What are the Trial Rules on Expert Witnesses in Las Vegas Personal Injury Cases?



When someone is injured in an accident and suffers ongoing injury, sometimes your Las Vegas Personal Injury Attorney and opposing side may both hire doctors to serve as expert witnesses. But, what happens when one side hires an expert, yet later decides they don’t want to call their expert at trial? The Nevada Supreme Court has said that it is ultimately up to the trial court to decide this issue. See McClendon v. Collins,132 Nev. Adv. Op. No. 28 (2016).

In McClendon, Diane Collins rear-ended a car driven by Ja Cynta McClendon. Collins’ defense lawyer designated an expert medical physician, Dr. Eugene Appel, who provided an expert witness report to back up his opinions. Collins’ defense lawyer later decided to withdraw Dr. Appel from their witness list. Surprisingly, McClendon’s lawyer wanted to use Dr. Appel as her own expert witness! The trial court wouldn’t allow this expert swap. The jury ultimately found that McClendon wasn’t injured by any fault of Collins. Unhappy with the result at trial, her lawyer appealed the decision to the Nevada high court.

In looking at the case after trial, the Nevada Supreme Court decided that such a “de-designated” expert could have their deposition taken or be called to testify at trial by an opposing party. But, whether this would be allowed, would rest on a case by case analysis, done by the trial court. The court went on to say that there is no 'entitlement' of the opposing party to depose or use another party's expert at trial." House, 168 F.R.D. at 246. Id.

The McClendon Court was also clear in saying just because a stricken witness may be called as a witness in trial or at a deposition, doesn’t mean the other side can adopt the other party’s expert as their own. The Court said "[t]here is a strong policy against permitting a non-diligent party from free-riding off the opponent's industry and diligence." Of course, your experienced Las Vegas Personal Injury Attorney will make sure that if an expert is needed, they will have their own expert timely disclosed to the other side. 

An additional issue in this situation is whether evidence of the opposing party's “dropping” of their original expert is admissible evidence at trial. Notably, the Nevada Supreme Court said that juries are NOT allowed to hear this evidence. The Court reasoned that such evidence could "destroy counsel's credibility in the eyes of the jury" because "[j]urors unfamiliar with the role of counsel in adversary proceedings might well assume that …. counsel had suppressed evidence which he had an obligation to offer." Peterson, 81 F.3d at 1037. If you have questions about expert witness designations, talk to your Las Vegas Personal Injury Attorney about this important topic.

Next time, we will talk about serving foreign corporations with lawsuit documents.

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