1 Spring 2009 Highlights Personal Injury Attorney Publicly Reprimanded for Assisting in the Unauthorized Practice of Law The Nevada Supreme Court publicly reprimands Nevada personal injury attorney Glen Lerner for violating the Nevada Rules of Professional Conduct. Mr. Lerner assisted an unlicensed attorney in the unauthorized practice of law. Jury Finds Defendant Not Liable in Trucking Collision Injuring Five High School Students Four female Plaintiffs were passengers in a Jeep Cherokee that collided with Defendant s truck. All Plaintiffs sustained serious injuries, including head trauma and bone fractures. Defendant asserted that the driver of the Jeep was at fault, as it was racing another vehicle and ran a stop sign. Plaintiff Awarded $2,000,000 for Hotel Room Slip and Fall Plaintiff slipped and fell on water in her hotel room bathroom. The water accumulated from the air conditioner that was installed above the ceiling. She suffered a cervical injury, which required surgical fusions at two levels. Defendant admitted negligence. Nevada Supreme Court Decisions Professional Conduct Personal Injury Attorney, Glen Lerner, Publicly Reprimanded by the Nevada Supreme Court for Professional Conduct Violation A personal injury attorney in Nevada, Glen Lerner, Esq., was recently publicly reprimanded by the Nevada Supreme Court for violating Rule 5.5 of the Nevada Rules of Professional Conduct. Rule 5.5 prohibits a lawyer from assisting in the unauthorized practice of law. From 1998 until 2005, Kevin Rowe was employed as a paralegal/law clerk in Mr. Lerner s Las Vegas office. In March of 2005, Mr. Rowe was admitted to practice law in the State of Arizona, but was never admitted to practice law in Nevada. Mr. Rowe became a partner in Mr. Lerner s Bullhead City, Arizona, office and divided his time between Bullhead City and Las Vegas. In April of 2005, Mr. Lerner s Las Vegas office was retained to represent an injured plaintiff. The defendant was insured, and Mr. Rowe s primary responsibility, despite his lack of a Nevada license, was to conduct negotiations with defendant s insurance company. He was also in charge of preparing policy limit demands and signed these demand letters Kevin Rowe, Esq. In June of 2005, defendant s insurance company contacted the State Bar of Nevada and inquired whether Mr. Rowe was licensed in Nevada. Upon notification that he was not, they filed a grievance against Mr. Lerner. A hearing was conducted before the Southern Nevada Disciplinary Board for Mr. Lerner and Mr. Rowe. At the hearing, Mr. Lerner indicated that, in his office, it was common practice for law clerks and paralegals to conduct prelitigation negotiations with an insurance company s claims adjustor. Mr. Rowe testified that, to his knowledge, he did not engage in any improper activity. Both Mr. Lerner and Mr. Rowe argued that because the claim was in the prelitigation stage, and the negotiations were conducted with a non-lawyer insurance claims adjustor, the actions did not constitute the practice of law. While it was Mr. Lerner s contention that he did not have knowledge that the pre-litigation negotiations were a violation of Rule 5.5, he had previously received several private reprimands, including three for identical In This Issue NEVADA SUPREME COURT Professional Conduct Page 1 Civil Procedure Page 2 NEVADA JURY VERDICTS Personal Injury Page 3 Contract Page 4 Premises Liability Page 5 COMMENTS Americans with Disabilities Amendments Act of 2008 (Part Two) Page 5
2 Page 2 Nevada Legal Update conduct. One of these reprimands even concerned Mr. Rowe. Mr. Lerner also put forth the argument that Rule 5.5 is unconstitutionally vague and ambiguous because it does not clearly specify what actions are permissible for non-lawyers such as Mr. Rowe. The State Bar argued that valuing a client s claim was the practice of law, and that Mr. Rowe s actions constituted the unauthorized practice of law. The State Bar also maintained that Rule 5.5 was not impermissibly vague and was properly enforced in this case. The hearing panel agreed with the State Bar and rejected Mr. Lerner s constitutional challenges to Rule 5.5 and concluded that Mr. Lerner s conduct assisted in the unauthorized practice of law. The panel recommended a public reprimand and payment of costs. Mr. Lerner appealed this ruling to the Nevada Supreme Court. On review and upon examination of prior precedent and authority from other jurisdictions, the Nevada Supreme Court concluded that what constitutes the practice of law must be determined on a case-by-case basis, and is implicated whenever a person is faced with legal issues that cannot be handled by resort to routine forms or customs. This occurs when the person makes the decision not to rely on his or her own