Winter 2013 Highlights Alverson, Taylor, Mortensen & Sanders Succeeds on Appeal to the Nevada Supreme Court Regarding Sub-Contractor Liability The Nevada Supreme Court reversed a district court s orders and judgments against United Rentals, Inc. in excess of $1,400,000.00, based on language contained in sub-contractor agreement. Nevada Supreme Court Adopts Fourth Circuit Asbestos Causation Standard The Nevada Supreme Court adopted the toxic tort causation standard set forth in the Fourth Circuit Court of Appeals case, Lohramnn v. Pittsburg Corning Corp. U.S. District Court for the District of Nevada Grants Motion to Compel a Plaintiff s Social Networking Sites S o c i a l m e d i a w e b s i t e s and networks are increasingly discoverable in civil litigation in Nevada, depending upon the facts of the case and the specific allegations and claimed damages. Nevada Supreme Court Decisions Civil Procedure Successful Appeal to the Nevada Supreme Court in Case Regarding Sub-Contractor s Duty to Indemnify and Duty to Defend In 2004, Wells Cargo entered into a contract to perform work as the general contractor on a road improvement project in Las Vegas. Wells Cargo sub-contracted with United Rentals to provide traffic control in the construction zone. The contract between Wells Cargo and United Rentals, which was drafted by Wells Cargo, contained an indemnification provision which provided that United Rentals shall indemnify, defend and hold harmless from and against all claims, losses, costs and damages to the extent caused in whole or in part by the negligent acts or omissions or other faults of United Rentals. During the construction of the road project, a female motorcyclist was injured when she allegedly hit an unmarked bump on the road in the construction zone. The woman lost control of her motorcycle and sustained serious injury. The motorcyclist filed a complaint against Wells Cargo and United Rentals, alleging that the unmarked bump was a dangerous condition and that the defendants failed to provide sufficient warning. During the initial pleading stage of the litigation, Wells Cargo tendered its defense to United Rentals, which went unanswered. Wells Cargo then filed a crossclaim against United Rentals for breach of contract, contribution, expressed or contractual indemnification, and equitable indemnification. United Rentals answered Wells Cargo s cross-claim denying liability. Wells Cargo moved for partial summary judgment on its cross-claim for contractual indemnification, arguing that its claims were based on its contract with United Rentals and United Rentals negligent acts or omissions in providing traffic control. Wells Cargo also argued that the contractual indemnification provision required United Rentals to indemnify Wells Cargo even if Wells Cargo itself was found partially liable. United Rentals opposed the summary judgment motion and argued that the bump signage was not contemplated in the original contract, that Wells Cargo failed to demonstrate that United Rentals conduct caused the injuries and damages of the motorcyclist, and that United Rentals was not required to indemnify Wells Cargo for Wells Cargo s own negligence. The district court granted Wells Cargo s motion for summary judgment and ordered United In This Issue NEVADA SUPREME COURT Civil Procedure............. Page 1 Medical Malpractice......... Page 2 NEVADA JURY VERDICTS Personal Injury.............. Page 4 Breach of Contract.......... Page 5 Medical Malpracticee........ Page 5 Premises Liability............ Page 6 Employment Law............ Page 7 COMMENTS............ Page 7
Page 2 Nevada Legal Update Rentals to indemnify Wells Cargo, unless Wells Cargo was determined to be solely negligent. The district court further ordered that United Rentals was obligated to defend Wells Cargo from the date of Wells Cargo s first tender of defense, irrespective of any ultimate determination of liability. The trial court held that United Rentals defense obligation was not outcome driven. On the same day the district court granted the motion for summary judgment, Wells Cargo demanded that United Rentals indemnify it for any damages owed the injured motorcyclist, irrespective of allocations of fault or potential findings of sole negligence. Wells Cargo also demanded that United Rentals assume all of the current and previous defense costs of Wells Cargo, and waive its appellate rights against Wells Cargo. United Rentals refused, and Wells Cargo proceeded to finalize a $1,000,000.00 settlement agreement with the injured motorcyclist. Wells Cargo filed a motion for determination of good faith settlement, which United Rentals opposed, arguing that the settlement was not made in good faith and was grossly disproportionate to Wells Cargo s share of damages. The district court granted Wells Cargo s motion. As the district court approved Wells Cargo s settlement agreement with the motorcyclist, the motorcyclist s personal injury trial proceeded against United Rentals only. The jury returned a verdict in favor of United Rentals, specifically finding that United Rentals was negligent but that its negligence was not the cause of the accident. Notwithstanding the jury verdict, Wells Cargo filed a post-trial motion to enforce indemnification against United Rentals and sought reimbursement of the $1,000,000.00 that it paid to the motorcyclist in settlement. Wells