Michaels v. Pentair Water Pool & Spa , 2015 NV 81 ( 2015 )

131 Nev., Advance Opinion• 8
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
EMMETT J. MICHAELS, No. 59685
Appellant,
vs.
PENTAIR WATER POOL AND SPA, FILED
INC., A DELAWARE CORPORATION,
Respondent. OCT 0 1 2015
LAE K. LINDEMAN
CL RI
CHIEF DEP4T\ CLER
Appeal from a final district court order in a products thibility
action. Eighth Judicial District Court, Clark County; Douglas W.
Herndon, Judge.
Vacated and remanded.
Winner & Carson, P.C., and Robert A. Winner and Brent A. Carson, Las
Vegas,
for Appellant.
Lewis Roca Rothgerber LLP and Daniel F. PoIsenberg and Joel D.
Henriod, Las Vegas; Buchalter Nemer and George J. Stephan, Los
Angeles, California,
for Respondent.
BEFORE GIBBONS, C.J., TAO and SILVER, JJ.
OPINION
By the Court, TAO, J.:
The instant appeal arises from allegations of attorney
misconduct in a products liability trial involving swimming pool filters.
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After the jury rendered a verdict in favor of the manufacturer, the plaintiff
filed a post-trial motion seeking a new trial based upon alleged misconduct
committed by the manufacturer's attorney. The district court denied the
motion, but failed to make the detailed findings required by the Nevada
Supreme Court.
The Nevada Supreme Court recently issued two opinions
clarifying how claims of attorney misconduct must be handled both by the
district court and subsequently on appeal. In this opinion, we take the
opportunity to summarize those recent developments and to provide
guidance to district courts tasked with resolving claims of misconduct.
Because the district court in this case failed to make detailed findings
regarding the alleged misconduct that might have enabled us to determine
whether those cases would have affected its decision, we must remand the
case to the district court to reconsider its decision in light of those cases
and to make the necessary findings. To assist the district court, we
identify some factors that must be considered on remand.
FACTS
Respondent Pentair Water Pool and Spa, Inc. (Pentair),
manufactures various models of swimming pool filters for both commercial
and residential swimming pools, including the Nautilus FNS filter. In
2006, appellant Emmett Michaels purchased a Nautilus FNS filter for use
in his backyard swimming pool. Michaels had owned his swimming pool
for 27 years, and when his previous filter canister malfunctioned, he
integrated the FNS canister into his preexisting filter system. Like many
other homeowners, Michaels connected his pool filter system to an
automatic timer that could be programmed to turn the system off at night
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and on again during the day.' On July 1, 2008, the filter system was
turned off but Michaels manually turned it on in anticipation of guests
arriving The FNS filter canister exploded, and pieces struck Michaels in
the left eye and ruptured his eyeball, which had to be removed and
replaced with a prosthesis. 2 Thereafter, Michaels initiated the underlying
action and sought damages based on his injuries. While Michaels asserted
several claims for relief, only the products liability claim is the subject of
the instant appeal.
Michaels alleged that the design of the FNS filter was legally
defective because it lacked either (1) a redundant or secondary restraint to
hold the canister together in the event of an explosive failure of the clamp;
or (2) an external, automatic air release valve allowing any compressed air
trapped within the canister to be released if pressure reached dangerous
levels. Michaels also alleged that Pentair failed to give him proper
warnings regarding the risk of explosion.
Following a two-week trial, the jury returned a verdict in favor
of Pentair on all claims. Michaels filed a post-trial motion for judgment as
a matter of law or, alternatively, for a new trial, which was denied by the
district court. Michaels now appeals from the denial of that motion.
1 During the trial, witness testimony was presented that "almost all"
homeowners connect their filter systems to automatic timers, an assertion
that was not disputed by Pentair.
2 While,as discussed below, some of the precise circumstances
surrounding Michaels' eye injury were disputed below and are again
disputed on appeal, that the filter canister exploded and that the explosion
was the proximate cause of the injury to Michaels' eye appears to be
undisputed.
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The operation of swimming pool filters
In order to properly understand the evidence and the
arguments made by the parties, a brief explanation of the operation of
swimming pool filters is appropriate. The Nautilus FNS filter is a so-
called split-shell design consisting of two pieces held together by a steel
clamp to form a cylinder in which removable filter grids are placed. In
operation, water is pumped from the pool and forced under pressure
through the filter grids, which trap debris and remove it from the pool
water. The steel clamp that holds the two cylinder pieces together can be
removed so that the canister may be separated and the filter grids
periodically cleaned or replaced.
Pool filter systems are designed as either open systems, in
which a water pump pushes pool water through the filter, or closed
systems, in which a water pump suctions water through the filter. In
either system, a system of pipes carries water from the pool through the
filter canister and then back to the pool. The flow of water through the
system may be directed by a series of valves mounted on the pipes.
After a filter has been in operation for some time, debris from
the pool can accumulate on the filter grids and eventually may clog the
flow of water through the system, impeding the effectiveness of the
system. To allow removal of some of the debris, some users manipulate
the valves to reverse the flow of water through the filter grids and into a
separation tank that collects the debris, in a process colloquially known as
backwashing. Pentair discourages backwashing and its engineers
consider it unsafe, but during trial its expert conceded that manufacturers
were aware that users frequently backwashed filters and that such
backwashing was foreseeable. In any event, after the filter grids have
been backwashed, the valves can be switched back to their normal
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operating positions. Even with regular backwashing, however, the filter
grid elements can eventually become so clogged with detritus that they
may sometimes have to be removed and replaced entirely, which is why
split-shell filter canisters such as the Nautilus FNS are designed with
clamps allowing the canister to be opened.