judgment, but to obtain assistance from a stranger to the situation. In the interest of public protection, this stranger must be qualified to render such assistance. The abundance of case law asserts that this is the reason for the high standards of training and ethics imposed upon lawyers. Moreover, whether an activity constitutes the unauthorized practice of law has been defined by other jurisdictions to be when an unlicensed person offers advice or judgment about legal matters to another person for use in a specific legal setting. In this case, Mr. Rowe routinely conducted initial client consultations and decided whether the representation would be accepted. He also negotiated clients claims, which required him to make legal arguments in support of the clients position. In addition, he served as the clients sole contact in the firm. The Court noted that all of these activities have been held by prior cases and other courts to constitute the practice of law. Additionally, the Court held that since Mr. Rowe s conduct was the practice of law, and since Mr. Rowe s actions were in conformity with the policies of Mr. Lerner s firm, Mr. Lerner assisted in this unauthorized practice of law. As part of a regular or repetitive course of business, Mr. Rowe worked out of Mr. Lerner s Las Vegas office and acted on behalf of Nevada clients. Mr. Lerner was aware that such conduct constituted the practice of law because he had three prior reprimands for similar activities. Mr. Lerner argued that, at most, a private reprimand would be sufficient, but the Supreme Court disagreed. Because Mr. Lerner knowingly violated a duty to the public and to the profession by assisting in the unauthorized practice of law, and because he had been privately reprimanded three times for identical misconduct to no effect, the Court concluded that a public reprimand was the appropriate discipline. Mr. Lerner was publicly reprimanded by the Nevada Supreme Court and ordered to pay the costs of the disciplinary proceedings. Civil Procedure Supreme Court Holds Occupational Disability Claimant Lost Her Opportunity to Submit Evidence by Not Producing it at Her Administrative Hearing When it Was Available The Nevada Supreme Court held that in order to remand an administrative matter to the appeals officer for reconsideration with additional evidence, good cause must be shown. Good cause is not shown when a party s attorney deliberately or negligently decides not to present available evidence during the course of the administrative hearing and that party then seeks to have that evidence considered after an adverse decision. In April of 2005, Kathy Garcia submitted an occupational disease claim to her employer, Scolari s Food & Drug, complaining of pain in her arms and shoulders. After reporting her claim, Ms. Garcia s condition was evaluated by several medical providers. None of the physicians or nurse practitioners who evaluated Ms. Garcia connected the pain in her arms and shoulders to her employment. Ms. Garcia was also referred to Donald S. Huene, M.D. for an independent medical evaluation. Dr. Huene diagnosed Ms. Garcia with lateral epicondylitis, myofascitis, possible fibromyalgia, and possible radial tunnel syndrome. None of these were diagnosed as related to her job duties. Rather, Dr. Huene concluded that Ms. Garcia s condition was due to an aging process and, while work was not the primary cause of her condition, it aggravated her symptoms. Based on Dr. Huene s evaluation, Ms. Garcia s claim for occupational disease benefits was denied. Ms. Garcia administratively appealed the decision and a hearing was held before an appeals officer. At the hearing, the only evidence Ms. Garcia presented was her own testimony. Ms. Garcia s attorney instead chose to rely on the medical evidence produced by Scolari s, which included Dr. Huene s report. Ms. Garcia s attorney argued that a work-related aggravation of a non-industrial condition was compensable. Scolari s rebutted this claim by advancing the argument that Dr. Huene s report did not establish a compensable claim because the doctor concluded that Ms. Garcia did not have an occupational disease. The parties were allowed additional time to submit further information before a decision was made by the appeals officer. Ms. Garcia s attorney had at this time
