Wednesday, April 18, 2018
Recently, both the Nevada Supreme Court and Nevada Court of Appeals each came out with case law discussing the standard of law for juror misconduct, during the jury selection process of voir dire. However, both cases cite to a different standard on when you get a new trial based on juror misconduct. At first, I thought one was relating to juror misconduct, while the other dealt with juror bias. But, both actually deal with juror misconduct, as it relates to bias.
The two cases cite to different standards of law on the same topic. You might be saying to yourself, that since one was a Nevada Supreme Court case, it would control over the Appellate Court case. But, the Appellate case cited to another Nevada Supreme Court case on the issue.
I then thought to myself, that since one was a civil case and the other a criminal case, that could potentially be the singular difference. But, I believe the criminal case could still be used to argue why you should get a new trial. Additionally, the holding did not categorically say it only applied in the criminal context. Hence you see my quandary.
In the end, I decided to create two separate blog posts on the issue. I concluded that the Appellate Court cited to the wrong standard. The Nevada Supreme Court’s case on juror misconduct related to bias is one standard. However, true juror misconduct on doing independent investigations, is a different standard.
You can decide for yourself on these issues. People, and especially lawyers, tend to look at the same thing and disagree. Practicing law is an art and art is subjective. This is where the fun and beauty of the law resides. But enough of my meanderings.
Looking into the Nevada Supreme Court case, we come to Brioady vs. State of Nevada. Although it was a criminal case, it has implications for civil personal injury trials in Nevada. See 133 Nev., Adv. Opinion 41 (2016).
As you may know, one of the first events to take place in a trial, is where group of potential jurors are asked questions to determine if they could be fair and unbiased. This is the jury selection process, called voir dire.
During this initial questioning process, the Brioady trial judge told the potential jurors of the importance of giving full and honest answers to any questions asked. When asked, "Has anybody been a victim of a crime? many people who responded said Yes. A person in the jury pool, who would later be Juror No. 3, was silent. The case centered around allegations of molestation. The prosecution extensively questioned the potential jurors who had been molested, if they could actually be impartial.
After the defendant was convicted of molestation, two of the jurors informed his lawyer that Juror No. 3 told them, once they were back in the jury deliberation room, that she had in fact been a victim of molestation, but failed to bring it to the court’s attention. Juror No. 3 claimed she did not volunteer that fact, because she believed she could be a fair and impartial juror and did not consider herself to be a victim. The case was ultimately appealed to the Nevada Supreme Court. The high court had to determine if Juror No. 3’s failure to honestly answer questions, prevented the defendant from receiving a fair and impartial trial, necessitating a new trial.
In discussing the law on the request for a new trial, on the basis of juror misconduct during voir dire (jury selection process), the court noted that a defendant must demonstrate (1) that the juror at issue failed to honestly answer a material question, and (2) that a correct response would have provided a valid basis for a challenge for cause. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); see also Lopez v. State, 105 Nev. 68, 89, 769 P.2d 1276, 1290 (1989). Based on the facts of this case, the high court felt that the defendant wasn’t given a fair and impartial jury panel and that the whole trial had to be re-done.
With respect to the "honesty" prong of this inquiry, the court noted that "[t]he motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial." United States v. Edmond, 43 F.3d 472, 473 (9th Cir. 1994) (quoting McDonough, 464 U.S. at 556). Generally, this "determination ... turns upon whether or not [a juror] is guilty of intentional concealment." Lopez, 105 Nev. at 89, 769 P.2d at 1290 (quoting Walker v. State, 95 Nev. 321, 323, 594 P.2d 710, 711 (1979)).
In this situation, the court felt that the question of Juror No. 3’s ability to be impartial was not a determination for her to make. In reviewing the post-trial record, the high court noted that her incident of molestation was serious enough that Juror No. 3 discussed the incident with a therapist as an adult. Juror No. 3 also still regarded the molestation as a "serious secret." Juror Three's testimony at the post-trial hearing demonstrated that she knowingly failed to honestly answer a question during voir dire.
Given the nature of the allegations in this case, a truthful response by Juror No. 3 would have very likely provided a basis for a challenge for cause. Based upon Juror No. 3’s misconduct, the Nevada Supreme Court concluded that a new trial was warranted.
Next time we will continue on this topic of juror misconduct and bias.
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
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
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.
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
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
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
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.