Cargo argued that the jury s finding of negligence on the part of United Rentals meant that Wells Cargo could not be solely negligent, requiring United Rentals to indemnify Wells Cargo pursuant to the district court s order on summary judgment. United Rentals opposed the motion, arguing that its duty to defend and indemnify was contingent on a finding that United Rentals caused the motorcyclist s damages, which was specifically negated by the jury s verdict in United Rentals favor. The district court granted Wells Cargo s motion, asserting that because United Rentals knew about the settlement between Wells Cargo and the motorcyclist and had an opportunity to defend against it, Wells Cargo was only required to show that United Rentals was potentially liable, and not actually liable. Wells Cargo was awarded $1,000,000.00 plus interest and attorney s fees in the amount of $424,782.87. United Rentals appealed all orders and judgments in favor of Wells Cargo. On appeal, the Nevada Supreme Court considered what effect the specific subcontract language had on United Rentals duty to defend Wells Cargo in a personal injury action. The language provided that indemnification was required to the extent that any injury or damage was caused by United Rentals. The Nevada Supreme Court specifically noted that when a duty to indemnify arises from contractual language, it generally is not subject to equitable considerations, but rather is enforced in accordance with the terms of the contracting parties agreement. As such, a contractual provision for indemnity will be strictly construed. Strictly construing the contractual language, United Rentals argued that its duty to indemnify and defend only arose if it caused the underlying accident and related damages. The Nevada Supreme Court agreed, and held that the contract limited United Rentals duty to indemnify to the extent that United Rentals caused the motorcyclist s accident. Since the jury found that United Rentals negligence was not the proximate cause of the accident, Wells Cargo was not entitled to indemnification. As such, the district court erred in ordering United Rentals to indemnify Wells Cargo for any portion of Wells Cargo s $1,000,000.00 settlement with the motorcyclist. Similarly, United Rentals duty to defend Wells Cargo was limited to claims, losses, and damages relating to personal injury, negligent acts, or other faults of United Rentals. The Nevada Supreme Court held that to uphold the district court s ruling would force United Rentals to incur attorney s fees in defense of claims it may not have caused, which was contrary to the limiting language of the contract. The Nevada Supreme Court noted that it would not increase the obligations of parties where the parties intentionally limited such obligations. Because the jury found that United Rentals negligence did not proximately cause the accident, United Rentals did not have a duty to defend Wells Cargo and the district court erred in awarding Wells Cargo its defense costs and attorney s fees. The Nevada Supreme Court reversed all orders and judgments in favor of Wells Cargo. United Rentals v. Wells Cargo, December 6, 2012. Medical Malpractice The Nevada Supreme Court Adopts the Toxic Tort Causation Test Set by the Fourth Circuit Court of Appeals in Lohramnn V. Pittsburg Corning Corp. In a December 2012 appeal from a summary judgment dismissal, the Nevada Supreme Court examined several causation tests that different courts have implemented when a plaintiff s or decedent s mesothelioma is alleged to have been caused by exposure to a defendant s asbestos-containing products. The decedent Randy Holcomb died as a result of mesothelioma, a cancer affecting the lining of the lungs, typically caused by exposure to asbestos. Prior to decedent s death in 2008, Mr. Holcomb and his wife filed a complaint against the defendants, Kelly-Moore, Kaiser Gypsum, Georgia Pacific, and Union Carbide. The plaintiffs alleged that Mr. Holcomb s mesothelioma was caused by exposure to asbestos contained in the defendants products, which Mr. Holcomb used for several years while working as a construction laborer and automotive mechanic. After Mr. Holcomb died, the complaint was amended to add his children as plaintiffs, and to add a claim for wrongful death to the claims of negligence and strict products liability. According to Mr. Holcomb s deposition testimony, obtained prior to his death, he worked in the construction industry in Florida from 1969 to 1973, performing sheetrock and drywall work using both
Nevada Legal Update Page 3 dry joint-compound powder packaged in paper bags, which had to be mixed with water prior to use, and pre-mixed joint compound packages in buckets. Mr. Holcomb testified that the application of these joint-compound products created multiple occurrences of dusty, asbestosladen conditions at each job site he worked. In 1975, Mr. Holcomb moved to Las Vegas, following one year of service in the military. In Las Vegas, Mr. Holcomb worked again in the construction sheetrock business for several years. In both Florida and Nevada, Mr. Holcomb recalled regularly using products manufactured by Kelly- Moore, Kaiser Gypsum, and Georgia Pacific. Mr. Holcomb, however, could not recall using any particular product on any particular job, or at any particular time, and he could not identify in any concrete terms how often his construction