Fourth St. Place v. Travelers Indem. Co., 127 Nev. Adv. Op. 86 (December 29, 2011)

Before Justices Douglas, Hardesty, and Parraguirre. Opinion by Justice Douglas.
In this appeal from an order granting summary judgment in an insurance coverage action, the Court interpreted coverage limitations and exclusions in an “all risks” policy. Appellant, the owner of a building in Las Vegas, had roof repairs done to the building. Before the repairs were completed, Las Vegas had an unexpected and substantial rainstorm that caused significant damage to the building. Respondent denied coverage because the policy limited coverage for damage caused by rain to circumstances where the roof first sustained damage by wind or hail and excluded damage caused by faulty workmanship. The Court defined “roof” as “sufficiently durable to meet its intended purpose: to cover and protect a building against weather-related risks that reasonably may be anticipated,” and held that tarps that were used as temporary protection of the roof only after the rain began did not fit within that definition. The Court further concluded that “faulty workmanship” was not ambiguous and included both faulty products and processes. Having rejected both arguments that the potential causes of damage were covered by the policy, the Court nonetheless considered and adopted the doctrine of efficient proximate cause, which allows for recovery under an insurance policy if a covered cause of loss is the predominant cause of the loss even if a non-covered cause contributed to the loss. Because none of the asserted causes of the damage were covered under the policy, the Court affirmed the district court’s order granting summary judgment to the insurance company. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

In re Fontainebleau Las Vegas Holdings, 127 Nev. Adv. Op. 85 (December 29, 2011)

Before the Court en banc (Justice Pickering recused). Opinion by Justice Hardesty.
In this decision, the Nevada Supreme Court addressed whether a party can supplement the factual record when a question is certified to the Nevada Supreme Court by a federal court. In the appeal, respondents filed a supplemental appendix to refute the facts the certifying court provided to the Court. The Court concluded that its role under a certification pursuant to NRAP 5, as the answering court, is simply to resolve the questions of law posed to it by the certifying court. In satisfying its obligation, the Court adopted the majority view that the answering court must accept the facts as provided by the certifying court and limit its analysis to applying the law to those facts. Therefore, while the Court may consider an appendix to get a better understanding of the underlying case, it will not examine supplemental materials for the purpose of contradicting the facts from the certifying court. Accordingly, the Court granted appellant’s motion to strike respondents’ supplemental appendix. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Munda v. Summerlin Life & Health Ins. Co., 127 Nev. Adv. Op. 83 (December 29, 2011)

Before the Court en banc (Justice Pickering recused). Opinion by Justice Douglas.
In contrast to the Court’s decision in Cervantes v. Health Plan of Nevada, 127 Nev. ___, ___ P.3d ___ (Adv. Op. No. 70, October 27, 2011), the Court in this appeal determined that ERISA did not preempt state law claims for negligence against a managed care organization (“MCO”) based on these factual circumstances. The question of preemption in this context depends upon the factual distinction between an MCO acting as an administrator of an ERISA plan and an MCO acting independently. Because this was an appeal of an order granting a motion to dismiss, the Court assumed the facts alleged in the complaint were true and held that the facts alleged indicated that the MCO was acting independently and therefore claims against it were not preempted by ERISA. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Sicor, Inc. v. Hutchison, 127 Nev. Adv. Op. 82 (December 15, 2011)

Before Justices Saitta, Douglas and Hardesty. Opinion by Justice Hardesty.
In a companion case to Sicor v. Sacks, the Court considered whether the district court properly denied a post-voir dire motion to change venue because of adverse pretrial publicity in the ongoing endoscopy cases in Las Vegas. The Court expanded the analysis it set forth in National Collegiate Ass’n v. Tarkanian, 113 Nev. 610, 939 P.2d 1049 (1997), regarding a pre-voir dire motion to change venue based on pre-trial publicity by adding four factors relevant to post-voir dire motions to the six-factor test established in Tarkanian. The ten factors for consideration in a post-voir dire motion to change venue based upon pre-trial publicity are: “(1) the nature and extent of pretrial publicity; (2) the size of the community; (3) the nature and gravity of the lawsuit; (4) the status of the plaintiff and defendant in the community; [ ] (5) the existence of political overtones in the case. . . . (6) the amount of time that separated the release of the publicity and the trial. . . . (7) the care used and the difficulty encountered in selecting a jury, (8) the familiarity of potential jurors with pretrial publicity, (9) the effect of the publicity on the jurors, and (10) the challenges exercised by the party seeking a change of venue.” In applying the ten-factor test, the Court stressed that it is not necessary that the empaneled jury be completely ignorant of the underlying case but that, instead, the jury must be capable of being impartial. The Court then specifically applied the ten factors to the endoscopy jury selection process and concluded that the empaneled jury in this case was sufficiently impartial to provide a reasonable likelihood of a fair trial, despite a fair amount of pretrial publicity and some knowledge of the case among many of the jurors. Accordingly, the Court affirmed the district court’s denial of Sicor’s motion for a change of venue. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Sicor, Inc. v. Sacks, 127 Nev. Adv. Op. 81 (December 15, 2011)

Before Justices Saitta, Gibbons and Hardesty. Opinion by Justice Hardesty.
In this appeal from a district court order deferring a final ruling on a change in venue motion based on adverse pretrial publicity until after jury selection began, the Court considered whether such deferral constituted a final, appealable decision pursuant to NRAP 3A(b)(6). The Court concluded that the deferral did not constitute a final, appealable decision and that the district court’s decision to wait to finally rule on the motion to change venue until after voir dire and attempting to empanel a jury complied with the weight of authority. The defendant retains its right to an immediate appeal pursuant to NRAP 3A(b)(6) after a final decision on the motion to change venue if the defendant believes a change of venue is still proper. Accordingly, the Court dismissed the appeal as premature. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Holt v. Regional Trustee Services Corp., 127 Nev. Adv. Op. 80 (December 15, 2011)

