Thursday, March 8, 2018

Is Constructive Notice of a Dangerous Condition a Question for the Judge or Jury in Las Vegas Personal Injury Trials?

Slip, trip and fall cases are a unfortunate reality in Las Vegas. Whether you are on a vacation from another state or live in this wonderful city, people suffer serious injuries when they slip or trip on a dangerous condition. The great part of having our new court of appeals is that they can quickly and efficiently rule on issues at the lower, trial court level.

Cox is a household name in Las Vegas. Cox was sued when Mazal Chasson-Forrest tripped over a hole on a sidewalk cable vault lid. Chasson-Forrest v. Cox Communications Las Vegas, Docket No. 70264 (Order of Reversal, Mar. 31, 2017).

After her fall, Ms. Forrest hired a local Las Vegas personal injury lawyer.  Her attorney filed a lawsuit against Cox, seeking to hold them responsible for her injuries. However, before the jury could hear the case, Cox argued to the judge, that it could not be held liable for Ms. Forrest’s injuries. Cox argued that it did not have either actual or constructive notice of the hazardous condition (i.e., the hole in the vault lid).

In support of its argument that it could not be held liable, Cox claimed that there was no evidence that the vault at issue was previously vandalized or otherwise damaged. Cox further pointed out, that no one else besides Ms. Forrest had been injured on this particular vault. As result, Cox tried to argue that it lacked both actual knowledge of the hole, as well as legal, constructive knowledge.

In an effort to refute Cox’s claims of “no notice” Ms. Forrest’s lawyers showed that (1) approximately 30% of cases against Cox involve hazardous vault lids; (2) Cox is aware that vault lid vandalism occurs; (3) because damage to vault lids does frequently occur and can be hazardous, Cox field technicians carry extra vault lids while responding to field calls; and (4) expert opinion established that due to Cox's failure to systematically monitor vault lids, unsafe and dangerous conditions remain unreported and uncorrected.

The trial court rejected Ms. Forrest’s lawyer’s arguments and let Cox off the hook for Ms. Forrest’s injuries. The lower court stated that since Cox didn’t actually know about this specific vault cover hole, it was not responsible for Ms. Forrest’s injuries. A as a result, Ms. Forrest’s personal injury lawyers, appealed the decision to the appeals court. 

After reviewing the facts, the Nevada Court of Appeals took a look at the applicable case law. The appellate court first noted that generally in personal injury cases, the question of negligence is a question of fact for the jury to decide. See Rodriguez v. Primadonna Co., LLC, 125 Nev. 578, 584, 216 P.3d 793, 798 (2009).

In a slip and fall action, business owners are liable when their agents cause the hazard. Sprague v. Lucky Stores, Inc., 109 Nev. 247, 250, 849 P.2d 320, 322 (1993). However, when the hazard is caused by someone other than the business or its agents, "liability will lie only if the business had actual or constructive notice of the condition and failed to remedy it." Id., 849 P.2d at 322-23.

The appeals court noted that the business owner may have constructive notice of a hazardous condition, if a reasonable jury could determine, that based on the circumstances of the hazard, the defendant should have known the condition existed. See Id. at 323, 849 P.2d at 250- 51. "Whether [the defendant] was under constructive notice of the hazardous condition is, in accordance with the general rule, a question of fact properly left for the jury." See Id. at 322, 849 P.2d at 323; see also Paul v. Imperial Palace, Inc., 111 Nev. 1544, 1549, 908 P.2d 226, 230 (1995).

In taking an objective view of the evidence and applying it against the law, the appeals court determined that the trial judge was wrong in letting Cox out of the case. The Nevada Court of Appeals determined that Cox had constructive notice of the hole in the vault lid in question and a reasonable jury could find Cox had constructive notice. Citing Wood, 121 Nev. at 729, 121 P.3d at 1029; Cf. Sprague, 109 Nev. at 250-51, 849 P.2d at 323.

The end result is that actual or constructive notice of a dangerous condition is a question for the jury, not the judge to decide. 

