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Does Uncovered Jury Bias During Voir Dire Form the Basis for a New Jury Trial?

Wed, 18 Apr 2018 19:27:00 +0000

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, bu[...]

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

Thu, 08 Mar 2018 17:21:00 +0000

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 250-5[...]

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

Thu, 08 Feb 2018 20:48:00 +0000

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. 


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

Wed, 10 Jan 2018 18:46:00 +0000

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. [...]

What are Black Box Event Recorders in Cars?

Mon, 04 Dec 2017 18:43:00 +0000

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.

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

Mon, 06 Nov 2017 20:20:00 +0000

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.

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

Thu, 12 Oct 2017 15:44:00 +0000

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.[...]

Do Future Medical Costs Have to Disclosed Before Trial?

Mon, 11 Sep 2017 18:02:00 +0000

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 c[...]

How Does Bankruptcy Affect a Personal Injury Settlement in Las Vegas?

Mon, 14 Aug 2017 19:34:00 +0000

Today’s blog talks about how bankruptcy can affect personal injury settlements. Recently, the Nevada Supreme Court had to decide whether a person could have more than one active personal injury claim while still in bankruptcy. See Kaplan v. Dutra, 132 Nev. Adv. Op. No. 80 (2016). The high court determined that the injury party, who was also in bankruptcy, was entitled to get benefits from more than one personal injury claim. In the Kaplan case, David Kaplan had two active personal injury claims. Kaplan was involved in a dog bite attack, where he injured his back. After the dog attack, Kaplan had back surgery. With a seemingly stream of bad luck, just six weeks later, Kaplan was rear-ended in a car accident. The car accident caused the need for Kaplan to undergo a second back surgery.Kaplan filed personal injury claims for both injuries. Kaplan later filed for bankruptcy. His two personal injury cases settled and he was set to receive his share of the settlement funds from both cases. Nevada law allows for injured debtors to take $16,150 of their personal injury settlement for themselves.  See NRS 21.090(1)(u), Kaplan asked the Court to allow him his two $16,150 exemptions. The person in charge of overseeing Kaplan’s bankruptcy, the Trustee, thought that Kaplan should only get one $16,150 exemption. In reviewing both parties’ arguments, the Nevada Supreme Court sided with Kaplan. The high court determined that Kaplan would be allowed to recover on both his dog attack and car accident case. “We conclude that under NRS 21.090(1)(u), a debtor is entitled to multiple personal injury exemptions of $16,150 on a per-claim basis.” Specifically, NRS 21.090(1)(u) provides an exemption for [p]ayments, in an amount not to exceed $16,150, received as compensation for personal injury, not including compensation for pain and suffering or actual pecuniary loss, by the judgment debtor. . .  The Nevada Court has previously noted that "[w]e liberally and beneficially construe our state exemption statutes in favor of the debtor." In re Christensen, 122 Nev. 1309, 1314, 149 P.3d 40, 43 (2006). "The purpose of Nevada's exemption statutes is to secure to the debtor the necessary means of gaining a livelihood, while doing as little injury as possible to the creditor." Savage, 123 Nev. at 90, 157 P.3d at 700 (internal quotation marks omitted).  So, if you are in involved in a personal injury case and have an active bankruptcy, you will be allowed a maximum of $16,150 for each personal injury case you have. Next time, we will talk about when you have to disclose future medical costs in personal injury trials.[...]

Are There Differences in Subjective Versus Objective Injuries in Las Vegas Trials?

