularly when applied so uniformly

01/25/12 16:48 Pg: 4 Fax from : 7023164114

HALL JAFFE CLAYTON PAGE 05/09 U1/25/2E112 16:47 7023164114

Re: ADKT 0472 l-ion. Bonnie Bulla Discovery Commissioner January 25, 2012 Page 4

in cases. Yet, the commentary affords no consideration to the defendant who is currently required to guess at which experts may be required and which mustoften times - produce multiple expert witness reports at substattial cost, guessing where the plaintiff might go, under the mistaken guise of being forced to anticipate such. areas of required expertise.

Treating experts already spent at least some portion of the time examining the plaintiff. The additional, records provided by plaintiff's counsel afford the treating physicians unfettered access to the plaintiff, and potentially allow two years before filing the lawsuit, during which time they administer treatment and formulate opinions. Consequently, the treating expert should be able to prepare a. cost effective initial expert report quite easily. In. comparison, the defense expert has limited or n.o access to the plaintiff (thanks to the ever expanding list of unilateral "demands" and "pre-conditions" placed on independent medical examinations by the plaintiff bar), and has only a limited amount of time in which to obtain the records, review the records, develop opinions, and generate 0. report. Given these points, it is suggested that the cost prohibition arguments are meaningless when one considers the costs and expenses that each. and every defendant is already required to incur.

In the event that a plaintiff wants to offer expert opinion testimony by a treating physician which exceeds the physician's own personal treatment of the patient, any diagnostic testing for which the patient was referred, the prognosis, and the resulting medical bills, then the rule must require that such treating experts be required to prepare and disclose initial expert witness reports, just as any defense expert would be required to do. When the plaintiffs attorney asks the treating physician to develop opinions after having been provided the defendant's expert witness disclosures, the treating physician should be required to be listed as a "rebuttal expert" with a report produced, and be required to abide. by all expert disclosure rules, Doing So would ensure that the parties are placed on more equal footing and promote and protect the rights of ,1.)oth parties to a fair and impartial trial,'

2. Duprocess reiresthat jnti ff*nd defendant disclose their claims, damages,, and de ' nses at tlf le outset of tileag.,snrcatiaccuatel. determine what ex_pdsl_ j_,vill be required to proseculeidefend the case.

The proposed rule requiring a party to "reasonably anticipate the experts" in a case is unworkable and prejudicial to the party who does not carry the burden of proof. Under the

Of course, a plaintiff may alsc; elect to forego the need to disclose expert reports for each treating provider by limiting the treating provider's testimony to the information derived from their own personal treatment of the patient and nothing more. A Plaintiff weuld still have the option of selecting one or more treating providers to serve as treating experts, thereby limiting the number of expert reports that would need to be prepared by treating providers.

01/25/12 16:48 Pg : 5 Fax from : 7023164114

HALL JAFFE CLAYTON PAGE 1bi U1 01/25/2012 16:47 7023164114

Re: ADKT 0472 Hon. Bonnie Duna Discovery Commissioner January 25, 2012 Page 5

current system, a plaintiff is required to disclose a computation of damages which may shed some light of the nature of the claims for damages. Conversely, neither does a requirement exist that a plaintiff designate exactly what claims and damages they intend to assert, nor is there a requirement that a plaintiff identify the specific injury or body part that they intend .to seek recovery for in the lawsuit, The current system requires the defendant to essentially "guess" what claims are being asserted, This unfairly shifts the burden of proof, violating the due process clause.

From. the defendant's perspective, they must guess correctly when, it comes to the selection and retention, of experts and the disclosure of expert witness reports. As indicated in the Memorandum, an incorrect "guess" could result in not disclosing an initial expert and then being forced to disclose a "rebuttal expert report" - which . could very well lead to the exclusion of that expert and his or her opinions and conclusions - because the defense did not guess right. Undeniably, neither Nevada's nor the United States' Constitution limits due process rights to guesswork, and the Nevada Supreme Court should not seek to now impose that standard. •

An incorrect "guess" results in the defendant hiring an expert and making an expert disclosure on a phantom subject, thereby wasting litigation resources and with drastic social consequences. This results in a real prejudice to the defendant who put the expert up as an initial expert because they were forced. to "reasonably anticipate a plaintiff's claim." There is no basis to even force the defense to incur such a risk and a cost, when more practical options exist, comporting with due process.

