TORREMORO v. DIST. CT. (COMPTON) , 2022 NV 54 ( 2022 )

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IN THE SUPREME COURT OF THE STATE OF NEVADA
IRVING TORREMORO; AND KEOLIS No. 83596
TRANSIT SERVICES, LLC,
Petitioners,
vs.
THE EIGHTH JUDICIAL DISTRICT FILED
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF - JUL 07 202
CLARK; AND THE HONORABLE ia or bs
ERIKA D. BALLOU, DISTRICT JUDGE, CLER fee pi
Respondents, BY Ber DEPUTY CLERK
and
LAMONT COMPTON,
Real Party in Interest.
Original petition for a writ of mandamus challenging a district
court order allowing the substitution of an expert witness after discovery
had closed.
Petition denied.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, and Michael P. Lowry,
Las Vegas,
for Petitioners.
Maier Gutierrez & Associates and Joseph A. Gutierrez and Stephen G.
Clough, Las Vegas,
for Real Party in Interest.
BEFORE THE SUPREME COURT, HARDESTY, STIGLICH, and
HERNDON, Ju.
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OPINION
By the Court, HERNDON, J.:
In this opinion, we address the standard for substituting an
expert witness after the close of discovery. We clarify that NRCP 16(b)(4)’s
good cause standard for modifying a scheduling order provides the proper
standard for considering such motions and that the district court should
also apply any relevant local discovery rules, such as EDCR 2.35(a) in this
case, in its evaluation. Finally, we determine that the district court did not
abuse its discretion in modifying the scheduling order, reopening discovery,
and granting the motion to substitute.
FACTS AND PROCEDURAL HISTORY
Real party in interest Lamont Compton filed a complaint
against petitioners Irving Torremoro and Keolis Transit Services, LLC
(collectively, petitioners) for claims of negligence; respondeat superior; and
negligent hiring, training, and/or supervision after Compton sustained
significant injuries from a motor vehicle accident. Dr. Jeffrey Gross treated
Compton for his injuries and was designated as his retained medical expert.
The close of discovery, as stipulated by the parties, was scheduled for
March 7, 2020, and the trial was scheduled to begin on September 7, 2021.
Prior to the filing of Compton’s complaint, an indictment was
filed under seal against Dr. Gross in the United States District Court for
the Central District of California. Subsequently, the federal court entered
an order unsealing the indictment on May 18, 2018. On March 6, 2020,
before the close of discovery, Compton filed a motion in limine to exclude
evidence of Dr. Gross’ pending federal indictment being introduced at trial.
On August 5, 2020, the district court granted the motion in limine, finding
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that any testimony about Dr. Gross’ pending federal case would be more
prejudicial than probative.
Thereafter, Dr. Gross pleaded guilty to one felony count of
conspiracy. The plea was entered under seal, however, and not revealed
until over nine months later, on May 21, 2021, when the United States
Attorney for the Central District of California issued a press release
publicizing Dr. Gross’ conviction. Dr. Gross was sentenced to 15 months in
federal prison for accepting nearly $623,000 in bribes and kickbacks.
After learning of Dr. Gross’ conviction and prison sentence,
Compton, on June 29, 2021, filed a motion to substitute Dr. Raimundo Leon
for Dr. Gross pursuant to NRCP 37(c) and NRCP 16(b)(4). The district court
granted Compton’s motion, finding that
(1) the request to substitute Dr. Jeffrey Gross is
substantially justified; (2) the harm to Plaintiff is
outweighed by any harm to Defendants;
(3) Plaintiff had no knowledge of the status of the
criminal case as it was under seal until in or about
April 2021; (4) discovery shall be reopened for the
limited purpose of replacing Dr. Gross only; and
(5) no other discovery is permitted.
The trial was rescheduled to September 6, 2022. Petitioners subsequently
filed this petition for a writ of mandamus, requesting that this court direct
the district court to vacate its order.
DISCUSSION
We exercise our discretion to entertain the petition
A writ of mandamus is available to compel the performance of
an act that the law requires or to control an arbitrary or capricious exercise
of discretion. NRS 34.160; Int’ Game Tech., Inc. v. Second Judicial Dist.
Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). We generally do not
consider a petition for writ relief to address decisions to admit or exclude
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evidence or expert testimony, unless (1) “an important issue of law needs
clarification and public policy is served by this court’s invocation of its
original jurisdiction,” (2) “the issue is one of first impression and of
fundamental public importance,” or (3) the resolution of the writ petition
will resolve related or future litigation. Williams v. Eighth Judicial Dist.
Court, 127 Nev. 518, 525, 262 P.3d 360, 365 (2011) Gnternal quotation
marks omitted). Whether a petition for a writ of mandamus will be
considered is within this court’s sole discretion. Smith v. Eighth Judicial
Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).
Petitioners raise an important and unsettled issue of law—
under what circumstances is the substitution of an expert witness
appropriate after discovery has closed. We therefore exercise our discretion
to entertain the petition.