Before the Court en banc. Opinion by Justice Pickering.
In this appeal, the Court determined that a lender who has been denied a certificate of good faith in the residential foreclosure mediation process can restart the foreclosure process by filing a new notice of default and rescinding the previous notice. Appellants argued that an order denying a certificate of good faith permanently precluded a new action to foreclose. The Court noted that sanctions could be imposed to wipe out the lender’s security, without specifically deciding the issue. Since no such sanctions had been imposed in this case and the doctrines of issue and claim preclusion were not satisfied by the first proceedings, the Court affirmed the district court’s order allowing a second foreclosure mediation to proceed. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Reno Newspapers v. Gibbons, 127 Nev. Adv. Op. 79 (December 15, 2011)

Before the Court en banc. Opinion by Justice Saitta.
In this appeal, the Nevada Supreme Court considered two issues: (1) whether a state entity must, after the commencement of litigation, provide a log of records it withholds from a requesting party pursuant to the Nevada Public Records Act (NPRA) and (2) prior to the commencement of litigation, what information about non-disclosed records must the state entity provide to a requesting party pursuant to the NPRA. To resolve the first issue, the Court reviewed its prior jurisprudence regarding the framework for analyzing claims of confidentiality pursuant to the NPRA, concluding that there is (1) a presumption that government-generated records are open to review, (2) limits on disclosure must be based on a broad balancing of the interests involved unless there is a statutory provision on point, and (3) the state entity cannot meet its burden of showing that it should not disclose a record without a particularized showing or by expressing hypothetical concerns with disclosure. In light of this framework, the Court held that a requesting party is generally entitled to a log, similar to a Vaughn index as utilized for Freedom of Information Act requests under federal law, unless the state entity demonstrates that the requesting party has sufficient information to meaningfully contest the entity’s claim of confidentiality. The Court did not expressly state what must be in the log, but concluded that it should generally contain a factual description of each record withheld and a specific explanation for nondisclosure. As to the second issue, the Court held that the withholding state entity need not provide a log prior to the commencement of litigation because the NPRA requires only notice of nondisclosure and a citation to specific authority for withholding the record(s). General citations to caselaw do not satisfy the NPRA and informal internal e-mail policies are not sufficient grounds upon which to deny a records request. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Public Agency Compensation Trust (PACT) v. Blake, 127 Nev. Adv. Op. 77 (November 23, 2011)

Before Justices Saitta, Hardesty and Parraguirre. Opinion by Justice Hardesty.
In this appeal, the Nevada Supreme Court considered the proper method of calculating permanent partial disability (PPD) compensation for a subsequent work-related injury when the impairment rating for the subsequent injury is based upon a different edition of the applicable guide than were prior injuries. Nevada’s Division of Industrial Relations requires PPD awards to be based on a percentage of whole person impairment as determined by a rating physician, who makes the calculations using the current edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The employee, Dale Blake, injured his back during the course and scope of his employment in 2004, and had previously suffered four previous industrial accidents involving back injuries as recently as 1995. In the 1995 injury, Blake’s PPD benefits were determined by using the second edition of the AMA Guide, resulting in a determination of a 14-percent impairment. In 2003, the Legislature mandated that the fifth edition of the AMA Guides be used, and therefore for his 2004 injury, Blake’s benefits were determined by using the fifth edition of the AMA Guides resulting in a 40-percent whole person impairment, and then subtracting the previous 14-percent, and concluding that Blake’s benefits should be calculated based on a net 26-percent increase. Based on an objection by the carrier/employer, the doctor recalculated Blake’s benefits by estimating the percentage of impairment from the 1995 injury using the 2003 AMA Guide, rather than simply accepting the previous estimation based on the earlier Guide, resulting in a benefits calculation based on a net 17-percent increase. Blake challenged this decision, and ultimately the district court ruled on a petition for judicial review that the prior percentage of disability should be deducted from the current disability percentage regardless of which edition of the AMA Guide was used to calculate the prior disability determination. The Court disagreed with this approach, holding that the plain language of NRS 616C.490(9) requires that the calculations for prior and subsequent injuries be reconciled by using the current edition of the AMA Guides to determine the percentages of the current and previous disabilities, and then subtracting the percentage from the previous impairment from the percentage from the current impairment to calculate the award for the current injury. Applying this formula to this case, the Court ruled that the second calculation resulting in a net 17-percent increase was the correct one. The Court further held that to the extent NAC 616C.490 allows for computation of the PPD compensation without reconciliation of the different editions of the AMA Guides, it conflicts with NRS 616C.490 and is invalid. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP).

Estate of Smith v. Mahoney’s Silver Nugget, 127 Nev. Adv. Op. 76 (November 23, 2011)

Before Justices Saitta, Hardesty, and Parraguirre. Opinion by Justice Parraguirre.
In this appeal from the grant of summary judgment in a wrongful death case, the Court reviewed the process for determining the legal duty of an innkeeper when a person is injured or killed by a third party on the innkeeper’s premises under NRS 651.015. The deceased, Smith, punched another patron of the Silver Nugget and a third patron fatally shot Smith in retaliation. Resolving an apparent conflict between NRS 651.015 and the Court’s decision in Doud v. Las Vegas Hilton Corp., 109 Nev. 1096 (1993), the Court concluded that NRS 651.015 requires a district court to determine duty as a matter of law by considering the foreseeability of the wrongful act and a jury must determine proximate cause by considering the foreseeability of the injury or consequences of the wrongful act. The Court then addressed the two methods of determining the foreseeability of a wrongful act set forth in NRS 651.015: (1) failure to exercise due care (2) prior similar acts. The “failure to exercise due care” approach allows for consideration of the totality of the circumstances as applied in Doud; it allows a Court to impose a duty despite the absence of prior similar wrongful acts if the “innkeeper’s outright failure to take reasonable precautions to protect its patrons” increased the likelihood of the wrongful act. The Court also attempted to clarify the extent of similarity required to establish a duty based on prior similar acts. Noting that the Legislature intended courts to have some discretion in considering the similarity of wrongful acts, the Court stated that whether acts are similar is, at least in part, determined by looking at whether the acts implicated similar security concerns. Because there had been no prior security incidents involving serious injury or concealed handguns at the Silver Nugget, the Court affirmed the district court’s conclusion that the shooting here was not foreseeable in a manner that created a duty on the part of the Silver Nugget. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson).