Next time we will discuss whether jury bias warrants a new trial.

Thursday, February 8, 2018

Is Medical Evidence Needed to Cross Examine an Injured Party in Las Vegas Personal Injury Trials?

In most clear liability car accidents, the biggest issue is whether the car crash caused the alleged injuries. In a recent Las Vegas personal injury trial, the defense lawyers tried to attack the injured party’s medical treatment. The issue was that they did not have any medical evidence to support their attacks. Reyes v. Neives: Docket No. 69724 (Order of  Affirmance, Feb. 28, 2017).
The Nevada Court of Appeals had to determine whether the trial court made the right call by preventing the defense lawyers from cross-examining the injured party on the reasonableness and necessity of her medical treatment and costs.

The first thing the appellate court did was note that the trial court has wide discretion in determining whether to allow the jury to hear evidence. See State ex rel. Dep't of Highways v. Nev. Aggregates & Asphalt Co., 92 Nev. 370, 376, 551 P.2d 1095, 1098 (1976). In discussing the issue, the court noted that Nevada law is clear that a party "is not entitled to build a case on the gossamer threads of whimsy, speculation, and conjecture." Wood v. Safeway, Inc., 121 Nev. 724, 732, 121 P.3d 1026, 1031 (2005).

In the end, the higher court determined that issues of reasonableness and necessity of medical treatment and costs, required knowledge beyond that which a layperson would possess. To support her case, the injured party submitted evidence showing that injuries were caused by the accident and that her medical bills were necessary and reasonable. The injured person also put forth the evidence to the court’s legal standard of a “reasonable degree of medical probability”.

By contrast, the defending party didn’t have any contrary medical evidence. Before the trial started, the judge granted the injured party’s request to prevent the defense attorney from cross examining her on the reasonableness and necessity of her medical treatment. The trial court based its decision on the fact, that in the time leading up to trial, a party has to disclose all of its evidence. In this case, the defense didn’t hire any medical expert or have any evidence to refute the injured party’s medical treatment. The appellate court felt that the trial judge made the right decision.

Next time we will discuss whether constructive notice of a dangerous condition is a question for the judge or jury to decide. 


Wednesday, January 10, 2018

What is Spoliation of Evidence in Las Vegas Personal Injury Trials?

When a party loses important evidence, Las Vegas courts are tasked with determining what penalties should be assigned to the negligent party.  A common example typically goes as follows:  You slip and fall in a local Las Vegas store, sustaining serious injuries. The store is equipped with video cameras and you believe the video footage will show what happened in the fall.  Immediately after your fall, you hire a Las Vegas personal injury attorney, who puts the store on notice to preserve all of the evidence of your fall, including all videos.

The store refuses to take any responsibility for your injuries, so your personal injury attorney files a lawsuit on your behalf. During the exchange of documents and evidence, the store suddenly says that they no longer have the video.

In the legal world, this is called “spoliation of evidence”.  In this example, your personal injury attorney will ask the Court let the jury know about this missing evidence.  The Court may direct the jury to assume that had the evidence been saved, it would have been favorable to the injured party. The logic behind this stems from the premise that if the evidence was beneficial to the negligent party, they would have actually kept the favorable evidence.

In a recent case from our Court of Appeals, the court was tasked to determine the effect of the hospital and cleaning company’s failure to keep important documents. Waters-Maria v. Valley Health Systems, LLC, No. 69455 (Nev. 2017).

In the Valley Health Systems case, a person slipped and fell on a wet floor in a hospital restroom.  When neither the hospital nor the cleaning company took responsibility for the injured party’s fall, she filed a lawsuit.  During the court process, the injured person’s lawyer determined that the cleaning company didn’t keep any of their cleaning records. The lawyer argued that the cleaning records would have showed negligence on the part of the cleaning company.