Many times, Complaints are drafted and filed without any specific cause(s) of action delineated. This can make it difficult to tell exactly what a plaintiff even alleges. Similarly, in the absence of a requirement that a plaintiff state with specificity which claims they are asserting and which specific injury or body part they are seeking recovery for, it can be difficult to tell. What claims or damages a plaintiff will be pursuing as the case progresses. Obviously, many injuries and claim.s are clear, so this should not be interpreted as the defense being coy. Nevertheless, while the comments at the meeting indicated that written discovery should. be used to flesh out these details, pragmatically, such attempts are often met with great resistance by the plaintiff. Often times, responses are replete with objections which state, among other things, that the request is premature and calls for the provision of expert/medical opinions that the plaintiff is not qualified to offer. Other responses simply instruct th.e reader to "see the medical records" or "see the NRCP 16.1 disclosures," which are equally obstreperous and uninformative.

Future damages claims, in particular, are often hidden behind written discovery responses referring to a treating physician's vague prognosis which say something less than "plaintiff is fully healed, all symptoms are resolved., and no further care is required." This leaves the defendant in a quandary. The defendant is left to consider whether to take the treating

Fax from : 7023164114 01/25/12 16:49 pg: 6

HALL JAFFE CLAYTON PAGE 07/09

01/25/2012 16: 47 7023194114

Re: AOKT 0472 Hon. Bonnie Bulla Discovery Commissioner January 25, 2012 Page 6

physician's deposition, thereby potentially giving the plaintiff ideas about his or her case, or hope that the vague prognosis does not transfomi into something more substantial as the case nears trial.

It would be quite easy te• remedy the current situation by simply requiring the plaintiff to state with specificity Which claims they intend to assert and which injuries/darnages they intend to pursue, so that discovery can be pointed and direct. Doing so would enable the defense to accurately assess the nature a the claims being asserted and to retain and disclose the appropriate expert witness(es). Conversely, if the defendant must guess, based on notice pleadings of claims such as reduced employability, which the plaintiff subsequently abandons, then the defense needs the opportunity for redress and recovery of costs and fees incurred for what turns out to be the fool's errand put in place by the plaintiff.

Such a system would eliminate the guess work associated with the selection and retention of experts and the disclosure of their reports, and it would likely streamline the entire discovery process. It would also require the plaintiff to evaluate the case and, claims for damages early on • so as to fulfill their obligation to produce this information at the ECC. 2 This early evaluation of the case and claims would likely eliminate costly motions to compel based on deficient discovery responses described above, eliminate costly motions to strike experts due to "initial" versus "rebuttal" designations, and would even foster the potential early resolution of cases. Most importantly, such a system would ensure that both the plaintiff and the defendant receive equal. application of the rule, that the application of the rule is consistent, and that the parties know in advance what will trigger the application of the rule. Doing so will ensure that the parties' right to a full and fair trial on the merits is adequately protected and preserved, which is one of the - Court's primary functions. .

3. The rule must be a liet_p_p__ ar_p_tie .1 a one-sided standard.

In the event that the Court adopts the proposed rule, as set forth in ADKT 0472, it is suggested that safeguards will need to be implemented to ensure that the rule is applied equally to the plaintiff and the defendant in an unbiased manner. The only way to ensure that the rule is applied equally to both the plainta and the defendant is to impose the same guesswork requirements upon both parties.

2 Of course, plaintiff would need to supplement or amend the disclosures in a timely manner if new or additional information resulted in a change in the list of claims and damages to be presented at trial. The imposition of a time limit for such modifications, say ninety (90) days prior to the initial expert disclosure deadline, would ensure that the claims and damages are known sufficiently in advance of the initial expert deadline to allow ample. time for the selection and retention of experts and the disclosure of expert reports.

01/25/12 16:49 pg: 7 Fax from : 7023164114

HALL JAFFE CLAYTON FAkit UO1U7

01/25/2012 16:47 702:3164114

Re: ADKT 0472 Hon. Bonnie Duna Discovery Commissioner January 25, 2012 Page 7

Currently, the defendant is required to anticipate (in the absence of an early disclosure or designation by the plaintiff) the need for expert witness(es) based on the claims, disclosures, and discovery responses received from the plaintiff. Under a truly equal application of the rule, the plaintiff should be required to anticipate (again, in the absence of an early disclosure or . designation requirement) the need for expert witness(es) based on the affirmative defenses, disclosures, and discovery responses received from the defendant. Given that the plaintiff files a Complaint and the defendant files an Answer, complete with Affirmative Defenses (even though they have no affirmative burden of proof), the parties would be in the exact same position when it came to anticipating the need for expert witness(es).