NRCP 16(b)(4)’s good cause standard, along with consideration of any
relevant local rules, provides the framework for a district court’s evaluation
when a party seeks to substitute an expert witness after the close of discovery
In Compton’s motion to substitute his expert witness, he argues
that the substitution is appropriate under NRCP 16(b)(4) and NRCP
37(c)\(1). Petitioners contend that the district court did not apply the correct
legal standard and propose that the district court should have followed
EDCR 2.35(a)’s “excusable neglect” standard.
NRCP 16(b)(4) provides that the district court may modify a
scheduling order for good cause. NRCP 37(c)(1) provides that if a party fails
to identify a witness, the party cannot use that witness, “unless the failure
was substantially justified or is harmless.” EDCR 2.35(a) provides that a
request for additional time for discovery made later than 21 days from the
close of discovery shall not be granted unless the moving party
demonstrates that the failure to act was the result of excusable neglect.
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Because we have not previously addressed the correct standard
for considering motions to substitute an expert witness after the close of
discovery, we look to federal courts for guidance. “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.” Hxec. Mgmt., Ltd. v. Ticor Title Ins.
Co., 118 Nev. 46, 53, 38 P.3d 872, 876 (2002) (internal quotation marks
omitted). In Fidelity National Financial, Inc. v. National Union Fire
Insurance Co. of Pittsburgh, 308 F.R.D. 649, 652 (S.D. Cal. 2015), the United
States District Court for the Southern District of California determined that
when reviewing such motions under FRCP 16(b) (amendment of a
scheduling order) or FRCP 37(c) (untimely designation of expert witness
and sanctions), the relevant factors were largely coextensive. Id. Similar
to NRCP 16(b), which permits a modification to the schedule only for good
cause, FRCP 16(b) also permits a modification only for good cause, and
federal courts have interpreted that to mean that a district court is required
“to evaluate (1) the moving party’s diligence, and (2) prejudice.” Fidelity
Natl, 308 F.R.D. at 652. And under FRCP 37(c), a district court must
“assess (1) whether the moving party has shown substantial justification,
and (2) harm.” /d. (internal quotation marks omitted). However, because
a request to substitute an expert witness after discovery has closed requires
the district court to set a new date for the disclosure of expert and rebuttal
reports and reopen limited expert discovery, federal courts have concluded
that FRCP 16(b) is the more appropriate standard. Jd. We agree.
The district court’s consideration extends beyond simply
deciding if the substitute expert witness would be appropriate and includes
evaluating how the whole case would be affected with the new discovery
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deadlines. Thus, evaluation under NRCP 16(b)(4) is the more appropriate
mechanism of review as it is more extensive than a review under NRCP
87(c)(1). See, e.g., Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
608-09 (9th Cir. 1992) (treating a motion to amend the complaint after the
scheduling order deadline as a motion to modify the scheduling order rather
than a motion to amend the complaint).! Furthermore, some federal courts
have also required consideration of local rules in combination with the
consideration under FRCP 16(b), as the local rules affect how a trial
proceeds through that jurisdiction. See, e.g., Johnson, 975 F.2d at 608 &
n.4 (recognizing that Local Rule 240(c) of the Eastern District of California
contains local exceptions to FRCP 16(b)’s mandatory scheduling deadlines);
see also NRCP 16(e) (final pretrial conference).
Accordingly, we clarify that when a party seeks to substitute an
expert witness after the close of discovery, a district court should consider
the motion pursuant to NRCP 16(b)(4)’s good cause standard and in
combination with any applicable local rules, like EDCR 2.35(a) here. Thus,
in totality and applied here, the standard is good cause for the extension of
discovery under NRCP 16(b)(4), along with a showing of excusable neglect
under EDCR 2.35(a) because the motion to substitute was filed later than
21 days before the discovery cut-off deadline.
‘In Johnson v. Mammoth Recreations, 975 F.2d at 608-09, the circuit
court considered FRCP 16(b) in the plaintiffs late amendment of complaint
instead of FRCP 15(a) (amendment and supplemental pleadings). The court
stated that FRCP 16(b) included the more appropriate standard, and the
district court could summarily reject the plaintiffs motion to amend as
untimely. Jd. Importantly, the court pointed out that “[a] scheduling order
‘is not a frivolous piece of paper, idly entered, which can be cavalierly
disregarded by counsel without peril.” Jd. at 610 (quoting Gestetner Corp.
v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985)).
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The district court’s substitution of Dr. Gross was proper under NRCP
16(b)(4) and EDCR 2.85(a)
Discovery matters are within the district court’s sound
discretion, and its decision will not be disturbed unless the district court
clearly abused its discretion. In re Adoption of a Minor Child, 118 Nev. 962,
968, 60 P.3d 485, 489 (2002); Diversified Capital Corp. v. City of North Las
Vegas, 95 Nev, 15, 23, 590 P.2d 146, 151 (1979).