duties encompassed sheetrock and drywall work. In addition to Mr. Holcomb s construction work, in 1969 he began working as a brake mechanic in the automotive industry as a side job. Mr. Holcomb s brake repair duties required scuffing, beveling, and filing the edges of asbestos-containing brakes, creating dusty conditions in which he reportedly breathed. The defendants separately moved for summary judgment on the grounds that Mr. Holcomb s deposition testimony was too vague to raise triable issues of fact regarding his threshold exposure to any asbestos contained in their products. The district court granted summary judgment finding that the plaintiffs failed to submit sufficient evidence of exposure to allow a jury to find that the defendants products were substantial factors in causing decedent s mesothelioma. The district court emphasized that Mr. Holcomb could not even definitively describe when or how regularly and frequently he used each of defendants products. In addition, Mr. Holcomb could not identify products, but only product manufacturers, and could not identify whether the products that he used contained asbestos. On appeal, the plaintiffs argued that because their medical experts opined that even low exposures were sufficient to cause mesothelioma, they established a threshold amount of exposure by averring that Mr. Holcomb was exposed to asbestos contained in the defendants products. The defendants argued, however, that the plaintiffs were unable to demonstrate a minimum level of exposure to asbestos in any of their particular joint-compound products. The Nevada Supreme Court acknowledged that regardless of the causes of action, both medical causation and sufficient exposure causation are necessary to prove a toxic tort case. The Nevada Supreme Court found that while medical causation was not an issue, the district court s application of the sufficient exposure prong was suspect. In opposing the defendants summary judgment motions, the plaintiffs alleged asbestos exposure from multiple sources. As such, they were required to demonstrate that a particular defendant sufficiently exposed Mr. Holcomb to asbestos in order to establish adequate causation to hold that defendant liable. The Nevada Supreme Court opined that given the lengthy latency period between exposure and manifestation of injury, poor record keeping, and the expense of reconstructing such data, plaintiffs in asbestos cases typically are unable to prove with any precision how much exposure they received from any particular defendant s product. The Court further elaborated that to remedy this situation, which could unfairly deny deserving plaintiffs in asbestos cases any recovery, many courts have fashioned a variety of causation standards in an attempt to balance the interests of plaintiffs with the interests of non-responsible defendants. The Court found that Nevada had not yet articulated any particular causation standard in asbestos cases for determining whether a plaintiff s or decedent s mesothelioma was sufficiently caused by exposure to a defendant s product. After reviewing multiple standards from other jurisdictions, the Nevada Supreme Court was persuaded by the Fourth Circuit case, Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986). In crafting a causation standard in Lohrmann, the Fourth Circuit attempted to reduce the evidentiary burden on plaintiffs while still absolving defendants who were not responsible for plaintiffs injuries. The Fourth Circuit held that when a plaintiff alleged multiple sources of exposure to asbestos, the plaintiff was required to provide exposure to a specific product attributable to the defendant, on a regular basis over some extended period of time and in proximity to where the plaintiff actually worked, such that it was probable, or reasonable to infer, that the exposure to the defendant s products caused plaintiff s injuries. In addition, the Fourth Circuit in Lohrmann applied the substantial factor test for proximate causation, which Nevada has also adopted. Based on the Lohrmann test, because the plaintiffs alleged more than one supplier of the asbestos-containing products, they were required to prove that Mr. Holcomb s exposure to the products made or sold by each particular defendant was a substantial factor in causing his mesothelioma and subsequent death. In applying the Lohrmann standard to the facts of the plaintiffs case, the Nevada Supreme Court found that Mr. Holcomb used Kelly Moore, Kaiser Gypsum, and Georgia Pacific products on numerous occasions and in several locations over an approximately seven-year period. Mr. Holcomb could not specifically identify the particular packaging, logos, or brands of the products, and he could not identify any specific locations or jobs in which he used the products. Regardless of Mr. Holcomb s lack of memory of specific products and locations, however, the Nevada Supreme Court held that such identification was not required under Lohrmann. Rather, Mr. Holcomb s testimony and other evidence provided a basis for a reasonable inference that Mr. Holcomb s mesothelioma was caused by exposure to each of the defendants products. Accordingly, the Court found that a jury could infer that the defendants products were a substantial factor in the development of Mr. Holcomb s mesothelioma. Therefore, summary judgment as to Defendants Kelly Moore, Kaiser Gypsum, and Georgia Pacific was not appropriate. With regard to Union Carbide, however, the Court held that summary judgment was proper. The plaintiffs argued that given the thousands of tons of asbestos that Union Carbide supplied to Kelly Moore, Kaiser Gypsum, and Georgia Pacific during the