Friedman v. Dist. Ct., 127 Nev. Adv. Op. 75 (November 23, 2011)

Before the Court en banc. Opinion by Justice Pickering.
In this petition for a writ of mandamus and/or prohibition, the Nevada Supreme Court considered whether, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a Nevada family court could assert jurisdiction over a child custody dispute- pursuant to an agreement between the parties-when all parties have relocated to another state. First, the Court determined that, under the UCCJEA, exclusive, continuing jurisdiction (UCCJEA Jurisdiction) is extinguished when “the child, the child’s parents and any person acting as a parent do not presently reside in the State.” Next, the Court considered whether the parents’ agreement to maintain jurisdiction in Nevada, despite their relocation to California, would trump the UCCJEA. The Court concluded that the UCCJEA is the exclusive jurisdictional basis for child custody determinations and no agreement by the parties may override the jurisdiction conferred by the UCCJEA. However, the Court noted that such agreements may be reviewed by a court with UCCJEA jurisdiction and that court may then decline jurisdiction, deferring it to a more convenient/appropriate forum. Lastly, the Court rejected the argument that the parties were judicially or equitably estopped from contesting Nevada’s jurisdiction because, as the Court emphasized, under the UCCJEA, subject matter jurisdiction may not be conferred by a court with no authority to act. Any estoppel arguments must only be asserted to the court with UCCJEA jurisdiction. In a dissent joined by Justice Cherry, Justice Gibbons maintained that the issuance of such extraordinary writs is only permissible when there is not “a plain, speedy, and adequate remedy at law.” Justice Gibbons contended that because the California court has not agreed to jurisdiction and an agreement conferring jurisdiction to Nevada exists, extraordinary relief is not warranted. Justice Cherry wrote separately to add that the legislature should reevaluate this statute to ensure that parties can stipulate to jurisdiction in the future. Petition granted. (Amanda M. Hogeg, Associate in the Las Vegas office of McDonald Carano Wilson).

Klasch v. Walgreen Co., 127 Nev. Adv. Op. 74 (November 23, 2011)

Before the Court en banc. Opinion by Justice Parraguirre.
The Nevada Supreme Court, for the first time, adopted the learned-intermediary doctrine in the context of a pharmacist/customer relationship. The doctrine holds that a pharmacist has no duty to warn of a prescribed medication’s general risks. The doctrine originally held a drug manufacturer immune from liability to a patient as long as the manufacturer provided the relevant safety information to the patient’s doctor. In a pharmacist/customer relationship, the justification is that the doctor is in a better position to warn the customer of a medication’s general risks. The doctrine prevents the pharmacist from second-guessing a doctor’s judgment in an effort to avoid his or her own liability. However, the pharmacist is not shielded from liability when he or she has knowledge of a customer-specific risk. When the pharmacist has knowledge of such a risk, he or she has a duty to use reasonable care in warning the customer or notifying the prescribing doctor of the risk. In this case, a customer died after being prescribed a sulfa-based medication, despite the pharmacist’s knowledge of the customer’s sulfa allergy. The Court ruled that the sulfa allergy was not the generalized risk for which the learned-intermediary doctrine shields a pharmacist from liability. The pharmacist had knowledge of the customer-specific risk, and factual issues existed regarding whether the pharmacist breached her duty to warn the customer or notify the customer’s doctor. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson).

Chateau Vegas Wine, Inc. v. Southern Wine and Spirits of America, Inc., 127 Nev. Adv. Op. 73 (November 23, 2011)

Before the Court en banc (Justice Parraguirre recused). Opinion by Justice Saitta.
In this appeal from a business court order granting a permanent injunction, the Nevada Supreme Court affirmed the district court’s order enjoining Chateau Vegas and Transat Trade (together “Chateau Vegas”) from importing and selling certain Bordeaux wines and French champagnes in Nevada. Southern Wine entered into certain agreements that established it as the exclusive importer of certain Bordeaux wines and French champagnes in NV. Southern Wine filed the agreements with the Nevada Department of Taxation. In 2002, Southern Wine initiated an action against Chateau Vegas after it learned Chateau Vegas was unlawfully importing and selling French champagnes, and later Bordeaux wines, in Nevada in violation of Southern Wine’s exclusive trade rights pursuant to NRS Chapter 369. Chateau Vegas did not have agreements with the producers of wines and champagne, and the producers’ designated agents, for the importation and sale in Nevada. On appeal, Chateau Vegas argued that Southern Wine failed to strictly comply with the requirements of NRS 369.386 because certain documents were not filed with the Department of Taxation. Chateau Vegas argued that the district court improperly granted injunctive relief because Southern Wine’s exclusive trade rights never vested when it failed to comply with the statute. The Court reviewed the requirements of NRS 369.386 and 369.486 and reiterated that when a statute is clear and unambiguous, the Court gives effect to the plain and ordinary meaning of the words and the Court does not resort to the rules of construction. In finding that Southern Wine, and the related parties to the agreements, complied with the statute’s requirements, the Court noted that NRS 369.386(3) requires a liquor producer acting through an agent to file a “written designation,” and the agent a “written acceptance” of that designation. The Court stated that the statute does not specify a particular filing procedure and noted that, in broad terms, the “written designation” and “written acceptance” must be filed. The Court determined that Southern Wine’s filing of the agreements with the Department of Taxation was sufficient, and declined to read additional requirements into the statutory language. The Court further ruled that injunctive relief was the proper remedy because certain acts by Chateau Vegas (i.e. obtaining the products from other sources and failing to ensure the quality of the products) undermined Southern Wine’s reputation as the primary importer of the liquor in question. The Court affirmed the district court’s finding that Southern Wine established irreparable harm necessary for injunctive relief. Affirmed. (Kristen Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).

Choy v. Ameristar Casinos, Inc., 127 Nev. Adv. Op. 78 (Nov. 23, 2011)

Before Justices Douglas, Hardesty and Parraguire. Opinion by Justice Douglas.
In this appeal, the Nevada Supreme Court considered the procedure required by NRCP 56(f) for the party opposing a motion for summary judgment to request the denial or continuance of the motion in order to obtain additional affidavits or conduct further discovery. The Court confirmed the plain language of the Rule, finding that Rule 56(f) requires that the party opposing summary judgment provide an affidavit stating the reasons why denial or continuance of the motion for summary judgment is necessary to allow the opposing party to obtain further affidavits or discovery. The Court further found that a mere request for a continuance contained within an opposition to a motion for summary judgment was not sufficient to meet the unequivocal affidavit requirement. The Court affirmed the lower court’s grant of respondent’s motion for summary judgment. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson).