Fri, 21 Jul 2017 20:06:00 +0000

This month’s blog is a follow up to our previous discussion of the Behr case, on what damages can be awarded to an injured party at trial. As readers may recall from last month’s blog post, the Behr case dealt with an alleged brain injury following a car accident. See the unpublished opinion from the Nevada Court of Appeals. Behr v. Diamond, No. 66612 (Nev. App., 2015).  The Behr court determined that a claim for future pain and suffering on subjective injuries must be supported by expert testimony. Expert testimony is needed to establish that "[F]uture pain and suffering is a probable consequence rather than a mere possibility." Lerner Shops of Nev., Inc. v. Marin, 83 Nev. 75, 79-80, 423 P.2d 398, 401 (1967). A subjective disability was defined as one that was not visible to others. Common examples of subjective injuries were: headaches and low-back pain, as well as mental worry and distress. See Gutierrez v. Sutton Vending Serv., Inc., 80 Nev. 562, 566, 397 P.2d 3, 4-5 (1964) and Sierra Pac. Power Co. v. Anderson, 77 Nev. 68, 75, 358 P.2d 892, 896 (1961). By contrast, objective injuries included shoulder injuries that caused an observable limited range of motion or broken bones. Krause Inc. v. Little, 117 Nev. 929, 938, 34 P.3d 566, 572 (2001). The court held that objective injuries do not require expert testimony because "the extent to which a broken bone causes pain and suffering is common knowledge." Id.In Behr, the court awarded future pain and suffering for the injured person’s post-concussion syndrome and headaches. The trial court explained, "I believe that Heather's pain and suffering in the past and in the future is related to post-concussion syndrome. And it's real, and headaches can be very debilitating and are worthy of compensation just as—just as if there were a broken bone." The appellate court struck down the trial court’s ruling, since headaches and shoulder pain are subjective injuries and require expert testimony to establish whether pain and suffering will continue into the future. See Sierra Pac. Power Co., 77 Nev. at 75, 358 P.2d at 896. Generally speaking, a shoulder injury that reduces one's range of arm motion is an objective injury and thus, a plaintiff's testimony alone can support an award of future damages. See Krause Inc., 117 Nev. at 938, 34 P.3d at 572. Here, however, the injured party said she no longer experienced problems with her shoulder and that she could "throw a softball" and "pick up a bale of hay" with no problem. The Behr court also struck down the award for future pain and suffering for post-concussion syndrome and headaches. According to the experts who testified at trial, the symptoms of post-concussion syndrome were nausea, vomiting, memory problems, fatigue, personality changes, headaches, dizziness, depression, anxiety and insomnia. Because the court could not readily observe these injuries, expert testimony was needed to establish future pain and suffering. See Gutierrez, 80 Nev., at 566, 397 P.2d at 4-5.The Behr case is interesting in that the Nevada appellate court made a distinction not only between past and future damages, but also subjective versus objective injuries. Next time, we will talk about how bankruptcy affect personal injuries settlements. [...]

How can a Jury Award Pain and Suffering in Las Vegas Trials?

Thu, 15 Jun 2017 16:45:00 +0000

An interesting case recently came out of our new Nevada Court of Appeals concerning pain and suffering. Behr v. Diamond, No. 66612 (Nev. App., 2015). Although an unpublished opinion, lessons can be learned from the trial and post-trial analysis. In the Behr case, the jury found in favor of the injured party. However, court struck down the jury’s award for future pain and suffering.In the accident, the injured party hit her head. She lost consciousness and later had a seizure. She suffered a concussion and doctors later diagnosed her with post-concussion syndrome. Later medical tests also revealed that her brain tissue was jolted and that she had a shoulder tear. The injured party later underwent two brain surgeries to alleviate her brain injuries. She also had surgery to repair the tear in her shoulder. However, the at fault party claimed the injured party’s surgeries were not caused by accident. After hearing the evidence, the court found the brain surgeries were not related to the incident. Yet, the court felt that the injured party suffered other significant problems as a result of the accident. In addition to past damages, the court awarded damages for future pain and suffering.  On appeal the court said they would not reduce an excessive damages award that was given under the influence of passion or prejudice and when it shocks the conscience. Hernandez v. City of Salt Lake, 100 Nev. 504, 508, 686 P.2d 251, 253 (1984).   The Behr court cited authority that a jury is given wide latitude in awarding damages for medical bills. Countrywide Home Loans, Inc. v. Thitchener, 124 Nev. 725, 737, 192 P.3d 243, 251 (2008). And damages for pain and suffering are peculiarly within the jury's province.  Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 454-55, 686 P.2d 925, 932 (1984). "[T]he mere fact that the verdict is a large one is not conclusive that it is the result of caprice, passion, prejudice, sympathy or other consideration. . . ." Wells, Inc. v. Shoemake, 64 Nev. 57, 74, 177 P.2d 451, 460 (1947).The court went on to say that a claim for damages for future pain and suffering arising from subjective physical injury must be supported by expert testimony to the effect that "future pain and suffering is a probable consequence rather than a mere possibility." Lerner Shops of Nev., Inc. v. Marin, 83 Nev. 75, 79-80, 423 P.2d 398, 401 (1967).  The outcome of this case is to know that a jury has wide latitude in award damages for past and future pain and suffering. However, when it comes to subjective injuries, their hands are somewhat tied, unless there is supporting medical evidence.  Since the discussion of this case is so important, this blog will be broken down into two parts. Next time, we will talk about objective versus subjective injuries in jury trials.[...]

Is There a Difference When Claiming Past Versus Future Damages in Trial?