Page 4 Nevada Legal Update timeframe Mr. Holcomb was allegedly exposed, a triable issue of fact existed as to the presence of Union Carbide fibers in the joint-compounds used by Mr. Holcomb. Union Carbide argued, however, that the plaintiffs did not meet their burden of establishing that Union Carbide asbestos was actually in any product used by Mr. Holcomb. The Nevada Supreme Court agreed with Union Carbide, as Mr. Holcomb did not know the specific products that he used at any particular time and could not establish that Union Carbide s asbestos was actually in the products that he used. Summary judgment was, therefore, reversed as to Kelly Moore, Kaiser Gypsum, and Georgia Pacific, but affirmed as to Union Carbide. Holcomb, et al v. Georgia Pacific, LLC, et al, December 6, 2012. Nevada Jury Verdicts Personal Injury Plaintiff Motorcyclist Increases His Arbitration Award of $45,000.00 to $72,000.00 at a Short Trial On May 4, 2012, a short trial was conducted on an appeal of a plaintiff s $45,000.00 arbitration award. The plaintiff, a 37 year-old male and member of the U.S. Air Force, was operating a motorcycle, traveling southbound on Highway 160 in the far right, number one travel lane. Another motorist, the defendant, was operating a pick-up truck and also traveling southbound, but in the number two travel lane. The plaintiff alleged that the defendant was weaving in and out of traffic without signaling, and that the defendant s erratic driving caused him to crash his motorcycle. The plaintiff was reportedly propelled over the front of his motorcycle s handlebars into jagged rocks placed in the highway median. The plaintiff testified that he struck the jagged rocks, but continued to tumble, striking the ground at least four times. The defendant, a female in her late twenties, denied liability for the accident and claimed the plaintiff was comparatively at fault. As a result of the accident, the plaintiff allegedly sustained severe residual lumbar and shoulder pain. He also reportedly sustained a posterior subluxation of the distal clavicle, which required surgical repair, and alleged that he would have a permanent bony protrusion on his left shoulder. The plaintiff also claimed cervical, thoracic, and lumbar soft tissue injures and other injures, including road rash and bruising. The plaintiff presented evidence of $17,371.75 in past medical expenses. The jury awarded the plaintiff $80,000.00 in compensatory damages, including $24,000.00 in medical expenses, $51,000.00 in past pain and suffering, and $5,000.00 in future pain and suffering. The plaintiff was, however, found to be ten percent at fault, so his award was reduced to $72,000.00. Following the trial, the plaintiff was also awarded $61,051.00 for attorney s fees, costs, and interest. Armstrong v. Millfin, May 4, 2012. Mistrial Declared Regarding a Pedestrian Accident in a Construction Zone In December 2006, the City of Las Vegas and the contractor Las Vegas Paving entered into an agreement for a construction project known as the Las Vegas Wash/Sandhill Rehabilitation and Nellis Boulevard Relief Sewer Project. Las Vegas Paving was to make repairs and improvements to public facilities owned by the City of Las Vegas, which included repairs to the intersection of Nellis Boulevard and Harris Avenue. Las Vegas Paving was also to submit a barricade plan, which was subject to inspection and approval by the City of Las Vegas. Litigation ensued when a female Nevada resident was walking through the construction zone on the west side of Nellis Boulevard, approaching the intersection of Harris Street. The plaintiff alleged that, upon her arrival at the southwest corner of the intersection, she observed concrete jersey rails erected along Harris Avenue, reportedly enclosing unmanned construction equipment. The plaintiff further alleged that a similar barricade existed on the northwest corner of the intersection, but there were no signs which indicated that the cross walk north and southbound across Harris Avenue was closed to pedestrians. No openings existed between the jersey rails to facilitate pedestrian access to the crosswalk, so the plaintiff was forced to walk around the jersey rails to obtain access to the crosswalk. When the plaintiff approached the crosswalk, however, she noticed that the crosswalk markings had been obliterated. On a green traffic signal, the plaintiff walked along the outside of the jersey rails and entered the unmarked crosswalk and was struck by a vehicle operated by a non-party. At trial against the City of Las Vegas and Las Vegas Paving, the plaintiff alleged that Las Vegas Paving failed to provide a safe pedestrian route, as required by the underlying agreement with the City. The plaintiff alleged that the City of Las Vegas failed to properly inspect the barricades erected by Las Vegas Paving. The defendants denied liability, and argued that a pedestrian throughway/gap did exist to allow pedestrians, including the plaintiff, to cross Harris Avenue and proceed northbound. The plaintiff, however, did not proceed through the erected walkway, but rather crossed at a location with no crosswalk and darted into traffic. The plaintiff alleged that she sustained a shattered left femur, which required surgical open reduction and internal fixation, plus additional injures to her pelvis, hip, and knee. The plaintiff requested an unspecified amount of damages. The jury deliberated over several hours and days, but was unable to reach a decision. The court eventually declared a mistrial based on a hung jury. Garcia v. Las Vegas Paving Corp and City of Las Vegas, June 13, 2012. Defendant Obtains Directed Verdict Following Second Day of Trial for Insufficient Causation Evidence A 49 year-old, female plaintiff alleged she was rear-ended by the defendant, which caused injury to her cervical spine and right
