Before the Court en banc. Opinion by Chief Justice Pickering.
In this opinion, the Court considered whether services performed for the purposes of developing and providing expert opinion testimony in a civil case required a private investigator’s license under NRS 648.060. Appellant, State of Nevada Private Investigator’s Licensing Board (the “Board”) cited Respondents for engaging in the business of a private investigator without a Nevada license. Dwayne Tatalovich was hired as an expert witness and in preparation for such testimony, performed several functions which, as the Board asserted, constituted activities of a private investigator. The Court explained that, in Nevada, a person engaging in the business of a private investigator (as defined by NRS 648.012) must obtain a license to do so; however, the Court noted that such licensing restrictions exist to protect the public from unqualified individuals who lack the skills necessary to perform the tasks of professionals in that field. Furthermore, the Court emphasized, such policies are not served by applying the licensing requirements to experts whose credibility and qualifications are tested in court and subject to a separate set of rules. As such, the Court determined that the licensing scheme set forth in NRS 648.060 was never intended to encompass the conduct of expert witnesses performing tasks in preparation for testimony before a court. Importantly, the Court highlighted that, after the Respondents were cited by the Board, the Legislature amended the language of NRS 648.012 to specifically exempt expert witnesses from the licensing requirements of NRS 648.060. Thus, the Court concluded that expert witnesses are not required to obtain licenses to perform investigative work in preparation for developing and giving expert opinion testimony. Affirmed. (Amanda Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
Showing posts with label Evidence. Show all posts
Showing posts with label Evidence. Show all posts
Thursday, September 19, 2013
Thursday, August 1, 2013
Khan v. Bakhsh, 129 Nev. Adv. Op. 57 (Aug. 1, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Cherry.
In this appeal from judgment after a bench trial, the Court considered several evidentiary issues dealing with contracts for the sale of real property. First, the Court addressed whether evidence of the terms of an agreement for the sale of property that was written but had been lost or destroyed could be considered without violating the statute of frauds. The Court held that evidence of the existence and terms of the agreement should have been admitted because the statute of frauds was satisfied by the original writing even if that writing was lost or destroyed before trial. Second, the Court addressed the argument that the parol evidence rule barred testimony regarding the fraud used to induce an agreement and testimony regarding the existence of the lost or destroyed agreement. The Court determined that the parol evidence rule does not bar consideration of evidence regarding fraud in the inducement of a contract, to establish subsequent alteration of a contract, or to prove the existence or terms of a written but lost or destroyed agreement. Finally, the Court determined that a liquidated damages provision requiring payment of “150% of actual damages” was an unenforceable penalty. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal from judgment after a bench trial, the Court considered several evidentiary issues dealing with contracts for the sale of real property. First, the Court addressed whether evidence of the terms of an agreement for the sale of property that was written but had been lost or destroyed could be considered without violating the statute of frauds. The Court held that evidence of the existence and terms of the agreement should have been admitted because the statute of frauds was satisfied by the original writing even if that writing was lost or destroyed before trial. Second, the Court addressed the argument that the parol evidence rule barred testimony regarding the fraud used to induce an agreement and testimony regarding the existence of the lost or destroyed agreement. The Court determined that the parol evidence rule does not bar consideration of evidence regarding fraud in the inducement of a contract, to establish subsequent alteration of a contract, or to prove the existence or terms of a written but lost or destroyed agreement. Finally, the Court determined that a liquidated damages provision requiring payment of “150% of actual damages” was an unenforceable penalty. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Wednesday, July 3, 2013
Nevada Power Co. v. 3 Kids, L.L.C., 129 Nev. Adv. Op. 47 (July 3, 2013, opinion modified by Court order July 24, 2013)
Before the Court en banc (Chief Justice Pickering recused). Opinion by Justice Gibbons.