Canarelli v. Dist. Ct., 127 Nev. Adv. Op. 72 (November 10, 2011)

Before the Court en banc. Opinion by Hardesty.
In this petition for a writ of mandamus, the Nevada Supreme Court considered whether a district court may appoint an unwilling director trustee of a dissolved corporation to defend post-dissolution claims against the corporation that arose after the conclusion of the winding-up process. The Court first determined that the continued legal existence of a corporation for the purpose of adjudicating a post-dissolution claim against it is separate from the obligations of its directors trustees to wind up the corporate affairs. With that premise in mind, the Court examined Nevada’s statutory corporate dissolution scheme and concluded that, while claimants may bring post-dissolution claims, directors trustees have no duty to defend against those claims once the directors trustees have completed winding up the affairs of the corporation. In a footnote, the Court recognized the difficulty presented by the apparent conflict between this decision and Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 584, 97 P.3d 1132, 1138 (2004), which allowed post-dissolution claims to be brought against corporations if the claim was brought within the relevant statute of limitations or statute of repose. The Court stated that the conflict must be resolved by the legislature and was not a proper subject for determination by the courts. Petition granted. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Pacificare of Nevada v. Rogers, 127 Nev. Adv. Op. 71 (October 27, 2011)

Before the Court en banc. Opinion by Parraguirre.
In this appeal from denial of a motion to compel arbitration, the Nevada Supreme Court addressed two issues concerning arbitration clauses. Respondent Rogers was a Medicare recipient who received benefits through appellant Pacificare, with whom she executed contracts in 2007 and 2008. The 2007 contract contained an arbitration clause but the 2008 contract did not. The Court adopted the law commonly applied in other jurisdictions that an arbitration provision survives the expiration of a contract unless the clause is expressly rescinded. Furthermore, adopting the reasoning of the Ninth Circuit Court of Appeals in Do Sung Uhm v. Humana, Inc., 620 F.3d 1134 (9th Cir. 2010), the Court determined that the Medicare Act expressly preempts Nevada’s common law doctrine of unconscionability. As such, the Court concluded that the district court improperly denied the motion to compel arbitration. Reversed and remanded. (Kerry Doyle, Associate in the Reno office of McDonald Carano Wilson)

Cervantes v. Health Plan of Nevada, 127 Nev. Adv. Op. 70 (October 27, 2011)

Before the Court en banc. Opinion by Douglas.
In this appeal from a district court order granting summary judgment, the Nevada Supreme Court considered whether ERISA section 514 preempts a state law claim of negligence against a managed care organization (MCO) that an ERISA plan contracted with to develop the ERISA plan’s health care provider network. Appellant Cervantes alleged that she contracted hepatitis C after treatment at the Endoscopy Center of Southern Nevada (ECSN) due to the failure of the MCO hired by her union to insure the quality of care provided by ECSN as required by NRS 695G.050. In upholding the district court’s summary judgment finding that Cervantes’s claims were preempted, the Nevada Supreme Court followed the reasoning of several United States Supreme Court and Ninth Circuit opinions limiting section 514(a)’s preemption of state laws that are “related to” any employee benefit plan, by requiring that a state law be “connected with” or “refer to” an ERISA plan. Concluding that only the “connection with” test applied in this case, the Court determined that the MCO’s acts were connected with the ERISA plan because the MCO’s negotiation of contracts with health care providers selected by the ERISA plan involved the administration of an ERISA plan. Therefore, Cervantes’s claims against the MCO pursuant to NRS 695G are preempted by ERISA section 514(a). Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson)

State, Dep’t of Taxation v. Masco Builder, 127 Nev. Adv. Op. 67 (October 20, 2011)

Before Saitta, Hardesty and Parraguirre. Per curiam.
In this case involving a taxpayer’s request for a refund, the Court confronted two issues: (1) whether the Nevada Tax Commission (Commission) had improperly substituted its judgment for that of an administrative law judge (ALJ) in reversing the ALJ’s determination that the taxpayer was due a refund; and (2) whether the statute of limitations governing the time within which a taxpayer must file a formal refund request is tolled where the Department of Taxation (Department) has caused the taxpayer to believe that a formal filing was unnecessary. First, the Court noted that the Commission was required to affirm the ALJ’s decision if it was based on substantial evidence. Because the taxpayer, Masco Builder, had presented numerous contracts with customers evidencing its tax status, the ALJ’s decision was based on substantial evidence, which the Commission ignored in reversing the ALJ. Second, the Court applied the doctrine of equitable tolling to hold that Masco could obtain a refund for the entire 2003-2006 period because the Department’s auditor had given Masco false assurances that its refund would not be time-barred, Masco had acted diligently to preserve its rights, Masco had complied with all technical procedures necessary to request a refund, there was no danger of prejudice to the Department because it had already reviewed and rejected Masco’s request for a refund, and justice required that the statute of limitations be tolled because the Department had “actively participated in and contributed to Masco’s delay in formally filing its refund claims.” Affirmed. (Rory Kay, Associate in the Las Vegas office of McDonald Carano Wilson)

Walters v. Eighth Judicial Dist. Ct., 127 Nev. Adv. Op. 66 (October 13, 2011)