Nevada Legal Update Page 5 shoulder. Both injuries reportedly required surgical intervention. The defendant, admitted negligence, but argued that the accident did not cause the plaintiff s damages or surgeries, as the plaintiff had been involved in multiple prior accidents. Prior to trial, the plaintiff made a pretrial offer of judgment for $182,064.39, and the defendant responded with a $7,500.00 offer. At trial, the plaintiff requested compensatory damages for medical expenses totaling $166,927.00, and for lost wages totaling $68,191.00. After the plaintiff s case in chief, the defendant anticipated calling two of the plaintiff s treating orthopedic physicians to establish that the accident did not cause the plaintiff s alleged injuries. During the second day of trial, however, the court granted the defendant s motion for a directed verdict. The Court s ruling was based upon the plaintiff s failure to present sufficient medical evidence to establish causation of her injuries and damages. Bennett v. Murphy, June 21, 2012. Breach of Contract Plaintiff Receives Reimbursement Following a Trial Based Upon the Breach of Multi-Level Marketing Agreements Defendant Professional Networkers was a distributor for non-party 4Life Research USA, LLC, a company that sells its nutritional supplement products using multi-level marketing. In May 2000, the plaintiff began a business as an independent distributor of 4Life s products, as a member of the defendant Professional Networkers downline organization. In March 2003, the plaintiff and Professional Networkers entered into an agreement, whereby the plaintiff was to use his skills in advertising, copywriting, and marketing to further Professional Networkers business. In addition, defendant Atkins, on behalf of Professional Networkers, committed to build the plaintiff s downline organization and raise it to the rank of gold international diamond. The compensation plan developed by 4Life was based upon both sales volume and organization structure. As such, to increase your pay in 4Life, a distributor needed to meet not only both sales and volume requirements, but also rank requirements. A distributor s compensation could differ greatly depending upon his rank. Thus, achieving the rank of gold international diamond would have resulted in a significant income increase to the plaintiff. In 2007, 4Life expanded its business into India. In May 2007, a distributor in the plaintiff s downline organization, nonparty McKelvey, entered into a contract with an experienced multi-level marketer in India. In 4Life, a distributor who enters a new country shortly after it opens can gain dominance and acquire a large percentage of business in the country. Defendant Atkins contacted the plaintiff to inform him that he intended to work through McKelvey to build an organization in India, but required financial assistance. The plaintiff and Professional Networkers entered into another agreement, in which the plaintiff agreed to provide funding to defendant Professional Networkers to offset some of the costs of establishing an organization in India. Professional Networkers agreed to actively and exclusively build the plaintiff s downline in India, which would include 100 percent of defendant Atkins personal time and the staff of Professional Networkers. From May 2007 to October 2007, the plaintiff invested $53,000.00. On October 8, 2007, defendant Atkins disclosed to the plaintiff that defendants had a tax dispute with the IRS, which resulted in the IRS freezing all of the defendants assets. The defendants asked the plaintiff for additional funds to front significantly more of the cost of building the business in India. The defendants promised that, by February or March 2008, Professional Networkers would take over funding to catch-up to the funds contributed by the plaintiff. Between January and October 2008, the defendants continued to ask the plaintiff to contribute more funds to their venture; however, the plaintiff refused and rather filed a breach of contact lawsuit. The plaintiff alleged that the defendants breached their agreements with the plaintiff, were guilty of fraud, and refused to repay funds borrowed from the plaintiff. The plaintiff also alleged that the defendants never intended to fulfill the terms of their agreements, but rather misled the plaintiff so he would contribute funds to the defendants for the defendants own personal gain. The plaintiff further alleged that when he became more selective and limited with respect to the costs he would front, defendants began to actively support other downline organizations in India in breach of their