This court has jurisdiction to consider this appeal
As an initial matter, Gold Coast argues that this court lacks
jurisdiction to hear this appeal because Clark did not timely file the notice
of appeal. Because Clark's motion for reconsideration was filed within ten
days of Clark receiving notice of the entry of judgment, the motion is
properly treated as a Rule 59 motion that tolls the time to appeal. See AA
Primo Builders, L.L.C. v. Washington, 126 Nev. „ 245 P.3d 1190,
1194-95 (2010) (treating a timely filed motion to reconsider as a Rule 59
motion). Accordingly, this court has jurisdiction to hear this appeal.
The district court did not abuse its discretion by excluding Clark's expert's
testimony
Clark argues that the district court abused its discretion in
excluding the testimony of her expert, Joseph DeMaria. This court
reviews a district court's decision to allow expert testimony for an abuse of
discretion. Hallmark v. Eldridge, 124 Nev. 492, 498, 189 P.3d 646, 650
(2008).
A witness may testify as an expert if (1) the witness is
"qualified in an area of 'scientific, technical or other specialized knowledge'
(the qualification requirement);" (2) the expert's "specialized knowledge
must 'assist the trier of fact to understand the evidence or to determine a
fact in issue' (the assistance requirement);" and (3) the expert's testimony
is "limited 'to matters within the scope of [the expert's specialized]
knowledge' (the limited scope requirement)." Hallmark, 124 Nev. at 498,
189 P.3d at 650 (quoting NRS 50.275).
Hallmark provides the following nonexhaustive list of factors
to consider in determining whether an expert is qualified in an area of
scientific, technical, or other specialized knowledge: "a) formal schooling
and academic degrees, (2) licensure, (3) employment experience, and (4)
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practical experience and specialized training." Hallmark, 124 Nev. at 499,
189 P.3d at 650-51.
DeMaria is qualified to testify as an expert in safety
engineering, the field in which Clark proffered him. His lengthy
curriculum vitae shows that he has a Ph.D. in occupational safety and
health engineering, numerous certifications, and a lengthy work history
relevant to this field. This work history includes employment as the risk
manager of Rio Suites Hotel and Casino. Accordingly, DeMaria satisfies
the qualification requirement of NRS 50.275. Thus, the district court
abused its discretion by excluding DeMaria on the basis that he was
unqualified.
Under the assistance requirement, an expert's opinion must be
relevant and the product of a reliable methodology. Hallmark, 124 Nev. at
500, 189 P.3d at 651. To determine whether an expert's opinion is based
upon reliable methodology, "a district court should consider whether the
opinion is (1) within a recognized field of expertise; (2) testable and has
been tested; (3) published and subjected to peer review; (4) generally
accepted in the scientific community . . . ; and (5) based more on
particularized facts rather than assumption, conjecture, Or
generalization." Id. at 500-01, 189 P.3d at 651-52. "[T]hese factors are not
exhaustive, may be accorded varying weights, and may not apply equally
in every case." Id. at 502, 189 P.3d at 652.
In the present case, DeMaria's opinion was that the applicable
safety standard requires the escalator to come to a gradual stop, while
here the escalator came to a sudden stop. According to DeMaria, that
standard requires an escalator to stop within a maximum of three seconds.
The standard does not mention a minimum stopping time. Gold Coast's
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expert stated in his report that the escalator is designed to stop quickly
when the safety switch is activated in order to prevent injury if a person is
caught in the machinery. DeMaria did not provide a basis for determining
how fast the escalator in question actually stopped besides a guestimate
from watching the surveillance video. Furthermore, he did not offer an
opinion on the correct stopping• time (much less a methodology for
calculating a non-negligent stopping time), and he did not provide any
explanation for the relative risk involved between a sudden stop and a
gradual stop. Because DeMaria's opinion is not based on any recognized
methodology, the district court did not abuse its discretion in striking
DeMaria as an expert after concluding that DeMaria's opinion "is not of an
expert nature." See Hallmark, 124 Nev. at 500-01, 189 P.3d at 651.
Because the district court did not abuse its discretion in
concluding that DeMaria's opinion did not satisfy the assistance
requirement, we affirm the district court's decision to exclude DeMaria's
testimony. See Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d
1155, 1158 (1981) ("If a decision below is correct, it will not be disturbed
on appeal even though the lower court relied upon wrong reasons.").
Res ipsa loquitur is inapplicable
Clark next argues that the doctrine of res ipsa loquitur allows
her to raise an inference of negligence without expert testimony. We
conclude that the doctrine of res ipsa loquitur is inapplicable.