Before the court en banc (with a voluntary recusal by Pickering). Opinion by Douglas.
In this petition for a writ of mandamus or prohibition, the petitioner challenged the district court’s orders denying petitioner’s motion for summary judgment and granting, in part, the real party in interest’s motion for summary judgment. The issue presented is whether a counterclaim, cross-claim, and written motion setting the grounds for the application and the relief sought satisfies the requirements of NRS Chapter 40 for seeking a deficiency judgment based upon a breach of guaranty. Petitioner William Walters (“Walters”) argued that real party in interest Community Bank of Nevada (“CBN”) failed to apply to the district court for deficiency judgment within the statutory six-month period. CBN argued that it clearly asserted a claim that comported with NRS 40.459 by calculating the amount Walters owed as a result of the deficiency. This was done via CBN’s counterclaim, cross-claim, and summary judgment motion which asserted a deficiency against Walters. The Nevada Supreme Court affirmed the district court’s decision by stating that NRS 40.455(1) requires a judgment creditor to apply for a deficiency judgment within six months after the foreclosure sale but does not state that it must be specifically labeled as a deficiency judgment application. While NRS 40.455(1) does not state how an application should be made, NRCP 7(b)(1) states that “[a]n application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of a writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.” The Nevada Supreme Court found that CBN’s summary judgment motion met the requirements of NRCP 7(b)(1) because it was: (1) made in writing, (2) set forth in particularity the grounds for the application, and (3) set forth the relief sought. Thus, an application was made pursuant to NRS 40.455(1) within the six month period. Further, the Nevada Supreme Court found that CBN was not seeking double recovery because the $5 million credit bid was factored into the calculation of the amount owed by Walters under his guaranty and because the district court planned on determining the fair market value of the subject real property at a deficiency hearing. Petition for writ of mandamus or prohibition denied. (By Lisa Wiltshire, Associate in the Las Vegas office of McDonald Carano Wilson)

Congratulations to Jeff Silvestri, Andrew Gordon, and Lisa Wiltshire for their win for the FDIC!

G.C. Wallace, Inc. v. Eighth Judicial Dist. Court ex rel. County of Clark, 127 Nev. Adv. Op. 64 (October 6, 2011)

Before Saitta, Hardesty and Parraguirre. Opinion by Saitta.
In this petition for a writ of mandamus from the denial of a motion for summary judgment, the Nevada Supreme Court clarified the procedure for claiming damages after obtaining a summary eviction. After obtaining a summary eviction in justice court pursuant to NRS 40.253, a landlord brought a damages claim against the tenant in district court. The tenant moved for summary judgment arguing that claim preclusion prevented the second action for damages. Reaffirming the test for claim preclusion announced in Five Star Capital Corp. v. Ruby, 124 Nev. 1048 (2008), the Court determined that claim preclusion would usually apply because the parties were identical, the justice court’s judgment on summary eviction was final and valid, and the claim for damages, which arose from the same breach as the claim for eviction, could have been brought in justice court up to the jurisdictional limit. Interpreting NRS 40.253 as it existed before recent amendments, however, the Court determined landlords must be allowed to avail themselves of the swift and straightforward summary eviction procedure and then seek damages in a later proceeding because to require damages claims to be brought at the same time as claims for eviction would needlessly complicate the summary proceedings and defeat their entire purpose. As such, the Court concluded that an exception to the doctrine of claim preclusion exists for summary eviction proceedings under NRS 40.253, allowing landlords seeking summary eviction and damages to bring the claim in a single action or separate actions at their election. Petition denied. (By Amanda Hogeg, Associate in the Las Vegas office of McDonald Carano Wilson)

Merits Incentives, LLC v. Eighth Judicial Dist. Ct., 127 Nev. Adv. Op. 63 (October 6, 2011)

Before Saitta, Hardesty and Parraguirre. Opinion by Hardesty.
In the petition for a writ of mandamus, the petitioners challenged the district court’s order denying a motion to dismiss or, alternatively, to disqualify counsel and to prohibit the use of certain information. After initiation of the lawsuit by petitioners, real party in interest Bumble and Bumble Products, LLC (“Bumble”) received an anonymous package from Lebanon at its New York headquarters. The package contained a disk and a note stating that the package should be forwarded to Bumble’s counsel in Las Vegas. Subsequently, Bumble’s counsel disclosed the disk and contents therein in NRCP 16.1 supplemental disclosures. Petitioners sought to disqualify Bumble’s counsel for use of this disk. The Nevada Supreme Court affirmed the district court’s decision that Bumble’s counsel acted reasonably and within the Nevada Rules of Professional Conduct and adopted the following: (1) a notification requirement that an attorney who receives documents anonymously or from a third party unrelated to the litigation must promptly notify opposing counsel that the documents were not received in the ordinary course of discovery and describe, with particularity, the facts and circumstances that explain how the documents or evidence came into counsel’s or his or her client’s possession; and (2) a nonexhaustive list of factors to aid trial courts in determining whether disqualification of counsel is appropriate, as stated in In re Meador, 968 S.W. 2d 346 (Tex. 1998), of: (a) whether the attorney knew or should have known that the material was privileged; (b) the promptness with which the attorney notifies the opposing side that he or she has received its privileged information; (c) the extent to which the attorney reviews and digests the privileged information; (d) the significance of the privileged information, i.e., the extent to which its disclosure may prejudice the movant’s claim or defense, and the extent to which return of the documents will mitigate the prejudice; (e) the extent to which movant may be at fault for the unauthorized disclosure; and (f) the extent to which the nonmovant will suffer prejudice from the disqualification of his or her attorney. Petition denied. (By Lisa Wiltshire, Associate in the Las Vegas office of McDonald Carano Wilson)

City of North Las Vegas v. Warburton, 127 Nev. Adv. Op. 62 (October 6, 2011)

Before Saitta, Hardesty and Parraguirre. Opinion by Hardesty.
In this appeal affirming a district court’s order granting an employee’s petition for judicial review, the Nevada Supreme Court considered the proper method of calculating workers’ compensation benefits for an employee who was promoted but was injured before receiving the wage increase associated with the promotion. The hearing officer initially determined the employee’s wages should be calculated using the wage with the promotion; however, an appeals officer reversed, concluding that, based on administrative regulations (NAC 616.435), the wage had to be based on her earnings at the time of the injury. The employee petitioned for judicial review by the district court; the district court reversed the appeal officer’s ruling and the city/employer appealed. The Court upheld the district court’s decision that the employee was entitled to compensation based on her position as of the date of the injury, despite the fact that her promotion was still being processed on the date of the underlying injury. The Court reviewed NAC 616C.435 and NAC 616C.444 in making its determination. Typically, an employee’s workers’ compensation benefits are calculated by averaging a 12-week history of past earnings. See NAC 616C.435(1). If a 12-week history is not available, the average monthly wage can be calculated by using a 4-week history, pursuant to NAC 616C.435(4). However, if the methods set forth in NAC 616C.435 cannot be applied reasonably and fairly, the average monthly wage must be calculated in a manner that reasonably represents the average monthly wage. See NAC 616C.435(7)(a). The Court determined that the calculations set forth in NAC 616C.435(1) and (4) did not “reasonably and fairly” determine the amount of the employee’s workers’ compensation benefits, instead finding that NAC 616C.444(1) set forth a more specific method for calculating a worker’s wage in the circumstances presented. NAC 616C.444 requires that the average monthly wage must be calculated such that the primary job at the time of the accident must be used in the calculation. The Court noted that a specific statute or administrative regulation controls over a general statute on the same issue and the provisions of NAC 616C.435(7) and NAC 616C.444 were plain and unambiguous. The Court ultimately determined that there was ample evidence in the record to demonstrate that the employee’s primary job was that of the promoted position and upheld the district court’s order, and affirmed the hearing officer’s decision. (By Kristen Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson)