In this opinion, the Court held that a jury instruction based on an overbroad reading of its decision in City of North Las Vegas v. Robinson, 122 Nev. 527, 134 P.3d 705 (2006) was not prejudicial because a separate jury instruction remedied the error. The action at district court was a jury trial regarding the just compensation for a taking by Appellant of a portion of Respondent's property for a utility easement. The jury was instructed to disregard the existence of a setback along the northernmost 20 feet of the subject property for purposes of calculating the value of the property. Appellant objected to this instruction, but the district court overruled the objection based on Respondent's argument that the Robinson decision, which addressed the applicability of a property's highest and best use in the calculation of value, was broad enough to encompass the instruction. The Court held that the instruction to disregard the setback was beyond the scope of Robinson because setbacks are appropriate for a jury to consider in discounting value. However, the Court also held that a separate, more thorough instruction alleviated the error by correctly interpreting Robinson, and therefore that there was no prejudice to Appellant caused by the erroneous instruction. Additionally, the jury's verdict was supported by substantial evidence. The Court offered a sample jury instruction for cases where a jury must determine just compensation for a property burdened by a use restriction without disregarding its highest and best use. A second issue before the Court was whether the district court abused its discretion by allowing testimony from Respondent's expert. The Court determined that the alleged weaknesses in the expert report went to the weight of the evidence and not its admissibility. The Court observed that Appellant had ample opportunity to address these weaknesses and therefore that the district court did not abuse its discretion by allowing the testimony. Appellant's argument that the expert's analysis violated NRS 50.285 was likewise unfounded because the statute does not define the type of documentation or data upon which an expert may rely. Affirmed. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this opinion, the Court held that a jury instruction based on an overbroad reading of its decision in City of North Las Vegas v. Robinson, 122 Nev. 527, 134 P.3d 705 (2006) was not prejudicial because a separate jury instruction remedied the error. The action at district court was a jury trial regarding the just compensation for a taking by Appellant of a portion of Respondent's property for a utility easement. The jury was instructed to disregard the existence of a setback along the northernmost 20 feet of the subject property for purposes of calculating the value of the property. Appellant objected to this instruction, but the district court overruled the objection based on Respondent's argument that the Robinson decision, which addressed the applicability of a property's highest and best use in the calculation of value, was broad enough to encompass the instruction. The Court held that the instruction to disregard the setback was beyond the scope of Robinson because setbacks are appropriate for a jury to consider in discounting value. However, the Court also held that a separate, more thorough instruction alleviated the error by correctly interpreting Robinson, and therefore that there was no prejudice to Appellant caused by the erroneous instruction. Additionally, the jury's verdict was supported by substantial evidence. The Court offered a sample jury instruction for cases where a jury must determine just compensation for a property burdened by a use restriction without disregarding its highest and best use. A second issue before the Court was whether the district court abused its discretion by allowing testimony from Respondent's expert. The Court determined that the alleged weaknesses in the expert report went to the weight of the evidence and not its admissibility. The Court observed that Appellant had ample opportunity to address these weaknesses and therefore that the district court did not abuse its discretion by allowing the testimony. Appellant's argument that the expert's analysis violated NRS 50.285 was likewise unfounded because the statute does not define the type of documentation or data upon which an expert may rely. Affirmed. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP.)
Frei v. Goodsell, 129 Nev. Adv. Op. 43 (July 3, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Parraguirre.