agreements with the plaintiff. Lastly, the plaintiff alleged that in addition to the funds he had already invested, he also invested over 2,000 hours of time in marketing and advertising work to build the defendants reputations in India. At trial, the plaintiff sought reimbursement of the $178,000.00 he had paid to defendant Professional Networkers, plus the return of $17,500.00, which he personally loaned to defendant Atkins. The plaintiff also sought disgorgement damages of approximately $1,332,000.00, which was comprised of an estimated $37,000.00 per month for three years that defendant Professional Networkers received from the use of the plaintiff s money. The plaintiff was awarded $119,196.00 in compensatory damages against Professional Networkers, and $17,500.00 in compensatory damages against defendant Atkins. Lacoste v. Professional Networkers, Inc. and Atkins, May 4, 2012. Medical Malpractice Plaintiff Receives $95,000.00 in Compensatory Damages Following an Overdose of Dilaudid Injected Into Her Pain Pump The plaintiff, a 49 year-old, disabled female, had numerous pre-existing conditions and had an intrathecal pain pump implanted in 2000 to treat her chronic pain. The pump delivered opiate pain medication directly into the plaintiff s cerebral spinal fluid. For several years, the plaintiff was treated by the defendant medical facility for chronic pain. On June 17, 2008, the plaintiff sought defendant s services for a refill of her pump with the medication Dilaudid, which is a powerful opiate medication used for pain relief. The
Page 6 Nevada Legal Update defendant, a physician s assistant, prepped the plaintiff and the facility charted as follows: [T]he pump is sterilely entered. Approximately two cubic centimeters instilled, and two cubic centimeters wasted. 22.994 milligrams per day of Dilaudid preservative-free thirty-seven micrograms per ml with a new refill date of June 23, 2008. No complications. Follow-up in one month. Later that same morning, the plaintiff was transported by ambulance from the defendant s medical facility to a non-party hospital with complaints of dizziness, nausea, and feeling hot. The plaintiff was diagnosed as having received an accidental overdose of medication by a physician, and was hospitalized for three days. The plaintiff subsequently filed a lawsuit against the medical facility and physician s assistant. At trial, the plaintiff alleged that the defendant medical center fell below the standard of care when Dilaudid was injected into the pocket of the plaintiff s pump rather than into the pump itself. The plaintiff also alleged that the defendant failed to properly supervise and train its physician s assistant who refilled the plaintiff s pump. As a result of the defendants negligence, the plaintiff claimed she developed an infection in her pump reservoir, which required corrective surgical procedures and replacement of the pump. The defendants denied liability and argued that any infection the plaintiff developed four months later was unrelated to the June 2008 incident. Rather, the defendants alleged that the plaintiff s reported infection was related to a skin contaminate like methicillin-resistant staph aureus (MRSA). The defendants also argued that the plaintiff had received at least two refills during the interim period, either of which was the likely source of the skin contaminate infection. Further, defendants presented evidence that pain pumps only have a shelf life of approximately four years and require periodic replacement, irrespective of any extravasation issue. The jury awarded the plaintiff $95,000.00 in compensatory damages, representing $50,000.00 in medical expenses and $45,000.00 for pain and suffering. Additionally, the plaintiff was awarded $85,000.00 for compensatory damages on her claim for negligent training and supervision. Rosenblum v. Tadlock, M.D., P.C. d/b/a Center for Pain Management and Carter, PA-C, May 24, 2012. Defense Verdict in Favor of Doctor and Medical Facility on Claims of Wrongful Death A female decedent, age 56, was survived by her husband and her adult son and daughter, who all brought suit for her alleged wrongful death. The plaintiffs alleged that decedent s emergency medicine specialist and medical facility fell below the standard of care when decedent s trachea was lacerated during an intubation procedure. The plaintiffs further alleged that the laceration was undetected for 14 hours, which resulted in an infection and pumping of air into the decedent s chest cavity, which caused her death. At trial, the plaintiffs called an emergency medical specialist from California who testified that the injury to decedent s trachea could not have occurred without excessive force being utilized during the intubation procedure. The defendants, decedent s physician and hospital, denied liability and argued through their own experts that the decedent had severe scoliosis, a hypoplastic right lung, was paraplegic, and had a large diaphragmatic hernia. The defendants also argued that decedent s medical condition, along with her gender and age, predisposed her to Nevada Legal Update is published quarterly by Alverson, Taylor, Mortensen & Sanders 7401 W. Charleston Blvd. Las Vegas, Nevada 89117 (702) 384-7000 Fax (702) 385-7000 www.alversontaylor.com injury. In addition, the defendants claimed that the decedent would have certainly died if the