Mon, 22 May 2017 21:09:00 +0000

In a somewhat typical car accident, Doron York, caused a car accident. As a result of York’s negligence, Emmett Smith was injured in the accident. See York v. Smith, 367 P.3d 821 (Nev., 2010).  When the case didn’t settle, Smith sued York. At trial, the jury agreed that Smith had been injured the accident and awarded him damages. After hearing all of the evidence, the jury awarded Smith damages for both past and future damages.  The future damages were allocated to allow Smith to pay for a possible future ankle surgery. Not liking the award, the at fault driver appealed the decision to the Nevada Supreme Court. The Nevada high court determined that the jury was indeed out of bounds for making its award. We will go into detail about what happened at trial.At trial, the injured party, Smith, put a medical expert on the witness stand. Smith’s expert stated that future surgery was just one of many possible future treatment options for Smith. The expert also noted that Smith hadn’t actually decided whether he was in fact going to have surgery in the future. The Nevada Supreme court dinged the trial results because the injured party’s expert didn’t address the likelihood that his patient would undergo a specific treatment option. The court also noted that the expert failed to state whether there was a “reasonable degree of medical probability” that the surgery was actually necessary. See Banks v. Sunrise Hospital, 120 Nev. 822, 834, 102 P.3d 52, 61 (2004) ("Generally, a medical expert is expected to testify only to matters that conform to the reasonable degree of medical probability standard.") (quotations omitted). In discussing the defects with the injured party’s expert, the high court said that a person seeking future medical expenses "must establish that such future medical expenses are reasonably necessary," Hall v. SSF, Inc., 112 Nev. 1384 1390, 930 P.2d 94, 97 (1996), and that the contemplated damages are reasonably certain to be incurred. See Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 249, 955 P.2d 661, 671 (1998)(indicating that in order to recover future medical expenses, a plaintiff must show "a reasonable probability that such expenses will be incurred." (citing Saide v. Stanton, 135 Ariz. 76, 659 P.2d 35, 37 (Ariz.1983)); Nev. J.I. 10.02 (providing that recoverable future medical expenses are those that a jury believes a plaintiff "is reasonably certain to incur.").As a result of the court’s decision, the court reduced the jury's verdict for future medical expenses by the cost of the proposed ankle surgery. What does this mean in personal injury trials?  Past damages can be stated to the lower, reasonable degree of probability. But, by contrast, future damages are held to higher standard, that of a reasonable degree of certainty.During this process, the court also deleted the jury’s entire award for future pain and suffering.  Next time, we will talk about this important issue.  [...]

What Happens When You have Workers Compensation and Personal Injury Claim?

Thu, 06 Apr 2017 22:24:00 +0000

William Poremba was driving as part of his job for Southern Nevada Paving. While driving, he got into a car accident. See Poremba v. S. Nev. Paving, 133 Nev. Adv. Op. 2 (Jan. 26, 2017). William later filed a workers’ compensation claim through his employer. Since the accident wasn’t his fault, William also made a personal injury claim against the driver that hit him. William ultimately settled his personal injury claim.

As is typical in most settlements, the settlement agreement didn’t specify how the funds were to be allocated. For example, there was no mention how much of the settlement would go towards for pain and suffering, medical bills or lost wages.

After he was done treating and his personal injury case settled, William tried to go back to work.  However, when William tried to go back to work, he realized that he needed additional medical care through the worker’s compensation program. However, William’s request to reopen his worker’s compensation claim was denied. William appealed the decision and was again told he couldn’t re-open his worker’s compensation case. Not be deterred, William’s lawyer took his case all the way up to the Nevada Supreme Court.

In discussing whether his claim could be re-opened, Nevada’s high court, concluded that William’s case could in fact be re-opened. The court said that worker’s compensations insurers could be paid back for medical bills that they paid, but are NOT entitled to reimbursement from the portion of the settlement designated for pain and suffering or lost wages.  See NRS 616A.090.

What does this mean for your personal injury case? If you have a worker’s compensation component to your personal injury case, worker’s compensation can only get paid back for medical treatment that they provided. Any monies you receive for pain and suffering or lost wages cannot be taken by worker’s compensation program.

Next time, we will talk about claiming past versus future damages in trial.  

Can an Insurance Company Write a Reservation of Rights Letter and Still Have the Insurance Lawyers Represent the Insured Driver?