3 Nevada Legal Update Page 3 two additional documents: a functional capacity evaluation confirming that Ms. Garcia had cervical/shoulder/scapular issues, and a letter from Dr. Glenn Miller that purportedly connected Ms. Garcia s condition to her employment. Her attorney did not submit these reports, which were available at the time of the hearing. Having no additional evidence, the appeals officer concluded that Ms. Garcia failed to meet her statutory burden of establishing industrial causation. The appeals officer also noted that even though Dr. Huene indicated that Ms. Garcia s employment had aggravated her nonindustrial condition, under N.R.S , such an aggravation was not compensable unless an occupational disease was independently established. Ms. Garcia s claim was denied for benefits. Ms. Garcia subsequently filed a petition for judicial review in the district court and moved for leave to present additional evidence under N.R.S. 233B.131(2). The district court denied Ms. Garcia s motion to present additional evidence, concluding that she did not establish good cause for failing to submit the evidence during the administrative proceeding. The district court denied Ms. Garcia s petition for judicial review, and she appealed to the Nevada Supreme Court. The Nevada Supreme Court concluded that good cause did not exist for remanding the matter for reconsideration with new evidence when the attorney deliberately decided not to present the evidence during the course of the administrative proceeding. In this case, Ms. Garcia argued that her attorney negligently failed to introduce material evidence during the administrative proceedings. There was also some suggestion that Ms. Garcia s attorney thought either that the burden of proof and persuasion were on the employer or that Dr. Huene s independent medical evaluation established a compensable claim. The Court held that these were not good causes for the failure to present the additional evidence to the appeals officer. Additionally, the Supreme Court concluded that the appeals officer did not err in determining that appellant had failed to show that her condition was work-related. The reports from Ms. Garcia s initial medical examinations did not connect her condition to her employment, and Dr. Huene s independent medical evaluation stated that her current symptomatology was a nonindustrial condition attributable to aging. The Supreme Court affirmed the district court order, and denied Ms. Garcia s petition for judicial review. Nevada Jury Verdicts Personal Injury Jury Finds Defendant Not Liable in Trucking Collision Involving Five High School Students Plaintiffs, four female high school students, were passengers in a Jeep Cherokee. Each Plaintiff sustained massive injuries, including head trauma and bone fractures, in a motor vehicle collision with a truck. One of the Plaintiffs will allegedly require care for the remainder of her life. Plaintiffs sued the company owner of the truck and alleged that its truck driver should have anticipated and taken steps to avoid the collision, other than applying his breaks and slowing into a turn at the intersection. The 16 year old male driver of the Jeep died and was a non-party to the action. The trail was bifurcated and liability was tried first. During the first stage of the trial, Defendant denied liability and alleged that the Jeep s driver caused the collision by speeding, racing another vehicle, and running a stop sign. Defendant also advanced the argument that its driver, who was slowing into a turn at the Y intersection, had just encountered a near-miss collision with another truck, who had run a stop sign immediately before the subject collision, and had no opportunity to avoid the accident. The trial regarding liability lasted seven days and the jury was out less than one hour before returning a verdict for the Defendant. McIntyre v. Pipes Paving Co., decided October 14, Defendants Succeed in Reducing Plaintiffs Arbitration Awards on Short Trial Plaintiffs Obeso, a female laundry worker, and Trejo, a male laborer, alleged that they were broadsided in a gas station parking lot by Defendant, a 40 year-old minister. The matter proceeded to Arbitration in which Plaintiff Obeso was awarded $12,000, and Plaintiff Trejo was awarded $9,000. Defendant appealed these awards and the matter proceeded to a Short Trial. At the Short Trial, Defendant claimed that the damage to Plaintiffs vehicle was minor and the vehicle had preexisting damage. Defendant s accident reconstructionist, Brian K. Jones, P.E., reported that all of the damage to Plaintiffs vehicle could not have been caused by the instant collision. Based on his examination of photographs of the Plaintiffs vehicle, he also opined that the damage could not have been the result of one impact because the elevations were inconsistent. Plaintiffs both alleged soft tissue injuries that required treatment for three to four months. Defendant argued that the Plaintiffs were not injured as a result of this collision, but had pre-existing injuries. The jury awarded Plaintiff Obeso $545 in compensatory damages, and awarded Plaintiff Trejo $285 in compensatory damages. Obeso v. Phillips, decided August 7, 2008.
