Wednesday, September 21, 2016
Serving a foreign corporation with lawsuit documents would seem pretty straightforward according to the Hauge Convention. However, a recent case from the Nevada Supreme Court has shattered that picture. See Grupo Famsa v. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. No. 29 (2016).
In Grupo, the Nevada Supreme Court looked at whether service of process on a foreign company was done properly. On the facts of the case, the plaintiff filed a lawsuit against a Mexican company. The plaintiff’s Las Vegas Personal Injury Lawyer then served the Mexican company with the lawsuit paperwork in Mexico, via the Hague Convention.
The Hague Convention requires all countries who are part of it, to "designate a “Central Authority” to carry out service of lawsuit documents on its own companies and people. It is up to the country’s “Central Authority” to serve the defendant according to local law. The local government then provides the official paperwork outlining who was served, how they were served and at what time and place. This information is then provided to Las Vegas Personal Injury Lawyers for their Nevada suit.
Despite going through this process, our high court has now said that it was not the end of the inquiry. The Nevada Supreme Court noted that the trial court has to look at the facts on a case by case basis and may even have to hold an “evidentiary hearing”, to determine if the foreign service was lawful.
In Grupo, the Mexican “Central Authority” issued a certificate of compliance, saying a Grupo representative, Claudia Martinez, was served with the lawsuit documents. The “Central Authority” said Ms. Martinez was part of Grupo's legal department. In fighting the lawsuit, Grupo claimed that Ms. Martinez was in fact a hostess and in no way connected to their legal department.
In looking at the facts of the case, the Nevada Supreme Court said that just because Ms. Martinez was not an agent or representative of Grupo, Ms. Martinez may have given the paperwork to the proper person within Grupo, letting them know of the lawsuit. The Grupo court went on to say:
"Due process merely requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action." (internal quotation marks omitted)). "[W]hether a particular method of notice is reasonable depends on the particular [factual] circumstances." Tulsa Prof 1 Collection Servs., Inc. v. Pope, 485 U.S. 478, 484 (1988).
Although the above quote seemed to provide guidance, the Grupo court decided to throw in a zinger to all Las Vegas Personal Injury Attorneys. The Nevada high court said the Mexican ‘Central Authority's’ service efforts may have amounted to no more than handing off judicial documents to the equivalent of "a greeter at Wal-Mart".
Considering Grupo was fighting the lawsuit in the Nevada courts, it leads one to believe that they in fact received notice of the lawsuit … but, I digress. If after you read the Grupo case, you come away with the conclusion that there is no bright line test to determine whether service of process was properly done, it is because there is none. In the end, the court said it is up to the trial court to determine whether service was proper.
Next time, we will talk about the exciting new developments for personal injury cases in Justice Court.
Tuesday, September 13, 2016
When someone is injured in an accident and suffers ongoing injury, sometimes your Las Vegas Personal Injury Attorney and opposing side may both hire doctors to serve as expert witnesses. But, what happens when one side hires an expert, yet later decides they don’t want to call their expert at trial? The Nevada Supreme Court has said that it is ultimately up to the trial court to decide this issue. See McClendon v. Collins,132 Nev. Adv. Op. No. 28 (2016).
In McClendon, Diane Collins rear-ended a car driven by Ja Cynta McClendon. Collins’ defense lawyer designated an expert medical physician, Dr. Eugene Appel, who provided an expert witness report to back up his opinions. Collins’ defense lawyer later decided to withdraw Dr. Appel from their witness list. Surprisingly, McClendon’s lawyer wanted to use Dr. Appel as her own expert witness! The trial court wouldn’t allow this expert swap. The jury ultimately found that McClendon wasn’t injured by any fault of Collins. Unhappy with the result at trial, her lawyer appealed the decision to the Nevada high court.
In looking at the case after trial, the Nevada Supreme Court decided that such a “de-designated” expert could have their deposition taken or be called to testify at trial by an opposing party. But, whether this would be allowed, would rest on a case by case analysis, done by the trial court. The court went on to say that there is no 'entitlement' of the opposing party to depose or use another party's expert at trial." House, 168 F.R.D. at 246. Id.
The McClendon Court was also clear in saying just because a stricken witness may be called as a witness in trial or at a deposition, doesn’t mean the other side can adopt the other party’s expert as their own. The Court said "[t]here is a strong policy against permitting a non-diligent party from free-riding off the opponent's industry and diligence." Of course, your experienced Las Vegas Personal Injury Attorney will make sure that if an expert is needed, they will have their own expert timely disclosed to the other side.
An additional issue in this situation is whether evidence of the opposing party's “dropping” of their original expert is admissible evidence at trial. Notably, the Nevada Supreme Court said that juries are NOT allowed to hear this evidence. The Court reasoned that such evidence could "destroy counsel's credibility in the eyes of the jury" because "[j]urors unfamiliar with the role of counsel in adversary proceedings might well assume that …. counsel had suppressed evidence which he had an obligation to offer." Peterson, 81 F.3d at 1037. If you have questions about expert witness designations, talk to your Las Vegas Personal Injury Attorney about this important topic.
Next time, we will talk about serving foreign corporations with lawsuit documents.