Emerson v. Dist. Ct., 127 Nev. Adv. Op. 61 (October 6, 2011)

Before Saitta, Hardesty and Parraguirre. Opinion by Hardesty.
In this continuation of the well-known attorney misconduct case Lioce v. Cohen, 124 Nev. 1 (2008), the Court addressed whether a district court retains jurisdiction after voluntary dismissal of an action to order sanctions for attorney misconduct that occurred before the dismissal. In Lioce, the Nevada Supreme Court determined that defense attorney Phillip Emerson nullified the jury by making impermissible comments reflecting his personal opinion of the case and remanded with instructions for the district court to determine the necessity of a new trial. The district court granted the new trial as to a portion of the case and plaintiff’s counsel filed a motion for sanctions based on Emerson’s misconduct in the first trial. The district court announced its intent to impose sanctions, but did not immediately file a written order. The parties stipulated to dismiss the case, and after the order dismissing was entered, the district court entered its order granting sanctions. Following federal precedent regarding FRCP 11 sanctions, the Supreme Court concluded that a court retains jurisdiction over the collateral matter of imposing sanctions after parties stipulate to dismiss an action with prejudice. The Court further concluded that the district court had the inherent authority to sanction attorney misconduct and the sanctions did not need to be authorized by NRS 7.085. Finally, addressing authority regarding the proportionality of the sanctions award, the Court emphasized the district court’s discretion in determining an appropriate amount of sanctions and concluded that even though only nominal damages had been awarded in other instances of attorney trial misconduct, in this case the award of over $19,000 in attorneys’ fees and costs accrued in preparing for the first trial were not unreasonable since Emerson’s misconduct caused the court to order a new trial. Petition denied. (By Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)

Francis v. Wynn Las Vegas, LLC, d/b/a Wynn Las Vegas, 127 Nev. Adv. Op. 60 (October 6, 2011)

Before Saitta, Hardesty and Parraguirre. Opinion by Saitta.
In this appeal arising from a civil litigant’s invocation of the Fifth Amendment, the Court held that in response to a civil litigant’s request for accommodation of his or her privilege, the district court should balance the interests of the invoking party and the opposing party’s right to fair treatment. The Court set forth the following considerations a district court must consider in making this determination: (1) the nature of the invocation, which includes consideration of the timeliness of the invocation, whether the party attempts to withdraw the invocation and the manner and timing of the attempt to withdraw; (2) the nature of the civil proceeding; and (3) the extent of prejudice that the opposing party will incur if remedial action is not taken. With these considerations in mind, the Court found that if the circumstances so required, there was a wide range of remedial measures that could be taken when balancing the interests of the invoking party and the opposing party’s right to fair treatment. The Court also noted that an invocation “is not a substitute for relevant evidence” and therefore, the invoking party is not “freed from adducing proof in support of a burden which would otherwise have been his.” In other words, a party who asserts the privilege against self-incrimination must bear the consequences of lack of evidence. The Court confirmed, therefore, that a “claim of privilege will not prevent an adverse finding or even summary judgment if the litigant does not present sufficient evidence to satisfy the usual evidentiary burdens in the litigation.” Based on all of these considerations, the Court affirmed the district court’s decision finding that the district court did not abuse its discretion in refusing to permit appellant to withdraw his invocation or in denying appellant’s request to reopen discovery. The Court further concluded that the district court did not abuse its discretion in denying appellant’s NRCP 56(f) motion, nor did it err in granting respondent summary judgment. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson.)

Daane v. Dist. Ct., 127 Nev. Adv. Op. 59 (Sept. 29, 2011)

Before The Court En Banc. Opinion by Saitta.
Daane, a homeowner against whose property real-party-in-interest CitiMortgage is attempting to foreclose, sought a writ of prohibition preventing a second foreclosure mediation proceeding from beginning because CitiMortgage had been sanctioned for participating in the previous foreclosure mediation in bad faith. The Court denied the writ, holding that Daane had an adequate remedy at law because he could file a petition for judicial review of the mediator’s decision. Implicitly, the Court is suggesting that a lender who has been denied a letter of certification that would allow a foreclosure to proceed, can simply file a new notice of default and begin the mediation process again. Petition denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Weddell v. Stewart, 127 Nev. Adv. Op. 58 (Sept. 29, 2011)

Before the Court en banc. Per curiam opinion.
The Court denied two motions for reconsideration in an opinion to emphasize the importance of complying with the Court’s procedural rules. In this case, appellant filed three separate notices of appeal, one from the merits of the underlying action, one from an order granting attorneys’ fees, and one from the order denying a motion to set aside the judgment. Appellants paid the filing fee for the notice of appeal filed on the merits of the case, but failed to pay a filing fee for the other two notices of appeal despite repeated warnings issued in Supreme Court orders. As such, the Court dismissed the two appeals in which fees had not been paid. Emphasizing that the Court has neither time nor money to police the payment of fees, the Court warns that it will take no action on any appeal until appropriate fees have been paid and, if the matter is docketed without payment of fees, the Court Clerk will issue a single notice demanding payment. After that notice, if the fees are not timely paid, the Court will dismiss the appeal. Motions denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)

City of North Las Vegas v. State, EMRB, 127 Nev. Adv. Op. 57 (Sept. 29, 2011)