4 Page 4 Nevada Legal Update Jury Finds for Defendants in Construction Zone Motor Vehicle Accident Plaintiff, age 23, was traveling eastbound on Lake Mead Boulevard, when he was allegedly T-boned in a construction zone by an employee of Defendant, Tab Contractors. Plaintiff sued Tab Contractors and also Advanced Traffic Safety, who was responsible for the construction zone warning devices. Plaintiff s accident reconstructionist testified regarding the location of the accident, and Plaintiff s civil engineering expert testified that it was his opinion that Defendant Advanced Traffic Safety s warning plan was deficient and negligent for the safety of the public. Defendants denied liability, and alleged that Plaintiff caused the collision by driving on the shoulder of the roadway in an unsafe manner for the conditions. Advanced Traffic Safety called a traffic engineer to testify that it met or exceeded the standard of care, and properly performed the work it was contracted to do. Plaintiff alleged that he sustained traumatic permanent brain shear injury, with residual brain damage, plus lumbosacral annular tears at L5 and S1. Plaintiff s treating physician, David R. Lanzkowsky, M.D., testified regarding Plaintiff s disk injury and need for future treatment. Plaintiff also called neurologist, Russell J. Shah, M.D., to testify regarding his brain damage and permanent impairment. Defendants asserted that Plaintiff did not follow instructions for treatment of his alleged injuries. During closing arguments, Plaintiff asked the jury to award him $1,700,000 in compensatory damages. After a nine day trial and a four hour deliberation, the jury found for Defendants. Frost v. Tab Contractors, Inc., decided September 22, While Jury Was Deliberating, Wrongful Death Action Settles for $3,500,000 A 56 year-old female was survived by her spouse and children who brought suit for her wrongful death. Plaintiffs alleged that while executing a left turn, decedent was struck by Defendant s employee, who ran a four way stop sign at the intersection of Tampa and Alexander. Defendant denied liability and argued that the decedent failed to yield the right of way, and in turn, caused the collision. Decedent died at the scene approximately 15 minutes post-accident. The coroner testified that she died from blunt force trauma injures, which included multiple fractures and bilateral hemothoraxes. Plaintiffs made a pretrial demand of $3,900,000, and Defendants offered $1,100,000 in response, but Plaintiffs did not accept the offer. During trial, Plaintiffs called an expert economist to testify that decedent s lost income was $250,000, and her lost household services were valued at $285,000. During closing arguments, Plaintiffs requested $8,000,000 with no comparative fault, and Defendants argued that Plaintiff was over 50 percent at fault. Defendants also argued, in the alternative, that $1,000,000 was adequate compensation. While the jury was deliberating for over four hours, the matter settled for $3,500,000. However, the total jury verdict of $4,785,000 was made known. The jury intended to award the decedent s estate $500,000 in compensatory damages, the decedent s spouse $1,285,000 in compensatory damages ($250,000 lost income, $285,000 Nevada Legal Update is published quarterly by Alverson, Taylor, Mortensen & Sanders 7401 W. Charleston Blvd. Las Vegas, Nevada (702) Fax (702) lost household services, $500,000 past pain and suffering, and $250,000 in future pain and suffering), and each of decedent s four children $750,000 in compensatory damages. Perry v. Mohave Electric Co., decided September 12, Contract Defendants Succeed on a Motion for Judgment as a Matter of Law in a Contract Dispute Plaintiffs purchased a residence from Defendants and alleged that prior to the sale, Defendants were required to complete, execute, and deliver a Seller s Real Property Disclosure Form, disclosing any known conditions or aspects of the residence that could materially affect its value. Defendant indicated to Plaintiffs that they were unaware of any such adverse conditions that could affect the value of the residence. After Plaintiffs discovered defects in the residence s original paint and stucco, they initiated suit against Defendants alleging that Defendants failed to disclose defects in the home. They also alleged that the Defendant husband acted as the general contractor