Once trial was done and case was to be submitted to the jury for their decision, the injured party’s attorney asked for an adverse inference instruction for the discarded cleaning assignment documents. The trial court refused to give the jury the proposed instruction. In the end, the jury found in favor of the hospital and cleaning company.

In discussing its decision, the appeals court cited to the following relevant case and statute:

  • NRS 47.250(3) creates a rebuttable presumption that evidence intentionally destroyed to harm another party would be adverse if produced. Bass-Davis v. Davis, 122 Nev. 442, 448-450, 134 P.3d 103, 106-08 (2006). However, if "evidence is negligently lost or destroyed, without the intent to harm another party[,] [i]nstead, an inference should be permitted." Id. 
Based upon the above language, one would think that the injury party would be able to get the “adverse inference” instruction to the jury. However, both the trial and appeals court noted that during the long exchange of documents and discovery phase, the injury party’s personal injury lawyer failed to bring up the issue of the missing documents. As a result, they were stopped from bringing it up at the end of trial. 

What does this mean for Las Vegas personal injury cases? Your personal injury attorney should bring up missing documents to the court’s attention as soon as possible. 

Next time, we will talk about cross examining an injured person on their treatment at the time of trial.

Monday, December 4, 2017

What are Black Box Event Recorders in Cars?

New technology brings exciting changes to the personal injury landscape. All new cars on today’s roads have “black box” event data recorders.  How do you know if your car has a black box?  According to recent federal regulations, all news cars made after September 1, 2014 must have a black box installed. What happens if you are in a car accident and the at fault driver’s insurance company wants to download the data on your car’s black box?

The good news is that the Nevada State Legislature has determined you don’t have to allow the insurance company access to this information, without a Court Order. The law on this is located in Nevada Revised Statute §484D.485(2)(b).  The law says that:

      2.  Except as otherwise provided in this section, data recorded by an event recording device may not be downloaded or otherwise retrieved by a person other than the registered owner of the vehicle. Data recorded by an event recording device may be downloaded or otherwise retrieved by a person other than the registered owner of the vehicle:
      (b) Pursuant to the order of a court of competent jurisdiction.

Based on the above Nevada law, only the car owner can download the black box data. If the at fault party’s insurance company wants to download the data, they have to get a Court Order.

Not all accidents activate the black box. Notably, rear end collisions do not trigger the recorder. So, in most common type of car accident, you will not have to deal with this issue.

Next time, we will talk about “spoliation of evidence” in Las Vegas personal injury trials.

Monday, November 6, 2017

When Do Medical Liens Come into Evidence, in Las Vegas Personal Injury Trials?

Today’s topic is on the extremely important case from the Nevada Supreme Court, clarifying when medical lien evidence is excluded at trial. See Pizarro-Ortega v. Cervantes-Lopez, 133 Nev. Ad. Op. 37, (June 2017). In most personal injury cases, doctors treat injured people on a lien.

In this new case, the at-fault party wanted a new trial, because the trial judge didn’t let the jury hear evidence that injured party’s treating doctors were waiting to get paid on their medical liens.

According to the at-fault driver’s lawyer, this evidence would have been relevant to show the treating doctors were biased. The defense attorney wanted to argue that because the doctors treated on a lien, they had an incentive to state the cost of medical treatment was related to the accident at issue. This in-turn would allegedly result in a bigger award for the injured party, something the defense attorney didn’t want. 

Interestingly, just last year, our high court decided that liens may be admitted in trial to show bias, depending upon the terms of the lien. Khoury v. Seastrand, 132 Nev., Adv. Op. 52, 377 P.3d 81, 94 (2016).

However, in looking at a similar issue a year later, the Nevada Supreme Court determined that the “degree of relevance is "limited," particularly when the medical liens indicate the plaintiff will still be responsible for his or her medical bills if he or she does not obtain a favorable judgment. Here, and despite not having the benefit of the subsequently issued Khoury decision, the district court determined the liens would be of limited relevance for the same reason put forth in Khoury.” FCHl, 130 Nev., Adv. Op. 46, 335 P.3d at 188. 