Before the Court en banc. Opinion by Cherry.
In this appeal from a petition for judicial review of a decision of the Employee-Management Relations Board (the “Board”), the Court held that the doctrine of equitable tolling applies to NRS 288.110(4)’s six month limitations period in which an employee must make a complaint to the Board. The Court adopted the federal approach to treating the similar federal rule, specifically adopting the “unequivocal notice” rule – which states that the six month limitations period begins to run when the employee receives “unequivocal notice of a final adverse decision” – and applying the doctrine of equitable tolling to the period as it would to any statute of limitations period. Because the employee in this case diligently pursued his claims after discovering his employer’s allegedly discriminatory treatment of him, the Board properly tolled the limitations period and allowed the claims to go forward. In looking at the merits of the Board’s decision regarding Appellant’s claim of gender discrimination, the Court specifically adopted the Second and Seventh Circuits’ test for determining whether two employees are similarly situated: a court should compare several factors including “(1) whether the employees were subject to the same performance evaluation standards; (2) whether the employees engaged in comparable conduct; (3) whether the employees dealt with the same supervisor; (4) whether the employees were subject to the same disciplinary standards; and (5) whether the employees had comparable experience, education, and qualifications, if the employer took these factors into account in making its decision.” The Court further ruled that the determination of whether employees are similarly situated is a factual finding entitled to deference on appellate review. Petition for judicial review denied. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)

Otak Nevada, LLC v. Dist. Ct., 127 Nev. Adv. Op. 53 (Sept. 8, 2011)

Before Saitta, Hardesty and Parraguirre.  Opinion by Hardesty.

In this writ proceeding regarding personal injury and death caused by non-residential construction design malpractice, the Court addressed whether a complaint alleging non-residential construction design malpractice is void ab initio unless the required attorney affidavit and expert report supporting the claims are served concurrently.  The Court construed NRS 11.258, which mandates the attorney affidavit and expert opinion, in same fashion as the similar statute requiring such supporting documents for claims of medical malpractice.  Because the statute states a clear requirement for the supporting documentation and mandates that a district court dismiss a complaint for failure to comply, a complaint without the supporting affidavit and expert report is void ab initio and the district court is without authority to grant leave to amend.  Furthermore, each party must file their own affidavit and expert report and may not rely on those provided by another party.  The Court ordered the district court to set aside its orders allowing amendment and grant the motion to dismiss.  Petition granted.  (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)

City of Oakland v. Desert Outdoor Adver., 127 Nev. Adv. Op. 46 (Aug. 4, 2011)

Before the Court en banc.  Opinion by Cherry.

This is an appeal related to the enforcement of a California judgment in Nevada based on the Uniform Enforcement of Foreign Judgments Act (“UEFJA”) codified in NRS 17.330-400.  The Court found that penal judgments are exempted from the requirements of the UEFJA and are, therefore, not entitled to full faith and credit under Nevada’s UEFJA.  The determination of whether a judgment is considered penal rests on whether the statute provides civil penalties for an offense against the public or whether the statute creates a right of action to compensate a private person or entity. 

Oakland obtained a judgment against Desert Outdoor for violating a municipal code prohibiting the erection of sign advertising a business not located on the property on which the sign was erected.  The judgment was obtained under the California Business and Professions Code section 5485, which provided penalties for advertising displays posted in violation of local ordinances.  Thereafter, Oakland filed its judgment in the Second Judicial District Court.  The Nevada UEFJA states that a foreign judgment which is entitled to full faith and credit in Nevada is treated as a domestic judgment.  Citing to Huntington v. Attrill, 146 U.S. 657 (1892), the Court reiterated that the courts of one state cannot execute the penal laws of another.  Oakland unsuccessfully argued that Huntington was superseded by the UEFJA.  The Court found that Oakland’s penal judgment against Desert Outdoor fell outside the scope of the UEFJA because it was not entitled to full faith and credit in Nevada.  The Court determined that the California legislature’s intent in creating the applicable penalties was to address public wrongs, not private harms.  Oakland was not a private entity enforcing a civil right.  (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson)

Yellow Cab of Reno, Inc. v. Second Judicial Dist. Ct., 127 Nev. Adv. Op. 52 (Aug. 4, 2011)

Before Douglas, Hardesty and Pickering. Opinion by Hardesty.
After originally denying a petition for writ of mandamus, the Court granted a petition for rehearing to consider the issue of whether a statutorily-recognized independent contractor relationship between a taxicab business and a cab driver (NRS 706.473) prevents liability for the taxicab business sued under a respondeat superior theory of liability. The district court, Hon. Janet Berry, concluded that the nature of the relationship between the taxicab company and the driver was a question of fact for the jury without addressing NRS 706.473, and summarily denied summary judgment. The Court reaffirmed the general rule that it will not consider a writ petition from the denial of summary judgment, stating that it would deny the writ on that basis, but addressed the merits of the petition because it presented an important issue of law. The Court held that while the determination as to whether an individual is an employee or an independent contractor for purposes of respondeat superior liability generally turns on the degree of control the employer exercises over the individual and that this is generally a question for the trier of fact, NRS 706.473 sets forth various administrative requirements for creating an independent contractor relationship in the taxicab company/driver context that have little to do with employer control. The Court concluded that the district court should have considered whether the requirements of the statute had been met, and whether an independent contractor relationship under NRS 706.473 would allow the taxicab company to avoid liability under a respondeat liability theory. Because the district court had failed to consider these issues and instead summarily denied summary judgment, the Court declined to consider the issue in the first instance through the present writ petition. The Court denied the petition but invited the district court to reconsider the propriety of summary judgment based on NRS 706.473. Writ denied. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson)

Gallegos v. Malco Enterprises of Nevada, 127 Nev. Adv. Op. 51 (August 4, 2011).

