DeChambeau v. Balkenbush

134 Nev., Advance Opinion 75
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

ANGELA DECHAMBEAU; AND JEAN- No. 72879
PAUL DECHAMBEAU, BOTH
INDIVIDUALLY AND AS SPECIAL
ADMINISTRATORS OF THE ESTATE
OF NEIL DECHAMBEAU,
FILS
Appellants, SEP 2 7 2018
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deemed to have been entirely superseded by the new order.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.
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

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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 Oakland-
Alameda 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

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

J.

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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.

, C.J.
Silver

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