If there were any doubt about the need for expert witn.ess(es) by either party, they would be free to conduct written discovery and to take depositions in order to flesh out those issues, which is what the defendant is already required to do. If the guesswork obligation of the proposed rule becomes adopted, then this must be evenhandedly applied to both sides simultaneously. We do not endorse this system; however, if the court adopts it, then we urge equal application of it.

While this system may seem harsh, this is way that the current rule is often applied to the defendant The implementation of the above safeguards would place the parties in exact parity. Such safeguards would promote the equal and unbiased application of the rule.

4. TheJmpemeitatjonofastad Witness disclosure would eliminate Anot all, of the above concerns i a more ftmcfona

gxpert discloiuresystemi.

A good deal of the discovery disputes and resulting motion practice concerning expert witnesses could be avoided if the Court would implement a staged expert witness disclosure system. Under such a system, the plaintiff, the party who carries the burden of proof at the time of trial, would be responsible for initially disclosing the expert witness(es) deemed necessary to prosecute its claims. If the parties had previously identified each and every claim, injury, body part, and/or damage to be presented at the time of trial, as proposed above, there would be no - guess work involved. Regardless, the plaintiff is in a far better position to know which claims it will be presenting at the time of trial and will, be able toeasily determine the need for experts.

Once the plaintiff makes the initial disclosure, the defendant would have the opportunity - to examine those disclosures and make its own informed decisions about what expert witness(es) may be required to defend the case. There would eliminate all. guess work whatsoever. There would. be no disputes concerning whether a defendant's expert was an.initia.1 expert or a rebuttal, expert. The defendant Would never be forced into the position of retaining and disclosing an expert in an overabundance of caution, because there may be some potential a plaintiff may

01/25/12 16:49 p9: 8

Fax from : 7823164114

PA6E Urifuti 7E19'7:164114 HALL JAFFE CLAYTON

• O1/25/112 16:47

Very tru

16:49 pg: 9

Re: ADKT 0472 Hon. Bonnie Bulla Discovery Commissioner January 25, 2012 Page 8

assert a claim at the time of trial. Only those experts needed to rebut a plaintiff's initial expert disclosures would be required, thereby promoting the cost effective use of expert witnesses by both parties.

Finally, the plaintiff and the defendant would each have an opportunity to rebut the opposing party's expert witnesses. Under the rule, such rebuttals would be restricted to experts with the same general qualifications addressing the substance of the report they are rebutting. No new opinions or conclusions would be permitted so as to avoid the "trial by ambush" situation that was discussed above and at the meeting.

Such a system would operate much the same as the order of presentation at trial. It would streamline the entire expert witness procedure and eliminate unnecessary guess work and preclude both parties from spending money on experts that one or the other has deemed unnecessary to support their case at the time of trial.

While the comments at the meeting suggest that this type of arrangement may be agreed upon between the parties and approved by the Court, there is little or no guidance as to what kinds of cases could result in the use of a staged or staggered expert disclosure system. Regardless, the use of this type of system would likely reduce Or eliminate a substantial amount of consternation, guesswork, and motion practice concerning expert witnesses. The implementation of such a system . would be quite easy, as there would be no need for highly complicated rules that would require interpretation or additional detailed procedures. In fact, the parties could even use the same thirty day time frame between each expert disclosure that they currently use, resultin.g in no major changes from the current time frames. If the Court is already willing to approve . the use of a staged expert disclosure system in certain cases, it would appear that there is no good reason preventing the implementation of such a system in all cases.

In conclusion, we would like to thank you for taking time to consider this information and for relaying it the Nevada Supreme Court for further consideration. We would be happy to supplement our concerns if requested.

71. Xte, HALlt _AFFE '8i CLAYTON, LLP

01/25/12 ___ • -71;i 4V7/ 11 4

b.&TE SENT: • TIME SErrr! mfr. RECErVED! RECEIPT CONTIIIMED BY

FA6t.

