Wednesday, December 31, 2014

Monday, December 15, 2014

What are the Requirements for Expert Witness Disclosure in Nevada?

When you need to disclose expert witnesses in Las Vegas injury cases, the first place to look is Nevada Rules of Civil Procedure, (usually shortened to “NRCP”) Rule 16.1.  Rule 16.1 provides in part:

(a) Required Disclosures.  (2) Disclosure of Expert Testimony.

                   (A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under NRS 50.275, 50.285 and 50.305.

                   (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 report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding 10 years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.


So, what has to be given to the other side as part of the expert disclosure?  First and foremost, you must prepare what is called a Notice of Expert Witnesses.  Here, you list each expert witness, providing their name, address and telephone number and a brief description of what they will be providing expert testimony on in your case. In addition to this factual information, you must provide four separate documents. 

The first document that must be turned over to the other side, is the expert’s report. The report must state all conclusions and topics on which you plan to have your expert testify to at trial. This is very important. If your expert does not discuss something in their report, they are barred from testifying to it at trial, absent court order.

The next item is the expert’s curriculum vitae i.e. resume or CV for short. Their CV must state all of their education and work history, together with any publications they have authored in the past 10 years. In addition to the report and CV, your personal injury attorney will have to disclose the expert’s fee schedule, which list how much they get paid per hour, whether that is in preparing the expert report, sitting for a deposition or testifying at trial. The final document that must be produced is your expert’s case testimony list. This case testimony list must list all deposition and trial testimony the expert has provided in the prior 4 years.

Rule 16.1 goes on to state that this initial expert disclosure must be made on or before 90 days before the cut-off of discovery. Any rebuttal experts must be disclosed to the other side 30 days after the initial expert disclosure was made. Of course, your injury attorney will have your experts lined up well before the expert disclosure deadline, to make sure they have plenty of time to review all of relevant case documents and prepare their report.

Next time, we will discuss disclosure of damages in Nevada court cases.

Monday, December 8, 2014

Can a Person’s Immigration Status be Brought up at Trial?

Whether someone is here in the United States legally or not, is not admissible evidence in a Las Vegas personal injury action. So, whether someone is here on vacation from another county or has outstayed their visa, they both can recover if they were injured while in Las Vegas, through no fault of their own.

For those wanting to look at specific cases, a New York court held that a plaintiff's immigration status was properly excluded in a case involving a construction worker who fell two stories through an improperly covered hole in the roof of the defendant's construction project. Angamarca v. New York City Partnership Housing, 2011 NY Slip Op. 5361, 2011 N.Y. App. Div. LEXIS 5251 (N.Y. Sup. Ct. June 21, 2011). 

However, if someone is from another country and they have sustained lost wages, then their immigration status may be relevant for the limited purpose of their wage loss claim. The reason for this is because the law states that a wage loss claim for a non-U.S. citizen must be based upon what that person could have earned in their country of citizenship not what he/she could earn in the United States. 

Next time, we will discuss expert witness disclosure in Las Vegas injury cases.

Monday, December 1, 2014

What is a Memorandum of Costs in a Las Vegas Court Case?

Which costs are allowed in a court case is determined by law.  Costs have been determined to mean a wide range of items, from copy charges, witness fees and legal research. NRS 18.005 defines costs in Nevada:

  NRS 18.005  “Costs” defined.  For the purposes of NRS 18.010 to 18.150, inclusive, the term “costs” means:
      1.  Clerks’ fees.
      2.  Reporters’ fees for depositions, including a reporter’s fee for one copy of each deposition.
      3.  Jurors’ fees and expenses, together with reasonable compensation of an officer appointed to act in accordance with NRS 16.120.
      4.  Fees for witnesses at trial, pretrial hearings and deposing witnesses, unless the court finds that the witness was called at the instance of the prevailing party without reason or necessity.
      5.  Reasonable fees of not more than five expert witnesses in an amount of not more than $1,500 for each witness, unless the court allows a larger fee after determining that the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.
      6.  Reasonable fees of necessary interpreters.
      7.  The fee of any sheriff or licensed process server for the delivery or service of any summons or subpoena used in the action, unless the court determines that the service was not necessary.
      8.  Compensation for the official reporter or reporter pro tempore.
      9.  Reasonable costs for any bond or undertaking required as part of the action.
      10.  Fees of a court bailiff or deputy marshal who was required to work overtime.
      11.  Reasonable costs for telecopies.
      12.  Reasonable costs for photocopies.
      13.  Reasonable costs for long distance telephone calls.
      14.  Reasonable costs for postage.
      15.  Reasonable costs for travel and lodging incurred taking depositions and conducting discovery.
      16.  Fees charged pursuant to NRS 19.0335.
      17.  Any other reasonable and necessary expense incurred in connection with the action, including reasonable and necessary expenses for computerized services for legal research.

So, how does a party actually recover costs?  The winning party must submit what is called a Memorandum of Costs. This has a tight timeline and must be done within 5 days from the date of the entry of judgment. NRS 18.110 sets out all of the relevant guidelines to follow:

  NRS 18.110  Verified memorandum of costs: Filing and service; witness’ and clerk’s fee; retaxing and settling costs.
      1.  The party in whose favor judgment is rendered, and who claims costs, must file with the clerk, and serve a copy upon the adverse party, within 5 days after the entry of judgment, or such further time as the court or judge may grant, a memorandum of the items of the costs in the action or proceeding, which memorandum must be verified by the oath of the party, or the party’s attorney or agent, or by the clerk of the party’s attorney, stating that to the best of his or her knowledge and belief the items are correct, and that the costs have been necessarily incurred in the action or proceeding.
      2.  The party in whose favor judgment is rendered shall be entitled to recover the witness fees, although at the time the party may not actually have paid them. Issuance or service of subpoena shall not be necessary to entitle a prevailing party to tax, as costs, witness fees and mileage, provided that such witnesses be sworn and testify in the cause.
      3.  It shall not be necessary to embody in the memorandum the fees of the clerk, but the clerk shall add the same according to the fees of the clerk fixed by statute.
      4.  Within 3 days after service of a copy of the memorandum, the adverse party may move the court, upon 2 days’ notice, to retax and settle the costs, notice of which motion shall be filed and served on the prevailing party claiming costs. Upon the hearing of the motion the court or judge shall settle the costs.

After this Memorandum of costs is filed, the opposing party only has 3 days in which to object to the costs request. This is called a Motion to Retax. Once the court has both documents, and supporting documentation, they will make a decision (either with or without a court hearing).

Next time, we will discuss immigration status in personal injury actions.