Thu, 16 Mar 2017 17:45:00 +0000

You cause a car accident and get sued. Now what? Part of having car insurance means your insurance company has to hire a lawyer to defend you in lawsuits. What happens if your insurance company thinks you didn’t have coverage for the acts alleged against you? Your insurance company can write a “reservation of rights” letter, saying that they will hire a lawyer to represent you. But if it turns out that you acted intentionally or did something else that is “excluded” under your policy, your insurance company will not have to pay any damages. This issue came up after a rowdy house party in Las Vegas. See State Farm Mutual Insurance Company v. Hansen, 131 Nev.Ad.Op. 74 (2015).In the Hansen case, Stephen Hansen went to a house party. When things got out of control, Stephen tried to leave. To keep Stephen and the fight going, some of the party guests tried to prevent Stephen from leaving the party. Eventually Stephen drove off. But, as luck would have it, the party was in a gated community. In waiting for the gates to open, one of the party guests, Brad Aguilar, rammed his car into Stephen’s car. Stephen later filed a lawsuit against Brad for his injuries. Brad was insured by State Farm. State Farm initially agreed to defend Brad. But, they wrote Brad a “reservation of rights”. The letter said they would pay one of their lawyers to defend him, but they may not pay out any judgment. This is because insurance companies agree to pay claims for “negligent” or careless acts, but not “intentional” ones, like Brad intentionally ramming his car into Stephen’s car! Go figure, you can’t vandalize a neighbor’s house and expect your insurance company to pay for your acts! The issue for the Court in Hansen, was whether it was legal for State Farm to hire a lawyer for Brad, but that they may not pay for damages if it turns out he intentionally tried to hurt Stephen. The seminal case comes out of California, decided over 30 years ago. The case is Navy Federal Credit Union v. Cumis Insurance Society, Inc., 162 Cal.App.3d 358, 208 Cal.Rptr. 494, 506 (Ct.App.1984).   Since the case deals with an attorney or “counsel” for an insured, people generally refer to this as “Cumis counsel”. In Nevada, the ethical rules for lawyers say that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” RPC 1.7(a). In discussing the conflict of interest issue, the Court said:But when an insurer provides counsel to defend its insured, a conflict of interest may arise because the outcome of litigation may also decide the outcome of a coverage determination—a determination that may pit the insured's interests against the insurer's. For example, an insurer will want the litigation outcome to determine coverage in a way favorable to the insurer, such as by deciding that the insured's acts were intentional and therefore not covered. Conversely, the insured will want to be found negligent so that the insurer will pay his liabilities. The Hansen Court confirmed that Nevada is a considered a “dual-representation” state: where the insurance company lawyers represent both the insurance company and its insured. See Nev. Yellow Cab Corp. v. Eighth Judicial Dist. Court, 123 Nev. 44, 52, 152 P.3d 737, 742 (2007). The Court acknowledge that this approach may violate the spirit of the ethical rules that“[a] lawyer shall not accept compensation for representing a client from one other than the client unless .. [t]here is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship.” RPC 1.8(f). When the insurance company picks the lawyer, the Hansen Court noted that ther[...]

Las Vegas Has Begun Testing Driverless Shuttles in Downtown Las Vegas

Mon, 06 Feb 2017 18:26:00 +0000

Las Vegas is on the cutting edge of technology. Designed by a French company, Las Vegas recently unveiled one of the first completely driverless vehicles on public roads. The automatic car was recently driving down the streets of downtown Las Vegas, with no one at the wheel. More importantly, there was no wheel.Las Vegas has created what is called an “Innovation District” in downtown Las Vegas. The completely driverless cars are just part of the innovation Las Vegas wants to create. Similar electric shuttles are being tested in Paris, Singapore, Qatar, New Zealand and Australia. What they all have in common, is that there is no wheel, no brake pedal and no driver. The shuttle uses cameras and sensors to navigate the road. The shuttle operated on Fremont Street in downtown Las Vegas. The Las Vegas shuttle only operated at 12 mph, for a few short blocks and in a dedicated lane. There was a “stop” button, where at least for now, an employee was on board while the shuttle was in motion. For the time being, someone will be in the vehicle to stop the vehicle in case of an emergency. Despite what is happening in Nevada and other states, the Federal Department of Transportation's National Highway Traffic Safety Dept. has previously said that they believe they have the power to set forth national standards. The landscape of laws and technology is changing rapidly, with taxi cab companies, as well as Uber and Lyft wanting a driverless fleet. But, the federal government may issue rulings of its own on this issue. What does all this mean for traffic safety? If you read previous blogs posts on this issue, you will recall that on May 7, 2016, Joshua Brown, a former Navy Seal, was driving his Tesla Model S in Florida. Joshua was driving the car in the “semi-autonomous Autopilot system”, when he was killed in a fatal car crash. Joshua was killed because the Tesla sensor couldn’t “see” a while semi-truck against a bright sky. When there are cars on the road without a steering wheel, instances such as this are possible. Raj Rajkumar, a computer and electrical engineering professor at Carnegie Mellon has pointedly said “There are legitimate safety and security concerns. It will take many years before the technology matures…. If vehicles can get hacked into, bad outcomes will result. These intervening years ought to be used fruitfully for new training programs.” With sensors failing to see big rigs and potential hackers getting to the cars, many issues have to be resolved before completely driverless vehicles take over the roads. Next time, we will talk about conflicts of interests with an insurance company and it’s insured. [...]

Have There Been Any Changes in the Law on Pre-Judgment Interest in Nevada?

Wed, 25 Jan 2017 20:27:00 +0000

We have all seen the orange cones around the city as new freeway construction continues in the Las Vegas Valley. As part of that process, the City of North Las Vegas wanted to take some land to expand the 215. Although it involved the government’s forced sale of private property, eminent domain, the recent case involving the City of North Las Vegas discusses when pre-judgment interest starts on cases. See City of NLV v. 5th & Centennial, LLC 130 Nev.Ad.Op. 66 (August 7, 2014).  Although it dealt with real property, this case might have applications on personal injury cases.