An inference of negligence may be raised where the plaintiff
shows (1) the defendant was in exclusive control of the instrumentality
causing injury, (2) the accident causing injury does not ordinarily happen
in the absence of negligence, and (3) the defendant is in a better position
than the plaintiff to explain the cause of the accident. Otis Elevator Co. v.
Reid, 101 Nev. 515, 519, 706 P.2d 1378, 1380 (1985).
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Other jurisdictions have held that res ipsa loquitur is
inappropriate in similar escalator-related cases because a plaintiff cannot
show exclusive control where the machine was subject to extensive public
contact or because applying the doctrine would make the owner the
insurer of all who use the escalator. See, e.g., Parris v. Port of N.Y. Auth.,
850 N.Y.S.2d 53, 54-55 (App. Div. 2008); Tinder v. Nordstrom, inc., 929
P.2d 1209, 1213-14 (Wash. Ct. App. 1997). Other jurisdictions have also
held that expert testimony is required to establish that sudden escalator
stoppage was caused by negligence and thus the doctrine of res ipsa
loquitur is inapplicable. See, e.g., Holzhauer v. Saks Si Co., 697 A.2d 89,
95 (Md. 1997). We find the reasoning of these cases persuasive and
conclude that the facts of this case do not permit an inference of
negligence in Clark's favor.
The district court did not abuse its discretion by denying Clark's motion to
extend discovery
Next, Clark argues that the district court abused its discretion
by denying her motion to extend discovery because she satisfied her
burden of showing excusable neglect. The phrase "excusable neglect," as
used in the applicable local rule, EDCR 2.35, has not been defined by this
court.
This court reviews a district court's decision on discovery
matters for an abuse of discretion. Club Vista Fin. Servs., L.L.C. v. Eighth
Judicial Dist. Court, 128 Nev. „ 276 P.3d 246, 249 (2012). This
court reviews de novo the district court's legal conclusions regarding court
rules. Casey v. Wells Fargo Bank, N.A., 128 Nev. , , 290 P.3d 265,
267 (2012).
EDCR 2.35(a) provides that a request for additional time for
discovery made later than 20 days from the close of discovery "shall not be
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granted unless the moving party, attorney or other person demonstrates
that the failure to act was the result of excusable neglect." The meaning of
the term excusable neglect appears well settled. For example, Black's Law
Dictionary defines "excusable neglect" as• follows:
A failure which the law will excuse—to take
some proper step at the proper time (esp. in
neglecting to answer a lawsuit) not because of the
party's own carelessness, inattention, or willful
disregard of the court's process, but because of
some unexpected or unavoidable hindrance or
accident or because of reliance on the care and
vigilance of the party's counsel or on a promise
made by the adverse party.
Black's Law Dictionary 1133 (9th ed. 2009). A number of Nevada cases
have applied "excusable neglect" as grounds for enlarging time under
NRCP 6(b)(2) and as a basis for setting aside a judgment under NRCP
60(b)(1). The concept of "excusable neglect" does not apply to a party
losing a fully briefed and argued motion; instead, the concept applies to
instances where some external factor beyond a party's control affects the
party's ability to act or respond as otherwise required. See, e.g., Moseley v.
Eighth Judicial Dist. Court, 124 Nev. 654, 667-68, 188 P.3d 1136, 1145-46
(2008) (concluding that, under NRCP 6(b)(2), excusable neglect may justify
an enlargement of time to allow for substitution of a deceased party where
the delay was caused by a lack of cooperation from the decedent's family
and attorney); Stoecklein v. Johnson Elec., Inc., 109 Nev. 268, 273, 849
P.2d 305, 308 (1993) (affirming a district court's finding of excusable
neglect under NRCP 60(b)(1) where default judgment resulted from a lack
of notice); Yochum v. Davis, 98 Nev. 484, 486-87, 653 P.2d 1215, 1216-17
(1982) (reversing a district court's order denying a motion to set aside a
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default judgment under NRCP 60(b)(1) where default resulted from a lack
of procedural knowledge).
In the present case, the district court entered its order striking
DeMaria as an expert witness in June 2012, after briefing by both parties
and a hearing. Clark filed her motion in July 2012, over three months
after discovery closed, seeking additional time to secure a new expert
witness. Clark argues that `Where was no way for Ms. Clark's attorneys
to have foreseen the district court going so far afield of the rules for
admissibility of experts in premises liability." The notion that one would
need an expert with specialized knowledge of escalators in such a case is
not unusual or novel, however, and allowing a party to reopen discovery
upon losing a motion to strike or a motion in limine would unnecessarily
burden the timely and efficient resolution of litigation. Accordingly, we
conclude that "excusable neglect" as used in EDRC 2.35(a) does not
include circumstances where a party loses a fully briefed and argued
motion on its merits. Accordingly, we affirm the district court's order
adopting the discovery commissioner's finding refusing to reopen
discovery.
