ORDER DENYING PETITION
FOR WRIT OF MANDAMUS OR PROHIBITION
This is an original petition for a writ of mandamus or
prohibition challenging a district court order excluding expert
extrapolation testimony and a district court order conditionally granting
further destructive testing.
After this petition was filed, the district court entered an order
on April 2, 2013, that vacated portions of the order conditionally granting
petitioners' request to conduct further destructive testing. Specifically, in
its April 2 order, the district court permitted petitioners to begin
additional destructive testing and vacated the portions of its October 29,
2013, order that severed the trial on the construction defect claims from
the trial on the breach of contract and lien claims.'
The April 2 district court order, however, necessarily changes
the issues before this court in this petition. In particular, because the
district court has allowed for additional testing, the status of the
admissibility of extrapolation testimony at trial is uncertain at this stage.
In light of the tenuous status of the district court's prior ruling on the
extrapolation testimony, it is inappropriate for this court to exercise its
discretion to intervene by way of extraordinary writ relief, and it therefore
appears that the only issue remaining for this court's review is the district
'On June 5, 2013, petitioners filed a motion for leave to file a
clarification of the current status of the district court's October 5, 2010,
extrapolation order addressed by the writ petition. Real parties in interest
Perini Building Company, Inc., Pacific Coast Steel, Century Steel, Inc.,
and Ceco Concrete Construction have filed an opposition to that motion.
Having considered the motion, we grant it and direct the clerk of this
court to detach the clarification from the motion and file the clarification.
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court's imposition of costs. Indeed, when asked at oral argument whether
the district court's order modifying the conditional order and allowing for
additional destructive testing changes this court's review, the parties
conceded that the district court's April order reduced this court's review in
this petition to the costs associated with those tests. 2
It is within this court's sole discretion to determine if a writ
petition will be considered. Smith v. Eighth Judicial Dist. Court, 107 Nev.
674, 677, 818 P.2d 849, 851 (1991). With few exceptions, this court
generally will not consider a writ petition challenging a district court's
determination regarding the admissibility of evidence. See Williams v.
Eighth Judicial Dist. Court, 127 Nev. „ 262 P.3d 360, 364-65 (2001)
(providing that this court will only consider a district court's
determination regarding the admission of evidence in a writ petition when
public policy is served by that consideration because the petition raises an
important issue of law needing clarification or when the petition raises an
issue of first impression that is of public importance); see also Valley
Health Sys., LLC v. Eighth Judicial Dist. Court, 127 Nev. „ 252
P.3d 676, 679 (2011) (providing that this court will typically only grant
extraordinary relief to prevent improper discovery in two situations—when
the district court has issued a blanket discovery order with no regard to
relevance or when the discovery order compels disclosure of privileged
information).
2 Petitionersalso assert that real parties in interest's experts have
recently raised concerns about the structural integrity of the Harmon
Tower, but the parties acknowledge that that issue and the district court's
decision to vacate an earlier order regarding the demolition of the Harmon
Tower are not before this court.
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Wcia.tear -4g
"
Since the admissibility of extrapolation evidence is, at this
point, unclear, the only remaining issue in the writ petition for this court's
consideration is the imposition of costs associated with petitioners' need to
conduct additional destructive testing. That issue does not present an
issue of first impression or matter of public policy that may not be
challenged on appeal, and thus, our intervention by way of extraordinary
writ relief is not warranted. See Int'l Game Tech., Inc. v. Second Judicial
Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) (explaining that
an appeal is typically an adequate legal remedy precluding writ relief); see
also NRS 34.170; NRS 34.330. Accordingly, we
ORDER the petition DENIED. 3
J.
Gibbons
J.
Hardesty
J.
Dg1 as
Cherry
Saitta
3 The Honorable Kristina Pickering, Chief Justice, and the Honorable
Ron D. Parraguirre, Justice, voluntarily recused themselves from
participation in the decision of this matter.
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rev-,z2 L.-IferaMi
cc: Hon. Elizabeth Goff Gonzalez, District Judge
Glaser Weil Fink Jacobs Howard Avchen & Shapiro, LLC
Greenberg Traurig, LLP/Las Vegas
Jones Day/San Francisco
Robertson & Associates, LLP
Lee, Hernandez, Landrum, Garofalo & Blake, APC
Michael E. Kostrinsky
Hutchison & Steffen, LLC
Koeller Nebeker Carlson & Haluck, LLP/Las Vegas
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP/Las Vegas
Meyers McConnell
McDonald Carano Wilson LLP/Las Vegas
Procopio, Cory, Hargreaves & Savitch, LLP
Gordon & Rees, LLP
Martin & Allison, Ltd.
Ryan Mercaldo, LLP
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP
Eighth District Court Clerk
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