At the close of 2021, the Nevada Supreme found NRS 52.380, which allowed observers and audio recording during physical or mental examinations without a prior showing of good cause, unconstitutional under the separation of powers doctrine. Notwithstanding the constitutional and legal reasoning behind the ruling the court's decision represents an end to a nearly 3-year policy battle. The decision also has practical implications for practitioners involved in personal injury litigation in
Policy Background
In early 2019, the
As relevant here, the revised NRCP 35 allowed a potential examinee to request, as a condition of the examination, to have an observer present at the examination. However, this observer could not be the examinee's attorney, or anyone employed by the examinee or the examinee's attorney. Parties must also identify their observer before the examination. Further, observers are not allowed in a neuropsychological, psychological, or psychiatric examination, unless the court orders otherwise for good cause shown. Lastly, the revised NRCP 35 provided a procedural mechanism for a party (or examiner) to request that the examination be audio recorded. A court could require an examination be audio recorded upon a showing of good cause.
However, about a month after the revised NRCP 35 took effect, the Nevada legislature considered and subsequently passed AB 285, codified as NRS 52.380. This statute sought to modify2 the sections of NRCP 35 discussed above. Specifically, the statute (1) allowed an examinee's attorney (or staff) to act as an observer, (2) permitted an observer for neuropsychological or psychological examinations without any showing of good cause, and (3) endorsed recording of examinations without any showing of good cause.
Proponents of AB 285 (mainly plaintiff personal injury attorneys) asserted it should be a substantive right for a person to have an observer present when being examined by a doctor not of their choosing. In addition, these proponents argued that parties should always have the option to audio record examinations because an irrefutable record is vital for any later dispute. Critics of the bill (mostly civil defense attorneys) contended that this bill was an improper attempt to alter court procedures. Critics also stressed that the
After the passage of NRS 52.380, the standards and procedures for these examinations became quite befuddled—a statute provided for one type of procedure while a court-created rule provided for another.3 It became clear that if these competing standards could not be reconciled, one had to be invalidated in order to restore coherence for civil litigators.
On
The
The case arose out of an automobile-motorcycle accident. A vehicle providing services for
During the discovery phase,
However, regarding Plaintiff's requested conditions of the exam, the discovery commissioner raised, sua sponte, the issue of NRS 52.380 and its divergence with NRCP 35—the precise controversy which led to the
Following the submission of supplemental briefing by the parties, the discovery commissioner concluded that NRS 52.380 created substantive rights and consequently superseded NRCP 35.4 Consistent with its findings, the commissioner recommended that Plaintiff be allowed to have his attorney present to observe and make an audio recording of each exam pursuant to NRS 52.380.
The Impact of the
In a unanimous decision, an en banc Supreme Court ruled that NRS 52.380 was unconstitutional under the separation of powers doctrine. The separation of powers doctrine generally prevents one branch of government from encroaching on the powers of another branch. In Nevada, the
In reaching its conclusion, the court made several important determinations. First, as with any "constitutionality" inquiry, the court decided whether there was an actual conflict between NRS 52.380 and NRCP 35. The court found there was an actual conflict because the statute abrogated NRCP 35. Specifically, the court found that the statute removed the "good cause" standard for having an observer for psychological examinations and using an audio recording device during the exam.
As a result, the court determined that the statute eliminated the district court's discretion to control these examinations. This change fundamentally conflicted with the purpose of Rule 35. In addition, the court found that the statute ran afoul of Rule 35 by allowing the examinee's attorney (or their staff) to be an observer. This section was in complete contrast to Rule 35. Thus, the court found an actual conflict.
Next, the court had to determine whether NRS 52.380 was a "substantive" or "procedural" law. If the statute was substantive, it would not offend separation of powers because the legislature has the power to create substantive rights that eclipse procedural rules. Yet, in the instant case, the court found that NRS 52.380 was a procedural law. The court pointed out that the
The court also reasoned that the statute was not a substantive right because the statute did not provide a private right of action to enforce a violation. Instead, the statute exclusively relied on the NRCP for a remedy. Thus, the statute was found to be procedural—it merely specified the process allowed for examinations once a civil claim already existed.
Based on its analysis, the court found that NRS 52.380 was unconstitutional and granted
Key Takeaways:
This decision provides much needed guidance and removes the roadblocks that have constrained the examination process since NRS 52.380 was implemented. Many medical experts had refused to conduct examinations under the terms allowed by the statute. Adherence to NRCP 35 affirms the need for a judicial finding of good cause before allowing observers and audio recording of examinations in what is intended as an independent process.
Footnotes
1. The Nevada
2. Although the statute itself is silent regarding its intent, the legislative history makes the intention abundantly clear.
3. There was a split among Nevada District Courts regarding which authority to follow.
4. Importantly, the discovery commissioner came to this conclusion without citation to legal authority, as observed by the
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