When considering whether there is good cause to modify a
scheduling order, the district court must first consider the moving party’s
diligence. See Fidelity Nat'l, 308 F.R.D. at 652 (construing the identical
federal rule); Nutton v. Sunset Station, Inc., 1381 Nev. 279, 286, 357 P.3d
966, 971 (Ct. App. 2015) (noting that good cause under NRCP 16(b) is
analogous to the federal rule). The motion must be denied if the district
court determines the moving party did not act diligently. Fidelity Natl, 308
F.R.D. at 652. If the party acted diligently, the district court will then
consider whether the delay will prejudice the nonmoving party. Id.
Because EDCR 2.35(a) is also relevant in the underlying situation, the court
must also consider whether the moving party demonstrated that its failure
to act was the result of excusable neglect. Excusable neglect is “not because
of the party’s own carelessness, inattention, or willful disregard of the
court’s process, but because of some unexpected or unavoidable hindrance.”
Excusable Neglect, Black’s Law Dictionary (11th ed. 2019).
The district court did not abuse its discretion in modifying the
existing scheduling order, reopening discovery for a limited purpose, and
allowing the substitution regarding Dr. Gross. The district court expressly
considered substantial justification and the harm to the parties under
NRCP 37(c), which we have recognized are factors coextensive with those
under NRCP 16(b)(4). Further, the record supports the district court’s
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findings and thus that there was good cause, diligence, lack of prejudice,
and excusable neglect. Compton had successfully moved the court to
exclude any testimony at trial relating to Dr. Gross’ then-pending federal
case. Dr. Gross’ subsequent plea was made under seal, and the district
court determined that Compton had no knowledge of the updated status of
Dr. Gross’ criminal case because of the sealing order until the public
statement. When Dr. Gross was then sentenced to prison, Compton was left
without his expert witness. As a result, the district court concluded that
the harm to Compton occasioned by the prison sentence and resultant
unavailability of Dr. Gross outweighed the harm to petitioners;? thus, there
was good cause, and a lack of prejudice, to allow for the substitution
regarding Dr. Gross. Moreover, Compton diligently moved to substitute for
Dr. Gross within a reasonable amount of time after the sealing order was
lifted and the subsequent sentencing decision was made public in May
2021." Further, the district court determined that the harm to petitioners
would be limited, as Dr. Leon would not exceed the scope of Dr. Gross’
opinion, would not offer new or unrelated testimony or opinions, and would
“Implicit in the district court’s ruling is a finding that the harm to
Compton by virtue of being without an expert witness outweighed any harm
to petitioners that would be occasioned by the requested substitution.
However, the district court’s written order appears to contain an error
where it states that the harm to real party in interest “is outweighed by
any” harm to petitioners.
’Petitioners’ argument that knowledge of the indictment should be
equated to knowledge of the eventual guilty plea, conviction, prison
sentence, and unavailability lacks merit. The risk of proceeding with the
expert witness was not determined at the time when Dr. Gross was
designated as the retained expert simply because Compton had knowledge
of possible criminal guilt.
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not increase damages. The district court specifically ordered discovery to
be reopened, limited it to only the replacement of Dr. Gross, and clarified
that no other discovery was permitted. Thus, the district court did not
abuse its discretion in finding good cause and in granting a modification of
the scheduling order.
Additionally, the district court’s findings support a conclusion
of excusable neglect. Dr. Gross was appropriately qualified as the expert
witness, and Compton had successfully moved the court to exclude any
testimony related to his then-pending federal case. Thus, Dr. Gross would
have been able to testify without issue had he not been convicted and
sentenced to prison. As the district court determined, the “surprise” in this
situation was the combination of a sealed record of the guilty plea until
April 2021, a 15-month prison term imposed at sentencing, and the eventual
unavailability of Dr. Gross. Dr. Gross’ unavailability cannot be imputed to
Compton as being a result of his carelessness, inattention, or willful
disregard of his obligations but rather resulted from an unavoidable
hindrance occasioned by Dr. Gross’ guilty plea and prison sentence. Thus,
the district court did not abuse its discretion in finding excusable neglect
pursuant to the facts on record.
We conclude that petitioners did not show that the district court
abused its discretion in modifying the scheduling order and reopening
discovery, and thus writ relief is not warranted to control an arbitrary and
capricious exercise of discretion or to require the district court to perform a
legally required act. See Club Vista Fin. Servs., LLC v. Eighth Judicial
Dist. Court, 128 Nev. 224, 228, 276 P.3d 246, 249 (2012) (explaining that
“discovery matters are within the district court’s sound discretion, and [this]
court will not disturb factual findings if they are supported by the record”).
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Any lack of factual findings or conclusions of law in the order does not
warrant extraordinary relief because the record supports the district court’s
order.
CONCLUSION
A motion to substitute an expert witness after close of discovery
necessarily requires the district court to consider modifying the scheduling
order and reopening discovery. We adopt the federal approach and conclude
that NRCP 16(b)(4)’s “good cause” test, in combination with any relevant
local rules, provides the standard governing when a district court may
modify a scheduling order. Therefore, we conclude that the district court
properly granted the motion to substitute Compton’s expert witness, and we
deny the petition for a writ of mandamus.
(A———
Herndon
We concur:
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