011'25/2012 16:47 7023164114 HALL JAFFE CLAYTON

HALL JAFFE & CLAYTON, LLF 745 WEST WASHINGTON AVENUE

SUITE 460 LAS VEGAS, NEVADA 89128

(702) 316-4111 FAX (702) 316-4114

''' ......*—no■■■—•■•■.-•■■■■•■■■••■■■■■■••■••- ■--

FACSIMILE Thc information contained in this facsimile message is attorney privileged and confidential information intended onlythr the individual orcntity(ics)narnedbelovv. Mlle reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you arc hereby notified that, any dissemination, distribution or copying of this communication is strictly Prnnibited If You have received this communicationin error, please notify us by telephone (702) 316-4111, and return the original message to us at the above addrcss via US. Postal Service. Thank you.

PLEASE DELIVER THE FOLLOWING MATERIAL AS SOON AS FOSS1RLE

— TO: Bonnie Bulla - Discovery Commissioner

FROM: Hall Jaffe & Clayton,— LLP

FAX NUMBER: 671-4485

PHONE NUMBER:

NUMBER OF PAGES:

(including cover page)

DATE: 1/25/12 CLIENT 8z MATTER NUMBER: Public Commentary re: ADKT 0472

REQUESTOR: Olivia EXT: —1--

SEND BY: RUSH —

REMARKS: — — Please note the following correspondence.

Fax from : 7023164114 01/25/12 16:47 Pg: 1

of 2

Bulla, Bonnie

From: Israel, Ronald J

Sent: Monday, January 30, 2012 4:52 PM

To: Bulla, Bonnie

Subject: NRCP 16.1(a)(2)

To: Bonnie A. Bulla Discovery Commissioner

Re: Proposed Amendments to NRCP 16.1(a)(2)

Dear Commissioner Bulla:

Thank you for presenting the above proposed amendments to our recent Bench-Bar Meeting conducted at the Clark County Regional Justice Center.

We appreciate the difficulties presented to the commissioners on a daily basis regarding Nevada's expert disclosure rules and don't disagree with the proposed changes, but we are concerned with the potential for unintended consequences that were raised and discussed during the Bench-Bar Meeting as follows:

Mr. Crockett and Mr. Bochanis addressed the following potential problems which we would like to have addressed by both sides.

1. An attorney referral of a patient to a health care provider for treatment should not cause said health care provider to be designated as a "retained expert" thus requiring the production of an "expert report".

Such claimed exception to the proposed amendments to NRCP 16.1(a)(2) is problematic for many reasons. First, the determination of such a referral arguably violates attorney-client privilege. Further, a client referral to a physician is often a result of numerous factors, none of which involved any improper "business relationship". Such referrals often result from a client not having health insurance or having a health insurance plan that restricts the availability or amount of treatment received with certain specialty health care providers. The status of an individual's health insurance or lack of health insurance appears to violate Nevada's strict collateral source rule as stated in Proctor v. Castelletti, 112 Nev. 88, 911 P.2d 853 (1996).

Raising all of the above will also create litigation issues which are not currently present and will create additional time, costs and time of this Court and the Nevada Supreme Court in determining these issues in the future.

2. A non-retained treating physician should not become a "retained expert" under these amendments to NRCP 16.1, thus requiring an expert report be prepared by that physician, in a personal injury case, when said physician reviews other medical records, regardless of who provides such records, as long as such medical records are disclosed and any•conclusions based on the review of such medical records are disclosed. Requiring the preparation of such an expert report under NRCP 16.1(a)(2) would create a substantial

01/31/2012

To: Page 2 of 2

financial burden to be incurred by a Plaintiff in such case.

3. Requiring a non-retained treating physician to provide a "basis" of his or her opinions concerning causation, diagnosis or prognosis appears to be burdensome and excessive and would have the practical effect requiring every non-retained treating physician to prepare a report. This would create an additional financial burden upon every patient in paying for the preparation of such a report by every non-retained treating physician who renders such an opinion. This will also lead to additional litigation in the interpretation of such requirement. We note that Federal Rule of Civil Procedure 26, which these proposed amendments to NRCP 16.1(a)(2) are based upon, does not contain such language. We see no purpose or benefit of including this language within NRCP 16.1(a) (2).

We feel these issues are significant in nature and affect a large portion of civil litigation. As such we would like further comment by both sides as to the possible effects that these changes would have.

Thank you for the considerable time you have spent on this matter.

Very truly yours,

JUDGE RONALD J. ISRAEL

JUDGE GLORIA STURMAN

JUDGE TIMOTHY C. WILLIAMS

01/31/2012

200 lewis avenue las vegas, nevada 89155-2377 fax: (702) … · 2019. 11. 26. · pled bonnie a....

Documents