In this appeal from an attorney malpractice action stemming from trust litigation, the appellant raises two unrelated issues stemming from an action to void certain documents that transferred assets among two revocable trusts benefitting the appellant’s and his wife’s children from other marriages. Appellant’s attorney, acting at the instruction of appellant’s agent, who had been appointed as both appellant’s attorney-in-fact and as trustee to appellant’s wife’s trust, prepared certain transfer documents for appellant’s signature. Although the attorney never personally met with appellant, appellant signed the documents, which resulted in the transfer of $1 million of appellant’s assets to his wife’s trust. After his wife’s death, Appellant sought to void the documents and filed a legal malpractice action against his attorney. The first issue concerns whether the district court properly denied a motion in limine to preclude the attorney from arguing that an attorney-client relationship did not exist when the district court had previously determined, in the trust litigation concerning the documents, that such a relationship existed and created a conflict of interest. In resolving this issue, the court applied the four-part issue preclusion test from Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1052, 194 P.3d 709, 711 (2008), and determined that only the fourth element (whether “the issue was actually and necessarily litigated”) was in dispute. The court concluded that, while the existence of an attorney-client relationship was actually litigated, it was not necessarily litigated. In Nevada, issue preclusion will only apply if a matter was necessary to the prior judgment. Analogizing to a factually similar Massachusetts Supreme Judicial Court decision, the court held that resolving the underlying trust litigation did not depend on whether an attorney-client relationship existed and, therefore, that issue was not necessarily litigated in the trust action and issue preclusion did not apply. The second issue the Court addressed concerned whether the district court properly excluded parol evidence to demonstrate the appellant’s intent in executing the documents that ultimately resulted in the $1 million transfer. Appellant conceded that the documents were unambiguous, but he argued that the documents did not meet his objectives. The Court held that parol evidence is not admissible to demonstrate intent where the language of a document is clear on its face and, therefore, the district court properly excluded the evidence. The Court further reiterated that its statement in Russ v. General Motors Corp., 111 Nev. 1431, 1438-39, 906 P.2d 718, 723 (1995), that a court should consider evidence of intent to determine whether a document is susceptible to interpretation is not the law as it has been discredited in another published opinion as dicta. In a footnote, the Court also stated that it was not clear whether the parol evidence rule should apply at all when a party seeks recovery for legal malpractice and is not seeking to contradict the terms of a document. The Court could not address that that question as it was not properly presented in this appeal. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
In this appeal from an attorney malpractice action stemming from trust litigation, the appellant raises two unrelated issues stemming from an action to void certain documents that transferred assets among two revocable trusts benefitting the appellant’s and his wife’s children from other marriages. Appellant’s attorney, acting at the instruction of appellant’s agent, who had been appointed as both appellant’s attorney-in-fact and as trustee to appellant’s wife’s trust, prepared certain transfer documents for appellant’s signature. Although the attorney never personally met with appellant, appellant signed the documents, which resulted in the transfer of $1 million of appellant’s assets to his wife’s trust. After his wife’s death, Appellant sought to void the documents and filed a legal malpractice action against his attorney. The first issue concerns whether the district court properly denied a motion in limine to preclude the attorney from arguing that an attorney-client relationship did not exist when the district court had previously determined, in the trust litigation concerning the documents, that such a relationship existed and created a conflict of interest. In resolving this issue, the court applied the four-part issue preclusion test from Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1052, 194 P.3d 709, 711 (2008), and determined that only the fourth element (whether “the issue was actually and necessarily litigated”) was in dispute. The court concluded that, while the existence of an attorney-client relationship was actually litigated, it was not necessarily litigated. In Nevada, issue preclusion will only apply if a matter was necessary to the prior judgment. Analogizing to a factually similar Massachusetts Supreme Judicial Court decision, the court held that resolving the underlying trust litigation did not depend on whether an attorney-client relationship existed and, therefore, that issue was not necessarily litigated in the trust action and issue preclusion did not apply. The second issue the Court addressed concerned whether the district court properly excluded parol evidence to demonstrate the appellant’s intent in executing the documents that ultimately resulted in the $1 million transfer. Appellant conceded that the documents were unambiguous, but he argued that the documents did not meet his objectives. The Court held that parol evidence is not admissible to demonstrate intent where the language of a document is clear on its face and, therefore, the district court properly excluded the evidence. The Court further reiterated that its statement in Russ v. General Motors Corp., 111 Nev. 1431, 1438-39, 906 P.2d 718, 723 (1995), that a court should consider evidence of intent to determine whether a document is susceptible to interpretation is not the law as it has been discredited in another published opinion as dicta. In a footnote, the Court also stated that it was not clear whether the parol evidence rule should apply at all when a party seeks recovery for legal malpractice and is not seeking to contradict the terms of a document. The Court could not address that that question as it was not properly presented in this appeal. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).