In the City of North Las Vegas case, the trial court calculated pre-judgment interest from the time the lawsuit (Complaint and Summons) documents were served on the City. However, the property owner asserted that interest should start when the acts complained of took place. The Nevada Supreme Court agreed with the complaining party and held: “prejudgment interest should be calculated from the date on which the resulting injury occurred.”  Id.  [Emphasis added.] Whether Nevada trial courts will extend this to personal injury actions remains to be seen. However, this is a potential exciting new avenue in personal injury trials.

What could this mean for personal injury actions?  There could be potential change in when pre-judgment interest is calculated. Nevada has a two year statute of limitations for personal injury actions. For strategic reasons, your personal injury lawyer may wait the full two years to file and serve your lawsuit.  If, during the course of your case, the at fault party is unreasonable and your case ultimately goes to trial and you win, you will be entitled to pre-judgment interest. The accumulation of two years of interest, could mean thousands of dollars in pre-judgment interest, added to the award the jury gives you. This will be up to the trial court and ultimately to the Nevada Supreme Court to clarify if this decision. Whether pre-judgment interest in personal injury claims is calculated from the date on which the resulting injury occurred or from the time the lawsuit documents were served on the at fault party, remains to unfold.

Next time, we will talk about new developments in automated cars on our Las Vegas roadways.

Are Alternative Theories of Medical Causation Allowed in Personal Injury Claims?

Sat, 31 Dec 2016 17:05:00 +0000

To provide a more in depth analysis of Nevada law, starting in 2017, the blog will move to a monthly format.  I hope you enjoy today’s blog and the new format as we move forward in discussing the exciting developments in the ever changing landscape of Nevada law.  Today’s blog addresses alternative theories of causation in a personal injury cases. An interesting case that came out of the Nevada Supreme Court on alternative theories of causation is Leavitt v. Siems, 130 Nev.Ad.Op. 54 (July 10, 2014). In Leavitt, Kami Leavitt underwent Lasik eye surgery with Dr. Siems. Unfortunately, after surgery, Kami ended up losing most of her vision in both eyes. The case went to trial and the jury felt Dr. Siems did nothing wrong. At trial, Siem’s lawyers argued that Kami’s eyes did not heal properly after the surgery because of her own actions. They argued that Kami abused numbing eye drops after the surgery, making her eye problems worse. To support the “eye-drop-abuse” argument, Siems’ lawyers called one of Kami’s own treating physicians and expert witnesses, Ophthalmologist Dr. Stephen Hansen, M.D., to the witness stand. In a strange turn of events, Dr. Hansen testified that he had discharged Kami as a patient for noncompliance. Dr. Hansen also told the jury that felt that Kami was stealing eye drops from his clinic, because bottles went missing after several of her appointments. Dr. Hansen testified that the use of the numbing eye drops may have caused her vision to deteriorate and contributed to her lack of improvement. He also felt that had she followed his directions, her vision could have actually improved after surgery. Not surprisingly, Kami vehemently denied these accusations. But after weighing Kami’s testimony against Dr. Hansen’s account, the jury returned a verdict for the eye doctor, finding that Siems was not negligent and did not cause any harm to Kami. Kami asked the court for a new trial and for a different jury to hear the evidence. But this time, Kami’s lawyers asked the court to prevent Dr. Hansen from recounting his “eye-drop-abuse” theory to the jury, since it wasn’t stated to a “reasonable degree of medical probability”.The court ruled that the defense and plaintiff are held to different standards when it comes to talking about causation in personal injury trials. The court in Leavitt determined, that since the drug-abuse theory was to “contradict” Kami’s theory of negligence and not to propose an “independent alternative causation theory”, the jury was allowed to hear the evidence. The court relied on the recent 2011 case of Williams v. Eighth Judicial District Court, 127 Nev. _, 262 P.3d 360 (2011). The court found that per their ruling in Williams, a defense expert's testimony regarding alternative causation need not be stated to a “reasonable degree of medical probability”, when it is being used to controvert an element of the plaintiffs claim, rather than to establish an independent theory of causation.Accordingly, once an injured party’s causation burden is met, the defense expert's testimony may be used for either cross-examination or contradiction purposes, without having to meet the “reasonable degree of medical probability” standard.  The only caveat, is that the defense has to be supported by relevant evidence or research. Id. The Leavitt court found Dr. Hansen's testimony met these requirements because his assessment was based on his training and experience with numbing eye drops' toxicity through his residency, cornea clinics, and 20 years of clinical experience. The court we[...]

How do You Prove Diminished Value After a Car Crash?