Additionally, the trial judge believed that introduction of medical liens would not simply show that injured party’s treating doctors were biased, but that they "would have a motivation to lie." The trial judge court excluded evidence of the medical liens based on the court's belief that the “limited probative value of the liens would be substantially outweighed by the unfairly prejudicial effect of coloring respondents' doctors as liars.” See NRS 48.035(1).

The Nevada Supreme Court stated that the lower court's distinction between "bias" and "motivation to lie" was nuanced. Yet notably, the defense did not address whether the trial judge erred in drawing that distinction. Thus, in light of the medical liens' limited relevance and the defense attorney’s failure to address the trial judge’s basis for determining the liens would be unfairly prejudicial, the high court was not persuaded that the lower court abused its discretion in excluding the medical lien evidence.

What does this mean for Las Vegas personal injury trials? That it is up to the discretion of the individual trial judges on whether evidence of medical liens is excluded at trial.

Next time, we will talk about “black box” event recorders in cars and trucks.

Thursday, October 12, 2017

What Counts as Attorney Misconduct in Las Vegas Personal Injury Trials?

Trials are an exciting and dynamic time in personal injury cases. One of the key issues at trial, is what amount of damages the injured party is entitled to receive. Sometimes at trial, one lawyer points the finger at the other lawyer.  In those cases, they claim that the attorney acted inappropriately in front of the jury, when arguing what the injured party should receive in damages. In a recent Nevada high court case, the court looked at whether the attorney for the injured party engaged in any attorney misconduct. See Pizarro-Ortega v. Cervantes-Lopez, 133 Nev. Ad. Op. 37, 17-201718 (June 2017).
In Pizarro-Ortega, after the jury gave a high damage award, the at fault party appealed the jury’s decision to the Nevada Supreme Court. They argued that the injured party’s attorney improperly argued damages at the close of trial. See NRCP 59(a)(2). During the end of the trial, the injured party’s attorney made the following statements:

"You have important power and important duty and a service that you provided here for us today. And you have two options. If your verdict is too low, then that tells people they can get away with breaking the rules."

After the other side objected and the judge instructed the attorney to change his closing arguments, the attorney stated:

"Just so we're clear, when you go into that jury room and reach this verdict, your verdicts are read. Plaintiff reads it, the defense reads it. Other people... here in the courtroom, read it. Your verdict might even hit the paper. Verdicts hit the paper. The reason they do that is because people read verdicts. And verdicts shape how people follow the rules. I submit to you the evidence in this case. If you return a verdict that is too low, people don't follow the rules."

The defense attorney claimed that the above was not allowed, because it amounted to a "golden rule" argument. Golden rule arguments are prohibited under Nevada law. See Lioce v. Cohen, 124 Nev. 1, 20-23, 174 P.3d 970, 982-84 (2008).

“[A]ttorneys violate the 'golden rule' by [(1)] asking the jurors to place themselves in the plaintiffs position or [(2)] nullify the jury's role by asking it to 'send a message' to the defendant instead of evaluating the evidence." Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 368-69, 212 P.3d 1068, 1082 (2009) (quoting Lioce, 124 Nev. at 20-23, 174 P.3d at 982-84 (emphasis added)).

Applying the above law, the court was not persuaded that the lawyer’s comments during closing arguments amounted to a “golden rule” argument. See Lioce, 124 Nev. at 20, 174 P.3d at 982. The court felt that it did not appear that the lawyer asked the jurors to place themselves in injured party’s position. Second, to the extent that the attorney’s comments could be construed as asking the jurors to "send a message," the lawyer asked the jury to do so based on the evidence. See Gunderson, 130 Nev. at 77-78, 319 P.3d at 613-14.

So, although the Nevada Supreme Court does not expressly approve of "send a message" arguments, such arguments are not prohibited so long as the attorney is not asking the jury to ignore the evidence. Id.

In the end, the high court denied the at fault party’s request for a new trial, based on this issue.