Thursday, June 28, 2012
Tri-County Equipment & Leasing v. Klinke, 128 Nev. Adv. Op. 33 (June 28, 2012)
Before the Court En Banc. Opinion by Justice Hardesty.
In this appeal, the Court considered whether the collateral source rule operated to exclude evidence of California workers' compensation payments received by a California employee involved in an accident in Nevada. Reversing and remanding, the Court determined that evidence of the actual amount of workers' compensation benefits paid should have been admitted to the jury pursuant to NRS 616C.215, which permits the admission of such evidence in limited circumstances. Although NRS 616C.215 permits the admission of evidence regarding workers' compensation payments to a jury in certain circumstances provided that a clarifying jury instruction is given, the district court granted a motion in limine finding that the statute did not apply because the respondent received her worker's compensation pursuant to California's workers' compensation scheme and not Nevada's workers’ compensation scheme. Reversing, the Court held that the district court's narrow reading of NRS 616C.215 as applying to only Nevada workers' compensation benefits would defeat the statute's purpose of avoiding confusion to the jury about the payment and nature of workers' compensation benefits in cases in which those benefits have been paid under another state's laws. The Court found no logical reason to treat benefits received pursuant to another state's workers' compensation scheme any differently than benefits received from a Nevada employer. Therefore, in a trial governed by Nevada law, the workers' compensation payments made to an injured employee must be admitted as evidence and the proper instruction regarding the jury's consideration of those payments must be given. Additionally, although the Court specifically ordered briefing to determine whether a reduction in the cost of medical services based on a relationship with an insurance company, a medical “write-down”, was a benefit for which evidence would be barred by the collateral source rule, the majority held that because NRS 616C.215 specifically allows evidence of the benefits actually paid they did not need to address the issue of medical write-downs generally. Justice Gibbons, in a concurring opinion with which Justice Cherry joined, would reach the issue and hold that the collateral source rule bars evidence of medical write-downs. Reversed and Remanded. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this appeal, the Court considered whether the collateral source rule operated to exclude evidence of California workers' compensation payments received by a California employee involved in an accident in Nevada. Reversing and remanding, the Court determined that evidence of the actual amount of workers' compensation benefits paid should have been admitted to the jury pursuant to NRS 616C.215, which permits the admission of such evidence in limited circumstances. Although NRS 616C.215 permits the admission of evidence regarding workers' compensation payments to a jury in certain circumstances provided that a clarifying jury instruction is given, the district court granted a motion in limine finding that the statute did not apply because the respondent received her worker's compensation pursuant to California's workers' compensation scheme and not Nevada's workers’ compensation scheme. Reversing, the Court held that the district court's narrow reading of NRS 616C.215 as applying to only Nevada workers' compensation benefits would defeat the statute's purpose of avoiding confusion to the jury about the payment and nature of workers' compensation benefits in cases in which those benefits have been paid under another state's laws. The Court found no logical reason to treat benefits received pursuant to another state's workers' compensation scheme any differently than benefits received from a Nevada employer. Therefore, in a trial governed by Nevada law, the workers' compensation payments made to an injured employee must be admitted as evidence and the proper instruction regarding the jury's consideration of those payments must be given. Additionally, although the Court specifically ordered briefing to determine whether a reduction in the cost of medical services based on a relationship with an insurance company, a medical “write-down”, was a benefit for which evidence would be barred by the collateral source rule, the majority held that because NRS 616C.215 specifically allows evidence of the benefits actually paid they did not need to address the issue of medical write-downs generally. Justice Gibbons, in a concurring opinion with which Justice Cherry joined, would reach the issue and hold that the collateral source rule bars evidence of medical write-downs. Reversed and Remanded. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Thursday, June 14, 2012
Davis v. Beling, 128 Nev. Adv. Op. 28 (June 14, 2012)
Before Justices Saitta, Hardesty and Parraguirre. Opinion by Justice Saitta.