Fri, 16 Dec 2016 17:10:00 +0000

Sometimes after an accident, you don’t have the money to rent a replacement car while your car is getting repaired. Also, if your car is “total loss” and you are waiting weeks for the insurance company to pay for the loss of your car, you might have the funds to pay for a rental. In both scenarios, if you did not receive a rental car, you can ask for “loss of use” damages, for not being able to use your car. If your car was fixed, but sustained extensive damages, you can also ask for “diminished value” damages to your car. The Nevada Supreme Court has said that a party is entitled to have the jury consider her “loss of use damages.” See Dugan v. Gotsopoulos, 117 Nev. 285, 289, 22 P.3d 205, 208 (2001).  In Dugan, our high court held, that the lower court’s refusal to permit a party to testify as to rental car costs and its refusal to permit the jury to consider loss of use damages, was reversible error. Id. Moreover, courts have permitted the party to testify about rental car rates as long as that person had some basis for the valuation. Id. Further, loss of use damages may also be awarded for the inconvenience of loss of use based on individual circumstances, to which the party can testify. Id.  Whether the aggrieved party actually rents a car is irrelevant, because she is still entitled to have the jury consider her loss of use damages. Id. What a reasonable amount to claim for loss of use damages?  Generally, insurance companies will accept $20.00 per day for a rental car. If you have a luxury car, you can ask the insurance company to consider how much it would cost to rent a comparable replacement car. In addition to “loss of use” damages, Nevada law allows for claims to be made, as a result of the diminished value of your repaired property.  See Mort Wallin v. Commercial Cabinet Co., 105 Nev. 855, 857 (Nev. 1989). In Mort Wallin, there wasn’t enough evidence presented to the trial court as the actual diminished value of the property at issue. But, the Nevada Supreme Court determined that “diminished value” is a recognizable loss when property has to be repaired. Other courts in the U.S. have also determined that “diminished value” is a recognizable loss. A Georgia case found that virtually, as a matter of law, wrecked cars have diminished value. See Mabry v. State Farm, 274 Ga. 498, 556 S.E.2d 114 (2001). A District of Columbia case has also done a survey of the law on this issue. See American Service Center Associates v. Helton, 867 A.2d 235 (D.C. App. 2005). Similarly, an Oklahoma Court has said, the overwhelming weight of legal authority supports the rule that damages are not limited to the cost of repairs actually made, where it is shown that repairs failed to bring the property up to the condition it was in prior to the damage. See Brennen v. Aston, Jr., 2003 OK 91. In such cases, the cost of repairs made, plus the diminution in value of the property, will ordinarily be the proper measure of damages.Where in town can you get a Diminished Value Report? Las Vegas Auto Appraisers can be reached at 877.868.9123. Wreck Check Car Scan Centers is another provider of diminished value reports. Their phone number is 800.762.2671. Both have reputations on assessing the diminished value of your car. Next time, we will talk about alternative theories of medical causation in personal injury claims.[...]

How Do You Prove Liability in a Slip and Fall Case?

Wed, 30 Nov 2016 22:00:00 +0000

In a Las Vegas slip and fall case, a property owner is only liable for your injuries if there were on notice of the dangerous condition which caused your fall. Your Las Vegas Personal Injury Attorney therefore has to prove that the owner was on “notice” of the dangerous condition. How is this done? The best way of showing this, is by finding evidence of prior similar falls. This evidence is required, because your Las Vegas Personal Injury Lawyer has to show that the at fault party “knew or should have know” that what caused you to fall, was a known hazard. One would think that the property owner would simply turn this evidence over. However, in your Las Vegas Personal Injury Attorney’s experience, the at fault parties fight tooth and nail before turning over any of this potentially damning evidence. What this means, is that your Las Vegas Personal Injury Attorney has to fight in court, to get a copy of this evidence. The good news, is that your Las Vegas Personal Injury Attorney has been successful in using the court process to get property owners to turn over documents of similar slip and falls. Your Las Vegas Personal Injury Attorney argues to the court, that the at fault party is required to produce all reports of slips, trips, or falls, because the prior injury claims are relevant to establish that a “dangerous condition” existed. Our Nevada Supreme Court has held that evidence of prior accidents may be properly admitted to show notice of a dangerous condition. Southern Pac. Co. v. Watkins, 83 Nev. 471, 483, 435 P.2d 498, 506, (1967). In addition, the Court stated that, although evidence of the type here in question is usually excluded where it relates to a temporary condition which might or might not exist from one day to the other, it may be admissible upon a proper showing that the conditions surrounding the prior occurrences have continued and persisted. Eldorado Club, Inc. v. Graff, 78 Nev. 507, 510, 377 P.2d 174, 176 (1962).When you hire your Las Vegas Personal Injury Attorney, they will make sure to go over the process of establishing liability on the part of the property owner.  Next time, we will talk about Diminished Value of your car after a car crash. [...]

