Kinney v. Dist. Ct. (Calif. State Automobile Ass'n.)

• Court: Nevada Supreme Court
• Decided: September 16, 2014
• Docket: 66043
• Status: Unpublished

Opinion

burden of establishing that relief is warranted. Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). Having considered petitioner's writ petition and appendix, we conclude that our intervention is unwarranted, as the district court properly determined that petitioner's proffered witness was not a rebuttal witness. Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558; Andrews v. Harley Davidson, Inc., 106 Nev. 533, 539, 796 P.2d 1092, 1096 (1990) (concluding that "Hebuttal evidence explains, contradicts, or disproves evidence introduced by a defendant in his case-in-chief' and that "[t]he test for determining what constitutes rebuttal evidence is whether the evidence offered tends to contradict new matters raised by the adverse party"); see NRCP 16.1(a)(2)(C)(ii) (providing that an expert cannot serve as a rebuttal witness where that witness's purpose is to "contradict a portion of another party's case in chief that should have been expected and anticipated"). In particular, the expert reports show that petitioner's expert's testimony merely concerned the elements of petitioner's claim and did not rebut new matters raised by real parties in interest's experts. Moreover, the record demonstrates that petitioner engaged this expert approximately one year before the disclosure deadline for real parties in interest's experts. The district court therefore properly determined that petitioner's expert's testimony would not be rebuttal testimony. NRCP 16.1(a)(2)(C)(ii); Andrews, 106 Nev. at 539, 796 P.2d at 1096. Thus,

SUPREME COURT OF NEVADA 2 (0) 1947A petitioner has not demonstrated that writ relief is warranted.' Pan, 120

Nev. at 228, 88 P.3d at 844. Accordingly, we ORDER the petition DENIED.

/ ACE-A 44; Hardesty

J.

cc: Hon. Elliott A. Sattler, District Judge Law Offices of Curtis B. Coulter Alverson Taylor Mortensen & Sanders Washoe District Court Clerk

'We note that petitioner's writ petition is devoted solely to arguing that the district court erred in failing to categorize her proffered expert witness as a rebuttal witness. Because we agree with the district court's determination in that regard, we need not consider the separate, unraised issue of whether the district court's sanction of striking this witness was an abuse of discretion. Bahena v. Goodyear Tire & Rubber Co., 126 Nev. „ 235 P.3d 592, 596 (2010) (recognizing that discovery sanctions are within the district court's discretion).

SUPREME COURT OF NEVADA 3 (0) 1947A