intubation procedure had not been attempted. Moreover, several of the decedent s treating physicians testified that the decedent may have died even without the alleged injury, as she was septic and terminally ill at the time of intubation. Plaintiffs requested that the jury award $175,000.00 in past medical expenses plus an unspecific amount for funeral and burial expenses. The jury found for defendants. Rode v. Fremont Emergency Services and Dennis M.D., July 18, 2012. Premises Liability Wrongful Death Personal Injury and Premises Liability Action against Hotel and Casino Results in a Defense Verdict A decedent male, age 82, was survived by his estate, son, and daughter, who brought suit alleging decedent s wrongful death. The plaintiffs claimed that as decedent pulled his 2005 Chevrolet Malibu into a parking stall at the defendant s parking garage, his vehicle impacted the concrete spandrel panel in front of his vehicle. The panel collapsed as a result of the impact, which reportedly caused the vehicle to fall several stories to the ground. The decedent sustained injuries and reportedly died four months later. At trial, the plaintiffs alleged the defendant hotel and casino, which owned and operated the garage, negligently failed to strengthen the garage s block wall following a similar accident nine months earlier. The plaintiffs called a mechanical engineer who testified that the block wall should have been stronger than what was required by the Uniform Building Code. The plaintiffs also called an accident reconstructionist, who was of the opinion that the decedent was traveling approximately five to ten miles per hour at the time of impact. The defendant denied liability, and argued at trial that the block wall was properly designed and constructed. The defendant also argued that the decedent negligently drove through the wall, which caused his injuries.
Nevada Legal Update Page 7 The plaintiffs offered to settle prior to trial for $1,250,000.00, but the defendants offered $75,000.00. During closing arguments, the plaintiffs requested $411,988.00 in past medical expenses. The jury found for defendant. Marcinkowski v. GNLV Corp. d/b/a Golden Nugget Hotel and Casino, June 6, 2012. Plaintiff Fails to Recover In a Slip and Fall Action Where She Alleged $467,414.71 in Past Medical Specials Plaintiff, a 37 year-old female, was visiting Las Vegas when she entered the lobby of the defendant s hotel. The plaintiff allegedly slipped and fell on water left on the hotel s marble floor. The plaintiff filed suit against the hotel, alleging that the defendant violated its own policies and procedures when it left the flooring in a hazardous condition. The plaintiff also alleged that the defendant had actual or constructive notice of the water, based upon an incident report prepared by the defendant s security guard who arrived on scene to assist the plaintiff. The defendant denied liability, arguing that it had no notice of the water on the floor. At trial, the defendant introduced as evidence a surveillance video of the incident area, which showed a leaking ice cooler an estimated 22 seconds prior to the plaintiff s fall. The defendant claimed it had no notice of the leaking ice cooler, and as such no sufficient time to warn patrons of the condition. The video also showed a grandmother and a toddler walking in the same area minutes before the plaintiff s fall without incident. The plaintiff alleged that as a result of the fall she sustained cervical, thoracic, and lumbar strains/sprains, and required a cervical fusion at C5 and C6. The plaintiff also claimed that she had ongoing residual pain, and her enjoyment of life had been diminished because of her alleged injuries. During trial, the plaintiff introduced evidence of approximately $467,414.71 in medical expenses, but approximately $50,000.00 of those expenses were reportedly inadmissible, as they were not disclosed to the defendant in a timely manner. The plaintiff made a pretrial offer of judgment for $249,999.00, and the defendant served a $25,000.00 offer of judgment. In her closing argument, the plaintiff requested the jury award her $548,000.00. The jury found for the defendant. Tussey v. Mandalay Resort Group d/b/a the Hotel at Mandalay Bay, July 13, 2012. Employment Law Former Employees of Restaurant Fail to Recover in Employment Discrimination and Harassment Litigation Seven plaintiffs between the ages of 16 and 34 filed a lawsuit against a defendant restaurant corporation. The plaintiffs were employed by the defendant and alleged that they were subjected to employment discrimination, harassment, and retaliation, which the defendant corporation failed to properly investigate. The trial of the plaintiffs claims began on June 22, 2012. The plaintiffs initially called an expert to testify that the defendant did not properly investigate the plaintiffs complaints. The defendant denied liability for the plaintiffs damages and argued that the plaintiffs fabricated their complaints in order to assist in getting their former boss/ friend fired. The plaintiffs allegedly sustained psychiatric injuries, plus loss of enjoyment of life, which they claimed would require future medical expenses. The plaintiffs called an expert psychiatrist who was of the opinion that plaintiffs developed post-traumatic stress disorders and major depression. The plaintiffs also called an economist to