What is the Liability of Rental Car Companies after a Car Crash?

Tue, 22 Nov 2016 16:20:00 +0000

There are three major decisions from the Nevada Supreme Court on the liability of rental car companies after a car crash. The story starts in 1998, in the case of Alamo v. State Farm, where the high court said the rental company has to provide statutory minimums of $15,000 per person/$30,000.00 per accident, in accident coverage. See Alamo v. State Farm, 114 Nev. 154, 953 P.2d 1074 (1998); See also NRS 482.295. Once the court is satisfied that the car rental company has the required insurance, the judge can dismiss the rental company from the lawsuit. See NRS 482.305. Your Las Vegas Personal Injury Attorney will then continue the case against the at fault driver. Less than two years after the Alamo case came out, the issue of car rental company liability was in front of the Nevada Supreme Court again in Salas v. Allstate Rent-A-Car. In Salas, the Court had to determine which insurance policy was first in line to pay for the injuries of an accident victim. The Court stated that since car insurance companies are in the business of evaluating risks and paying out claims, the at fault driver’s personal insurance policy pays before the car rental’s insurance kicks in. See Salas v. Allstate Rent-A-Car 14 P.3d 511(Nev. 2000). The trilogy ends six years later in 2006, in the case of Hall v. Enterprise Leasing. In Hall, the injured person settled with the at fault party and then tried to go after the car rental company, Enterprise, for their policy limits. However, the Nevada Supreme Court determined that the car rental company’s liability is “derivative” or is based on the at fault party’s liability. So, once the at fault party was out of the case, the car rental company had no more responsibility for accident related injuries. See Hall v. Enterprise Leasing 122 Nev. 685 137 P.3d 1104 (2006). This is a very specialized area of law for a Las Vegas Personal Injury Attorney. The Hall case is notable for the fact that going after the car rental company’s insurance can be a trap for the unwary. In short, once you settle and dismiss the at fault driver, you can no longer go after the car rental company for your injuries.   Next time, we will talk about evidence of prior slip and falls. [...]

What are the New Developments in Automated Cars?

Mon, 31 Oct 2016 21:29:00 +0000

Few things affect your Las Vegas Car Accident Attorney more than the automated cars. As you may recall from prior blogs, automated cars are now being tested on our Nevada roadways. Aside from minor accidents, there have been no real catastrophes involving automated cars. That all changed on May 7, 2016 for a driver in Florida.On May 7, 2016, Joshua Brown, a former Navy Seal, was driving his Tesla Model S in Florida, in the “semi-autonomous Autopilot system”, when he was killed in a fatal car crash. In piecing together the events leading up to the crash, investigators determined Mr. Brown wasn’t actually driving his car.  Moments before the crash, a big rig, made a left hand turn in front of Mr. Brown’s Tesla.The driver of the semi-truck, said when the accident happened, he could hear a movie playing. In an erie turn of events, even after Mr. Brown had died in the collision, the truck driver saw the Telsa drive down a quarter of mile before stopping due to hitting a light pole. In support of the truck driver’s claim, police found a portable DVD player in the Tesla. The DVD proved that Mr. Brown was watching a Harry Potter movie instead of watching the road. What caused this horrific accident? Tesla was noted as saying that the Autopilot system failed to see the white truck against the bright Florida sky. Tesla released a lengthy statement on statement the crash, saying:  “Neither Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brake was not applied. The high ride height of the trailer combined with its positioning across the road and the extremely rare circumstances of the impact caused the Model S to pass under the trailer, with the bottom of the trailer impacting the windshield of the Model S.” For your Las Vegas Car Accident Lawyer, there is a deeper issue with current automated cars. The problem with “Driverless” cars at present, is that drivers who aren’t fully paying attention, don’t really have the reaction time to prevent an accident. You can’t ask someone to let the car do all the driving and then act surprised when the “driver” doesn’t have time to avoid an accident.The Federal government now wants to regulate autonomous cars and take that power away from the states. These new Federal guidelines have come from the Department of Transportation's National Highway Traffic Safety Administration (“Safety Administration”).  The Safety Administration has said that States should stick to registering the cars and dealing with questions of liability, when the driver is a computer. It remains to be seen how the States feel about this and what the ultimate result will be. The Safety Administration stated that it can use its current “recall” authority to regulate automated cars. It warned automakers that self-driving cars that still rely on a human driver to intervene in some circumstances must have a means for keeping the driver's attention. If they don't, that "may be defined as an unreasonable risk to safety and subject to recall," the department said.  This is an ever-changing topic and updates will be provided by your Las Vegas Accident Lawyer as developments unfold.Next time, we will talk about the liability of rental car companies after an accident. [...]

What are the Changes in Las Vegas Justice Court’s Jury Award Limits?