in the original construction of the residence, and therefore, had knowledge of the defects. Defendants denied liability and claimed that they were unaware of any purported defects. Additionally, Defendants argued that by hiring a licensed contractor to repaint the residence and repair any existing cracks in the stucco, Plaintiffs reasonably relied on the representation that all repairs had been made. Defendants also alleged that any defects were exacerbated or caused by the individual hired by Plaintiffs to perform repair work on the property. Prior to trial, Plaintiffs requested $215,000 in general damages plus treble damages. On the fifth day of trial, the Court granted Defendants Motion for
5 Nevada Legal Update Page 5 Judgment as a Matter of Law. The court found that Plaintiffs failed to meet their burden of proof and establish that Defendants had knowledge of any defects at the time they sold the residence to Plaintiffs. Landon v. Schulz, decided September 9, Premises Liability Plaintiff Awarded $2,000,000 in Compensatory Damages in Premises Liability Case Plaintiff, a 52-year old female, slipped and fell on some water in her hotel room bathroom. The water accumulated on the floor from the air conditioner that was installed above the ceiling. Defendant admitted negligence. Plaintiff alleged she sustained cervical injury, which required surgical fusions at two levels. She also claimed that she would require ongoing treatment. Defendant s expert, Hugh S. Selznick, M.D., concurred with Plaintiff s treating physicians, Patrick S. McNulty, M.D., Michael A. Praater, M.D., and Brian A. Lemper, D.O, that Plaintiff s treatment was reasonably necessary and causally related. Plaintiff made a pretrial offer of judgment for $600,000, but Defendant was unwilling to offer more than $450,000. During closing arguments, Plaintiff requested the jury award her $2,500,000 in compensatory damages, while Defendants suggested that an award of $450,000 was reasonable. The jury awarded Plaintiff a total of $2,000,000 in damages. Panjanon v. LVH Corp. d/b/a Las Vegas Hilton, decided October 3, Plaintiff s Fasting Results in Defense Verdict in Food Poisoning Case Plaintiff, a 45 year old female, Nevada visitor, alleged that she and her parents ate at the Café Lago, which was owned and operated by Desert Palace doing business as Caesar s Palace. During this visit to Café Lago, Plaintiff consumed eggs, bacon, sausage and a muffin. Afterward Plaintiff became ill. Plaintiff alleged that Defendant negligently, carelessly, and recklessly prepared, stored and negligently served Plaintiff contaminated food. She further alleged that as a result of these actions that she suffered nausea, vomiting, diarrhea, shortness of breath, and extreme headaches, which required emergency medical treatment. In response, Defendant denied liability, arguing that Plaintiff had become ill as a result of fasting the entire day prior to eating at Defendant s café. Following a one-day trial, four jurors deliberated for an unspecified period, returning a verdict for the Defendant. Mundra v. Desert Palace, Inc., dba Caesar s Palace, decided July 31, Comments In the Winter 2009 edition of the Nevada Legal Update, the 2008 Amendments to the Americans with Disabilities Act were discussed. This issue includes additional discussion regarding mitigating measures, discrimination on the basis of disability and implications for employers. The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) clarifies that a determination as to whether an individual is substantially limited in a major life activity is to be made without regard for mitigating measures such as medication, equipment, appliances or medical devices. Prescription eyeglasses and contact lens are, however, excluded, and may be considered when assessing whether an individual is substantially limited. The ADAAA specifically rejects the United States Supreme Court s finding in Sutton v. United Airlines, 527 U.S. 471 (1999), which required that measures taken to correct and/or mitigate a physical or mental impairment be taken into consideration when determining whether an individual was disabled. Eyeglasses and contacts were exempted because the very nature of the correction eliminates an employee s need for protection under the law. If, however, uncorrected vision is a requirement, it disregards an employee s ability to compensate