testify as to the plaintiffs loss of past and future wages due to loss of earning capacity. The defendant called its own expert psychiatrist who performed independent medical examinations of plaintiffs and it was his opinion that no plaintiffs had sustained damages. The defendant s expert also opined that several of the plaintiffs had pre-existing psychological conditions. Plaintiffs made a $24 million dollar pretrial demand and Defendant offered $1,000.00 to each of the plaintiffs. The jury found for defendant. Miles, et al v. Las-Cal Corp. d/b/a Taco Bell Corporation, June 22, 2012. Comments Information regarding use of social media networks, such as Facebook, are becoming more and more discoverable in civil litigations. The United States District Court for the District of Nevada recently granted a motion to compel the production of a plaintiff s Facebook and MySpace accounts; however, the Court suggested that some factual predicate for the production is necessary under the discovery rules, and social media fishing expeditions will not be permitted. In Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-VCF, 2012 U.S. Dist. LEXIS 85143 (June 20, 2012), the plaintiff, a minor, alleged through her parents that she sustained massive, lifethreatening, permanent, and irreversible injuries as a result of a motor vehicle collision. The plaintiff further alleged that her vehicle s seatbelt system was defective, which caused her seatbelt to spool out during the collision. The plaintiff filed a products liability action against defendants, the manufacturer and distributor of the seatbelts. As part of her allegations, the plaintiff claimed damages ranging from a lost scholarship, the loss of ability to play the violin, loss of enjoyment and quality of life from being restricted from most physical activities, emotional distress and depression from feeling helpless, and a permanently affected memory. During discovery, however, the defendants obtained wall posts and photographs from the plaintiff s public Facebook profile that depicted events including: the plaintiff s ability to swing on a swing set, dance, and engage in water sports; the plaintiff s ability to care for children and pets; the plaintiff s social activities, including consumption of alcohol, bowling with friends, and late night partying; the plaintiff s sleeping habits; the plaintiff s personal relationships; the plaintiff s post accident physical recovery; the plaintiff s employment; the effect of the plaintiff s medications on her emotional, physical, and sexual habits;
Alverson Taylor Mortensen & Sanders 7401 W. Charleston Blvd. Las Vegas, Nevada 89117 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. offers by the plaintiff to share medications with others; and the plaintiff s enrollment in institutions of higher education. Based on the information discovered from the plaintiff s public Facebook profile, the defendants sought additional information, including the plaintiff s private Facebook information and also her MySpace account, including wall posts, photographs, and messages. The defendants also sought to require the plaintiff to produce her social networking accounts for in camera inspection. In response, the plaintiff provided a redacted copy of her Facebook account history and a few photographs. On a motion to compel by the defendants, the U.S. District Court rejected the defendants request for in camera inspection, but held that based on the photographs and materials the defendants had already obtained, the requested materials from plaintiff s Facebook account were clearly relevant. The Court also noted that there was no applicable privilege. Nevertheless, the Court acknowledged that litigation does not permit a complete and open public display of [the] plaintiff s life. Rather, the Court noted that it is appropriate to balance the defendants need for relevant information against the plaintiff s rights to be free from annoyance, embarrassment, oppression, or undue burden in discovery pursuant to FRCP 26. The U.S. District Court ordered the plaintiff to disclose, to defense counsel only, all information from her Facebook and MySpace accounts on an electronic storage device along with an index of redacted social networking site communications. If defense counsel believed that material was relevant but had not been provided, defense counsel was to provide a list of those materials to counsel for the plaintiff. If the plaintiff disagreed with the relative nature of the requested materials then her counsel was to submit the materials to the Court for review, along with their arguments as to discoverability. Defense counsel was also ordered to return the electronic storage device and not disclose or copy the material. Based on the foregoing case Thompson v. Autoliv ASP, Inc., and additional secondary case precedent, discovery of social media information in Nevada is permissible in the right circumstances, depending upon a party s specific allegations. It appears, however, that courts may be reluctant to grant a social medial request for information, if there is no preliminary showing that granting such a request will lead to relevant and admissible evidence. Issues regarding the discovery and admissibility of social networking information will likely be addressed more frequently by Nevada courts, as the use of these websites has become so prevalent.