Fri, 14 Oct 2016 21:48:00 +0000

What is the best thing about the law? That it changes all the time. What is the worst thing about the law? That it changes all the time! If one thing can be said about the practice of law for your Las Vegas Personal Injury Lawyer, is that she is always being challenged to keep up with the changes in the law. Today’s blog deals with the exciting new developments for personal injury cases in Las Vegas Justice Court. In the past, Las Vegas Justice Court and it’s Small Claims counterpart, both had max awards limits of $10,000 per injured person. Starting on January 1, 2017, Las Vegas Justice Court will increase its jurisdictional limit from the present $10,000 to $15,000.  Small Claims Court will keep its trial award limits of $10,000. Your Las Vegas Personal Injury Attorney will tell you that the benefit of Small Claims Court is that your case will go to trial generally within a few months of filing your lawsuit and trials generally last less than an hour. This is a quick and efficient way to resolve a smaller personal injury claim. However, Small Claims Court does not allow for the award of any attorney’s fees. The great part of Las Vegas Justice Court, is that attorney’s fees can be awarded to the winning party. If your Las Vegas Personal Injury Attorney recommends that you should file your case in Justice Court, you will usually have a trial date within 6 months. Trials are also limited to one day. While it takes a little longer to go to trial, as compared to Small Claims Court, the damages limit is $15,000, as compared to the lower $10,000 in Small Claims Court. Justice Court also has the added bonus that the Court can award attorney’s fees and costs. If you case has a value of over $15,000, the other option to your Las Vegas Personal Injury Attorney is to file your lawsuit in District Court. Yet, in District Court, special hurdles exist to get to trial, if your case is valued at less than $50,000. In those instances, you have to go through a “non-binding” arbitration program before you ever get to trial. It usually takes about 6 to 9 months to get your arbitration hearing. Since this special program is “non-binding”, any party who doesn’t like the Arbitrator’s decision can ask for an actual trial. The additional wait to get a trial, may be up to 6-9 months. So, it could take up to two years to resolve smaller cases. This is why Justice Court is a great new option for smaller Las Vegas Injury Cases. Talk to your Las Vegas Personal Injury Lawyer about which court is best for your case. Next time, we will talk about new developments in driverless cars.[...]

What Happens When you Want to Serve a Foreign Company with a Lawsuit?

Wed, 21 Sep 2016 15:39:00 +0000

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. [...]

What are the Trial Rules on Expert Witnesses in Las Vegas Personal Injury Cases?

Tue, 13 Sep 2016 17:51:00 +0000

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. [...]

What are the Recent Law Changes on Jury Selection in Nevada?

Wed, 31 Aug 2016 17:32:00 +0000

The Nevada high court recently changed the way Las Vegas Personal Injury Lawyers conduct their trials in Nevada. In the past, each judge had different rules when it came time to picking a jury in personal injury trials. This meant different results, based upon which judge you had for your case. Considering there are over 20 different trial judges in Las Vegas, this was like spinning the roulette wheel of judges!In a recent case, the Nevada Supreme Court made two major announcements in personal injury trials. See Khoury v. Seastrand. 132 Nev. Ad. Op. 52 (2016). The first ruling by the high court, is that specific dollar amounts CAN be used during jury selection to uncover potential bias regarding verdict amounts. Las Vegas Personal Injury Lawyers were sometimes blocked in ferreting out biased jurors. If your Lawyer wants to strike a potential juror because they don’t believe in people making claims for injuries, they can now put out hypothetical numbers and see if jurors have a personal problem with making a large award to an injured person. It is important that your accident Lawyer will have to make sure to create a record to explain exactly why the potential juror is being dismissed.     The second major change in jury trials relates to medical liens. In most personal injury cases, doctors treat injured people on a lien. Our high court decided that LIENS can be admitted in trial to show bias. But, in a footnote, the court was careful to point out that when admitting evidence of liens to show bias: "[We] caution that this holding may not be used as a 'backdoor' by parties to question a treatment provider about whether and to what amount it would write-down the amount of the medical lien in the event that the plaintiff loses his or her lawsuit. Such evidence could be used by the jury to diminish the damage award and would thus invoke the collateral source rule."  Defense attorneys wanted the Nevada court to adopt a California law allowing evidence of medical insurance, write-down evidence and the sale of liens by providers, to try and show the "reasonable value" of the bills. This argument was rejected by the Nevada Supreme Court. Defense attorneys are also prohibited from asking a doctor if they will write off the lien if the injured party loses their case.  Defense attorneys are now limited to asking the doctor on the stand if getting paid for their medical services depends on the outcome of the trial. The defense try to argue that the doctor is biased and their testimony disregarded by the jury. Your experienced Las Vegas Personal Injury Lawyer will make sure that the jury hears testimony from the treating doctors that the patient’s injuries were caused by the accident at issue.  Next time, we will talk about expert witnesses in Las Vegas Personal Injury cases. [...]