Next time, we will talk about when medical liens come in at trial.

Monday, September 11, 2017

Do Future Medical Costs Have to Disclosed Before Trial?

Today’s blog deals with when you have to disclose future medical costs in personal injury trials. A recent case illustrates this point. Christian Cervantes-Lopez was in a car accident. Christian injured his back so badly in the crash, one of his treating doctors thought Christian would eventually need his back fused. His surgeon, Dr. Kaplan, put the surgical recommendation in Christian’s medical records. But, he didn’t put how much it would cost. Instead, on the eve of trial, Dr. Kaplan said it would cost $224,100. See Pizarro-Ortega v. Cervantes-Lopez, 133 Nev. Ad. Op. 37, 17-201718 (June 2017).
Over the defense attorney’s objections, the trial court allowed the jury to hear evidence. In response to this surprise evidence, the defense called its own doctor to the stand. Their doctor, Dr. Duke, said the cost of the surgery should be about half that cost, about $120,000.

The defense also wanted a registered nurse, Tami Rockholt, to testify as a "medical billing expert" regarding the reasonableness of Christian’s medical bills. The trial court determined that Nurse Rockholt couldn’t testify about the bills. But, since Dr. Duke was able to give his opinion on cost, the high court felt the defense did in fact have someone who was able to testify as to Christian’s medical bills. When the jury awarded Christian almost the full cost of his future surgery, the losing party appealed the case to the Nevada Supreme Court.

In looking at the case, the high court said Christian’s lawyers should have provided the cost of the surgery earlier. But, since Dr. Duke had an opportunity to give his own opinion as to the cost of surgery, there was ‘no harm, no foul’ in letting the jury hear the evidence. The court made it a point to note that the at fault party wasn’t arguing whether Christian's future back surgery was necessary, but only whether the cost was reasonable.

The court first looked at the civil court rules which requires a party to produce, "without awaiting a discovery request ... [a] computation of any category of damages claimed." See Nevada Rule of Civil Procedure “NRCP”, Rule 16.1(a)(l)(C).  The court went on to note, that an injured party’s treating physician does not need to provide an expert report under Rule 16.1 and can testify regarding any opinions he or she formed during the course of treating the plaintiff. This is so long as all documents supporting those opinions are disclosed to the defendant. See FCH1, LLC v. Rodriguez, 130 Nev., Adv. Op. 46, 335 P.3d 183, at 189-90 (2014). 

The high court went on to say, if the trial court made a mistake in on evidence, that mistake had to "materially affect the substantial rights of [the] aggrieved party", to have the parties go through the ordeal of a new trial. See NRCP, Rule 59(a). The high court didn’t think any substantial rights were materially affected.

Interestingly, Christian’s lawyers tried to argue that “there has been a general understanding amongst Nevada attorneys practicing in state court that there is no requirement to provide a cost computation for future medical expenses.” The court didn’t buy this argument.  Instead, they said “litigants are not free to disregard the rules of civil procedure, including NRCP 16.1(a)(1)(C).”

The court noted that that the purpose of providing an amount of damages was not to give an exact dollar figure, but to "enable the defendants to understand the contours of their potential exposure and make informed decisions regarding settlement and discovery." (citation omitted).

The at fault party tried to argue that had Dr. Duke been given more time to review Dr. Kaplan's cost estimate, the jury might have agreed with Dr. Duke’s lower cost estimate. The Nevada Supreme Court didn’t buy that argument either. The court said that the at fault party didn’t explain what additional testimony Dr. Duke could have provided regarding Dr. Kaplan's surgery estimate.

Instead, the court felt that Dr. Duke should have been able to provide such testimony, even given the time constraints, because he performs the same type of surgery and because he was Dr. Kaplan's former practicing partner. The court pointed out that it appeared that the jury did give weight to Dr. Duke's opinions, as the amount awarded for Christian's surgery ($200,000) was less than Dr. Kaplan's $224,100 estimate.

Next time, we will talk about how to argue damages at trial.