This action arose from violations of NRS Chapter 645, which governs the duties of real estate professionals in real estate transactions. First addressing an evidentiary issue, the Court held that an offer to settle a dispute is not admissible to prove the failure to mitigate damages because the failure to mitigate goes to the amount of the claim, a use of such evidence specifically barred by NRS 48.105. The Court next concluded that NRS 645.251, which provides that a real estate licensee need not “comply with any principles of common law that may otherwise apply to any of the duties of the licensee as set forth in NRS 645.252, 645.253 and 645.254,” does not bar all common law claims against real estate professionals but prohibits common law claims for conduct governed by those statutes. As such, NRS 645.251 prevents suits against real estate professionals for fraudulent concealment where the duty to disclose is governed by NRS 645.252-645.254. The exclusive remedy for such failures to disclose is a cause of action for breach of the statutory duty. In contrast, a broker may be held liable under common law for an agent’s failure to disclose because supervisory liability is not conduct covered by NRS 645.252-645.254. Next, the Court addressed the proper measure of damages for a breach of the statutory duty to disclose. Based on the language of NRS 645.257, which allows for the recovery of “actual damages,” the Court held that only compensatory and not punitive damages could be recovered for a real estate professional’s breach of a statutory duty. The Court further held that the diminution in value of the property purchased because of the failure to disclose and the carrying costs for maintaining that property were a proper measure of damages. The Court also reiterated that the economic loss doctrine does not bar recovery of purely economic damages for claims involving intentional breaches of duties that arise independent from a contractual duty. Affirmed in part, reversed in part, and remanded for further proceedings. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP.)
This action arose from violations of NRS Chapter 645, which governs the duties of real estate professionals in real estate transactions. First addressing an evidentiary issue, the Court held that an offer to settle a dispute is not admissible to prove the failure to mitigate damages because the failure to mitigate goes to the amount of the claim, a use of such evidence specifically barred by NRS 48.105. The Court next concluded that NRS 645.251, which provides that a real estate licensee need not “comply with any principles of common law that may otherwise apply to any of the duties of the licensee as set forth in NRS 645.252, 645.253 and 645.254,” does not bar all common law claims against real estate professionals but prohibits common law claims for conduct governed by those statutes. As such, NRS 645.251 prevents suits against real estate professionals for fraudulent concealment where the duty to disclose is governed by NRS 645.252-645.254. The exclusive remedy for such failures to disclose is a cause of action for breach of the statutory duty. In contrast, a broker may be held liable under common law for an agent’s failure to disclose because supervisory liability is not conduct covered by NRS 645.252-645.254. Next, the Court addressed the proper measure of damages for a breach of the statutory duty to disclose. Based on the language of NRS 645.257, which allows for the recovery of “actual damages,” the Court held that only compensatory and not punitive damages could be recovered for a real estate professional’s breach of a statutory duty. The Court further held that the diminution in value of the property purchased because of the failure to disclose and the carrying costs for maintaining that property were a proper measure of damages. The Court also reiterated that the economic loss doctrine does not bar recovery of purely economic damages for claims involving intentional breaches of duties that arise independent from a contractual duty. Affirmed in part, reversed in part, and remanded for further proceedings. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP.)
FGA Inc., v. Giglio, 128 Nev. Adv. Op. 26 (June 14, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Douglas.
