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Szydel v. Markman8/11/2005
of whether the party would produce expert opinion evidence later in trial. The approach taken by the majority runs contrary to the goals of NRS 41A.071 because, by the time a decision is made on whether a party is entitled to the res ipsa instruction, a substantial amount of time, energy, and money in discovery and trial is expended.
The majority suggests a remedy if an expert opinion is not required with the complaint filing and the res ipsa loquitor instruction is later denied. They conclude that the case must be dismissed. Nothing in the statutory structure of NRS Chapter 41A provides for such a procedure or dismissal. The better approach is to require the medical affidavit initially, even if a party does not intend to rely later on expert testimony at trial.
For these reasons, I would affirm the dismissal by the district court.
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