for diminished vision. Therefore, as under the ADA, the ADAAA requires that an employer demonstrate a business necessity as to why an individual with corrected vision could not perform the same job as a person with uncorrected vision. The ADA protects individuals who are regarded as having an impairment. The ADAAA clarifies that an individual is protected under the regarded as provision so long as he establishes that he has been subjected to prohibited action based on an actual or perceived physical or mental impairment. As amended, an individual need not establish that he is substantially limited in a major life activity to be protected under the regarded as prong of disability. The new legislation rejects the Supreme Court s holding in Sutton, which held that an employer must believe either that one has a substantially limiting impairment that one does not have, or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting to be liable under the regarded as prong of the ADA. The amendments make clear that individuals who are regarded as having impairments that are minor and transitory, i.e. an actual or expected duration of six months or less, are not protected under the ADAAA. The ADAAA amends Section 102 of the ADA to replicate the structure of nondiscrimination protection in Title VII of the Civil Rights Act of 1964, as amended. This changes the language of section 102(a) from prohibiting discrimination against a qualified individual with a disability because
6 Alverson Taylor Mortensen & Sanders 7401 W. Charleston Blvd. Las Vegas, Nevada PRST STD U.S. POSTAGE PAID LAS VEGAS, NV PERMIT NO. 447 The information included in this newsletter is not a substitute for consultation with an attorney. Specific circumstances require consultation with appropriate legal professionals. of the disability of such individual to prohibiting discrimination against a qualified individual on the basis of Disability. The ADAAA ensures that the emphasis in questions of disability discrimination is properly on the critical inquiry of whether a qualified person has been discriminated against on the basis of disability, rather than whether that individual is a person with disability. Nevertheless, it is the employee s burden to establish that he is a qualified individual with a physical or mental impairment who can perform the essential functions of the job. The ADAAA will undoubtedly increase the number of disabled individuals in the workplace, and employers will now need to consider individuals with conditions controlled by medication or other mitigating measures as coming under the ADA. While the new law should not require companies to completely revise their current disability employment policies and practices, coverage and protections afforded under the amended ADA will expand significantly and it is advisable to review all policies and procedures as preventative measure to ensure compliance. This expansion of federal disability law should have little impact for employers in states such as California, New Jersey, and New York, where state and/or local laws are even more expansive in their coverage and regulations. In most other states, however, there will likely be an increase in the number of suits filed, as the ADAAA makes it easier to define coverage and provides a broader definition of who is covered. Under the amended federal law, employees or applicants claiming a disability still must be qualified and will have to provide documentary evidence from a health care provider supporting the disability claim. As the ADAAA places the emphasis of inquiry squarely on the interactive process, employers must be prepared to discuss reasonable accommodations with applicants and/or employees and, as appropriate, provide qualified applicants or employees with accommodations to perform their essential job duties. Employers should review their disability policies, procedures and complaint process. Refresher training on the ADA s interactive process and reasonable accommodations obligations should be reviewed with Human Resources staff, as well as management. Challenges under the ADA are likely to arise with respect to reasonable accommodations and individuals claiming to be regarded as disabled. As such, records or logs of accommodation requests, accommodations provided and/or denied, along with the rationale for approval or denial should be maintained.