In this appeal from a jury verdict in a tort action, the Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove the defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. In answering the question in the negative, the Court held that because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, the mode of operation approach does not extend to “sit-down” restaurants. The Court found no reason to extend mode of operation liability to such sit-down restaurants absent a showing that their owners created an increased risk of a potentially hazardous condition by having their customers perform tasks that are traditionally carried out by employees. Additionally, the Court addressed issues regarding the general verdict rule and rulings on the admissibility of evidence of pre-existing conditions, alcohol consumption, and testimony to correct erroneous statements. Of particular importance, the Court held that the general verdict rule (which provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party) does not apply when there are multiple factual theories supporting a single legal theory of recovery. As a result, the appellant in this case was able to obtain reversal of the judgment on the jury verdict based on errors that affected only the mode of operation basis for the finding of negligence, despite evidence in the record from which a jury could have concluded that an employee of the restaurant was directly responsible for the spilled substance. Reversed and remanded. (Anthony L. Carano, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal from a jury verdict in a tort action, the Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove the defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. In answering the question in the negative, the Court held that because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, the mode of operation approach does not extend to “sit-down” restaurants. The Court found no reason to extend mode of operation liability to such sit-down restaurants absent a showing that their owners created an increased risk of a potentially hazardous condition by having their customers perform tasks that are traditionally carried out by employees. Additionally, the Court addressed issues regarding the general verdict rule and rulings on the admissibility of evidence of pre-existing conditions, alcohol consumption, and testimony to correct erroneous statements. Of particular importance, the Court held that the general verdict rule (which provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party) does not apply when there are multiple factual theories supporting a single legal theory of recovery. As a result, the appellant in this case was able to obtain reversal of the judgment on the jury verdict based on errors that affected only the mode of operation basis for the finding of negligence, despite evidence in the record from which a jury could have concluded that an employee of the restaurant was directly responsible for the spilled substance. Reversed and remanded. (Anthony L. Carano, Associate in the Reno office of McDonald Carano Wilson LLP.)
Thursday, May 17, 2012
Club Vista Financial Servs. v. Dist. Ct., 128 Nev. Adv. Op. 21 (May 17, 2012)
Before the Court En Banc (Justice Parraguirre recused). Opinion by Chief Justice Cherry.
In this petition for writ of mandamus or prohibition, the Court considered whether, and under what circumstances, a party to a lawsuit may depose an opposing party’s former attorney. The Court discussed the inherent policy concerns surrounding the deposition of a party’s attorney and noted that many jurisdictions disfavor the practice of taking the deposition of a party’s attorney. As such, because of the potential to create an undue burden, the Court concluded that such depositions should only be permitted in “exceptionally limited circumstances.” Therefore, the Court adopted a stringent framework established by the Eighth Circuit in Shelton v. American Motors Corp., 805 F. 2d 1323 (8th Cir. 1986) rather than a flexible standard as proposed by the real parties in interest. The Court held that a party seeking to depose opposing counsel has the burden of proving that: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information is relevant and nonprivileged; (3) and the information is crucial to the preparation of the case. The Court also indicated that the district court should consider whether the attorney is a percipient witness to the facts giving rise to the complaint. In light of these considerations, the Court directed the district court to consider whether the deposition would be permissible when analyzed under the Shelton framework. Petition granted in part. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this petition for writ of mandamus or prohibition, the Court considered whether, and under what circumstances, a party to a lawsuit may depose an opposing party’s former attorney. The Court discussed the inherent policy concerns surrounding the deposition of a party’s attorney and noted that many jurisdictions disfavor the practice of taking the deposition of a party’s attorney. As such, because of the potential to create an undue burden, the Court concluded that such depositions should only be permitted in “exceptionally limited circumstances.” Therefore, the Court adopted a stringent framework established by the Eighth Circuit in Shelton v. American Motors Corp., 805 F. 2d 1323 (8th Cir. 1986) rather than a flexible standard as proposed by the real parties in interest. The Court held that a party seeking to depose opposing counsel has the burden of proving that: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information is relevant and nonprivileged; (3) and the information is crucial to the preparation of the case. The Court also indicated that the district court should consider whether the attorney is a percipient witness to the facts giving rise to the complaint. In light of these considerations, the Court directed the district court to consider whether the deposition would be permissible when analyzed under the Shelton framework. Petition granted in part. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
Thursday, October 6, 2011
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)
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)
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.)
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.)
Thursday, July 28, 2011
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)
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)
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