The district court did not abuse its discretion by denying Clark leave to file
an amended complaint to add Otis Elevator Company as a defendant
Last, we reject Clark's argument that the district court abused
its discretion by denying Clark leave to file an amended complaint to add
Otis Elevator Company, d.b.a. Nevada Elevator Company (Otis) as a
defendant. Although NRCP 15(a) provides that leave to amend "shall be
freely given when justice so requires," leave to amend is not appropriate in
the face of "undue delay, bad faith or dilatory motive." Stephens v. S. Nev.
Music Co., 89 Nev. 104, 105-06, 507 P.2d 138, 139 (1973). NRCP 10(a)
allows a party to designate an unknown defendant and later amend the
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pleadings once the name of the defendant becomes known. NRCP 15(c)
allows amended pleadings to relate back to the time the original complaint
was filed in certain circumstances.
We have held that amending a complaint under Rule 10(a)
requires that the party (1) plead a fictitious or Doe defendant in the
caption of the original complaint; (2) plead the basis for naming
defendants by other than their true identity, and clearly specify the
connection between the intended defendants and the conduct, activity, or
omission upon which the cause of action is based; and (3) exercise
reasonable diligence in ascertaining the identity of the intended
defendants and promptly move to amend the complaint. Nurenberger
Hercules-Werke GMBH v. Virostek, 107 Nev. 873, 881, 822 P.2d 1100, 1106
(1991).
Although the complaint contains Doe defendants in the
caption, the body of the complaint only mentions the Doe defendants in a
vague and cursory manner, without any mention of an entity responsible
for maintenance or operation of the escalator.' Gold Coast avers that it
produced the maintenance agreement between Otis and Gold Coast in
June 2010, while the motion for leave to file an amended complaint was
not filed until December 2011.
Clark acknowledges Gold Coast's argument that she waited
well over a year to seek leave to file an amended complaint but does not
actually address it. Instead, she argues that the statute of limitations had
'Clark argues that she made allegations against the installer or
repairer of the escalator, but the actual complaint only names Gold Coast
as said installer and repairer, and does not relate the installation or repair
of the escalator to any mention of Doe or fictitious defendants.
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not yet run, thus there could not be any undue delay or lack of diligence.
This argument is circular, and adopting Clark's reasoning here would
undermine the purpose for having a timeliness requirement for adding a
Doe defendant outside of the statute of limitations itself.
Clark also argues that because Otis was indemnifying Gold
Coast, Otis had notice of the action. Although notice is relevant for
determining whether a pleading may relate back, Costello v. Casler, 127
Nev. 254 P.3d 631, 634 (2011), it is not a relevant factor in
determining whether a new defendant may be named in place of a Doe
defendant under NRCP 10. See Nurenberger, 107 Nev. at 881, 822 P.2d at
1106. Instead, we conclude that because Clark did not attempt to amend
the complaint until over a year after Otis's identity had been disclosed, the
circumstances of this case fall clearly outside of the factors set forth in
Nurenberger, and thus the district court did not abuse its discretion by
denying Clark's motion to file an amended complaint. 2 See Holcomb
Condo. Homeowners' Assoc., Inc. v. Stewart Venture, L.L.C., 129 Nev. ,
, 300 P.3d 124, 130-31 (2013) (providing that "this court will not
disturb a trial court's denial of leave to amend absent an abuse of
discretion"). Accordingly, we
2 We conclude that Clark waived her argument that Gold Coast did not
timely file its motion for summary judgment. See Thomas v. Hardwick,
126 Nev. 142, 158-59, 231 P.3d 1111, 1121 (2010) (concluding that where a
party raises an issue for the first time on a motion for reconsideration, and
the trial court does not address the merits of the motion, the issue is
waived). For the same reasons, we also conclude that Clark waived her
argument that she did not need an expert based on her theory that Gold
Coast had a nondelegable duty to operate the escalator safely and that the
sudden stop was unreasonably dangerous. See id.
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ORDER the judgment of the district court AFFIRMED.
Pitlee4.7
' , J
Pickering
rTh
Saitta
cc: Hon. Michael Villani, District Judge
William C. Turner, Settlement Judge
Christensen Law Offices, LLC
Rogers, Mastrangelo, Carvalho & Mitchell, Ltd.
Eighth District Court Clerk
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