Before Saitta, Hardesty and Parraguirre. Opinion by Parraguirre.
In this appeal from a summary judgment decision in an insurance action, the Nevada Supreme Court clarifies that rights of action held by a judgment debtor are subject to execution toward satisfaction of a judgment under NRS 21.080, and may be judicially assigned pursuant to NRS 21.320. In making this determination, the Court first held that so long as a right of action is “property . . . not exempt from execution,” it may be judicially assigned in satisfaction of a judgment. See NRS 21.320. The Court then turned to NRS 21.080(1) to determine whether a right of action is “property . . . exempt from execution.” NRS 21.080(1) provides that “[a]ll goods, chattels, money and other property, real and personal, of the judgment debtor, or any interest therein of the judgment debtor not exempt by law, and all property and rights of property seized and held under attachment in the action are liable to execution.” The Court also considered NRS 10.045, which applies to the entire statutory title, including NRS 21.080, and defines personal property as including “money, goods, chattels, things in action and evidences of debt.” Accordingly, based upon the plain language of these statutes, the Court found that rights of action held by a judgment debtor are personal property subject to execution in satisfaction of a judgment. Reversed and remanded for further proceedings. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson)

Rennels v. Rennels, 127 Nev. Adv. Op. 49 (August 4, 2011)

Before Hardesty, Saitta and Parraguirre. Opinion by Hardesty.
In this family law case, the Court considered (1) whether a stipulated visitation order between a parent and a grandmother was a final decree entitled to res judicata protections; and (2) whether the parental presumption – i.e. fit parents act in the best interests of their child – continues to apply when a parent seeks to modify or terminate a nonparent’s judicially approved visitation rights of a minor child. The Court held that the stipulated visitation order between the parent and grandmother was a final order because it intended to resolve the entire dispute, thus it was a final decree that precluded relitigation of the nonparent’s right to visitation based on the same set of facts already considered. Next, the Court held that where a parent seeks to modify or terminate the judicially approved visitation rights of a nonparent, the parental presumption no longer controls. The Court adopted the two-prong test previously enunciated in Ellis v. Carucci, 123 Nev. 145 (2007), holding that modification or termination of a nonparent’s judicially approved visitation rights is only warranted upon a showing of substantial change in circumstances that affects the child’s welfare such that it is in the child’s bests interests to modify an existing visitation arrangement. Once a nonparent has effectively rebutted the parental presumption, a child’s need for stability becomes an important factor. Although the Court declined to articulate what circumstances may evidence the substantial change required under the first prong, the Court noted that hostility or animosity between the parent and nonparent, by itself, is insufficient. Under the second prong (best interests of the child) a court should evaluate the factors in NRS 125.480(4) as well as any other relevant considerations. Reversed and remanded for further proceedings. (Kristen Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson)

Ben Roethlisberger v. Andrea NcNulty, 127 Nev. Adv. Op. 48 (August 4, 2011)

Before the court en banc. Opinion by Gibbons.
In this appeal from an order denying a change of venue in a tort action, the Court addressed whether appellant, a non-Nevada resident, had standing to challenge venue based upon a codefendant’s place of residence. Appellant was one of eight defendants, some of whom were Nevada residents, and the only defendant to appeal the district court order denying a motion for change of venue. Appellant argued that because neither plaintiff nor any defendant resides in Washoe County, venue is improper there under NRS 13.040. NRS 13.040 provides that an action against a Nevada resident shall be tried in the county in which any defendant resides, or, if there are no Nevada residents, then the action may be maintained in any Nevada county. The Court held that because venue in Washoe County was not improper as to appellant, he lacked standing to object venue pursuant to NRS 13.040. Affirmed. (Matthew A. Gray, Associate in the Reno office of McDonald Carano Wilson)

LVMPD v. Coregis Insurance Co., 127 Nev. Adv. Op. 47 (August 4, 2011)

Before the court en banc.  Opinion by Gibbons.
In these consolidated appeals regarding insurance coverage, the Court addressed whether an insurer must demonstrate that it was prejudiced by the delay before denying coverage based on untimely notice of a claim.  The Court first determined that the district court improperly granted summary judgment because the facts regarding the timeliness of the notice were in dispute.  Addressing the main substance of the case, the Court held that its decision rejecting a prejudice requirement, Insurance Co. v. Cassinelli, 67 Nev. 227, 216 P.2d 606 (1950), had been abrogated by a later enacted administrative regulation and that requiring the insurer to demonstrate prejudice is the better rule.   As such, the Court held that an insurer may not deny coverage based on untimely notice of a claim without demonstrating (1) that the notice was late and (2) that the late notice prejudiced the insurer.  Reversed and remanded for further proceedings.  (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson)

Williams v. Dist. Ct., 127 Nev. Adv. Op. 45 (July 28, 2011)

Before the Court En Banc (Parraguirre and Pickering recused).  Opinion by Hardesty.
In these consolidated writ petitions arising from actions involving the hepatitis C outbreak at the endoscopy clinic in Las Vegas, the Court considered: (1) procedurally, whether a writ is a proper vehicle for challenging an adverse evidentiary ruling regarding expert testimony; (2) whether a nurse is per se prohibited from offering an expert opinion regarding causation; and (3) what level of certainty is required for defense expert testimony regarding medical causation if it is offered to contradict the plaintiff’s theory and not as an independent opinion of causation.  The Court determined that a writ petition challenging an evidentiary decision generally will not be considered; however, if the petition presents an issue of first impression and fundamental public importance, the Court may choose to consider it.  The Court will be more likely to consider a writ petition from an evidentiary ruling if it also serves judicial economy, as in this case where there are multiple actions proceeding in the district courts and two courts had reached contradictory rulings.  Addressing the substance of the case, the Court rejected the argument that because the statutory definition of a registered nurse excludes  "acts of medical diagnosis" nurses should be prohibited from offering opinions as to medical causation.  The Court reaffirmed its flexible, case-specific test for determining if an expert is qualified, holding that a nurse may be qualified to testify regarding causation if he or she has the requisite specialized skills, knowledge, experience or training.   The major rule of the opinion reduces the level of certainty a defense medical expert needs to be able to contradict a plaintiff’s theory of causation.  The Court reaffirmed that if a defense expert offers an independent theory of causation and does not include the plaintiff’s theory in his or her analysis at all, that opinion must be supported by a reasonable degree of medical probability.  However, if a defense expert is offering an opinion of causation that simply calls the plaintiff’s theory into question by comparing it to other possible causes, the expert’s opinion need only be non-speculative, relevant, and supported by competent medical research.  Writs of mandamus granted in part and denied in part.  (Kerry Doyle, Associate in the Reno office of McDonald Carano Wilson)