So long as the filter system is operating normally, water
continually moves through the filter cartridge and the water pressure
within the filter canister remains more or less constant. However, the
pressure within the system may vary from its normal operating levels
under two conditions. First, if a large quantity of debris has collected on
the filter grids and clogged the system, a water pressure differential may
be created within the system as water is pumped into the filter canister
under pressure but only trickles out through the clogged grids. This is not
normally considered a dangerous occurrence, because water (unlike air)
cannot be easily compressed and most filter systems can safely contain
water pressure differentials without difficulty, although the ability of
those systems to clean the water may become compromised.
Far more relevant to the instant case is the second condition,
which may occur when the filtration system is turned completely off,
causing the water to stop flowing and potentially permitting air to bleed
into the system. In commercial pool systems, this condition rarely occurs
because most commercial pools are left on continuously, except perhaps
occasionally when being actively serviced. On the other hand, many
residential pool systems are regularly turned on and off by homeowners
(usually at night or during the winter months when the pool is rarely
used) in order to save electricity. Indeed, testimony was presented that
the majority of residential pool owners connect their pool filter systems to
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timers that automatically turn the system off at night and back on during
the day.
When the system is turned off and then turned back on, air
that bled into the system while it was off is pushed into the canister by the
flow of water. If the filter grids are clogged, the air may become trapped
within the canister against the clog with nowhere to go. As more air and
water continue to be pumped into the canister under pressure, air
pressure may build up within the canister, creating a condition known in
the industry as a dead-head. If the pressurized air cannot find a way to
escape, the air pressure within the canister grows to dangerous levels as
more air and water are forced into the system. When the air pressure
within the canister exceeds the ability of the metal clamp to hold the
canister together, the canister may explode. 3
To reduce the risk of such explosive dead-heads, the
instruction manual accompanying the FNS filter "recommends" that the
consumer manually bleed excess air from the system each and every time
the system is turned off and on. However, when a pool filter is connected
to a timer that automatically turns the system off at night and on during
the day with no action by the homeowner, the recommendations contained
in the instruction manual cannot be complied with, because an automated
timer system will not manually bleed out air every time the filter is cycled
back on.
3 Some filter canisters are sold as single piece or single tank
canisters that cannot be opened, and the filter grids in those types of
canisters cannot be replaced or removed for cleaning. Based upon
testimony at trial, no explosions of single piece canisters are known to
have occurred.
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The evidence and arguments at trial
Michaels contended that the known risks of explosion
rendered the design of the Nautilus FNS filter inherently unsafe when
used in normal operation. Pentair countered that the explosion in this
case was caused not by any inherent flaw in the design of the system, but
rather by an explosive dead-head created by Michaels himself through
improper and unforeseeable misuse of the FNS canister. Specifically,
Pentair averred that Michaels improperly installed the FNS filter canister
onto an obsolete 27-year-old pool filter system that was never designed for
the FNS canister and contained a device known as a positive shut-off valve
that could be misused in a way that increased the risk of dead-heads and
explosions.
In support of his theory, Michaels presented the testimony of
Dr. John Manning, an expert in mechanical engineering, as well as Dr.
Alison Osinski, an aquatics expert. Both generally testified that the
phenomenon of pool filters exploding under pressure was known in the
industry, that the design of the FNS filter was unsafe, and that safer
alternatives existed, including models sold by Pentair that possessed
automatic external pressure-relief valves and redundant restraints.
Osinski testified that six different companies offered split-shell filter
canisters for sale that had redundant restraints and automatic external
pressure relief valves, and that explosions of split-shell filters having such
safety features were virtually unknown. In contrast, Osinski noted that
more than 50 such explosions were known to have occurred with split-
shell filters sold without such features, many of which had caused serious
trauma and even death to homeowners. The experts noted that Pentair
sold a Sta-Rite System 3 split-shell filter with secondary restraints that
Pentair advertised as "the world's safest and easiest to operate filter." The
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jury saw internal correspondence written by Pentair employees dated May
16, 1993, which recognized the danger of filter separation under pressure
and noted that consumers could be expected to misuse split-shell pool
filters in a way that could increase the risk of explosion.
Testimony from several of Pentair's employees confirmed key
portions of Michaels' allegations. For example, Pentair's chief engineer,
Ron Robol, testified that he believed the design of the FNS filter was safe.
However, he agreed that the phenomenon of explosive dead-heads was
known within the industry, and admitted that at various times Pentair
had sold split-shell filter canisters equipped with automatic external
pressure-relief valves designed to reduce the risk of explosion. He
conceded that when Pentair sold split-shell canisters with automatic
external air relief valves in the past, those valves worked fine. He also
agreed that, between 1998 and 2008, Pentair received no claims of filter
explosions relating to split-shell canisters sold with such automatic valves,
but had received more than 50 reports of explosions in split-shell models
sold without those valves. 4 Robol also admitted that filter canisters were
designed to be cleaned by consumers, and the accidental creation of dead-
heads, either through improper consumer cleaning, or simply because the
system was turned on and off repeatedly, was "foreseeable" to
manufacturers such as Pentair.
4 The parties vigorously dispute the number of prior explosions in
their appellate briefing. Michaels contends that 50 explosions were known
to have occurred in filter canisters of split-shell design similar to the FNS
canister. On the other hand, Pentair argues that only 4 prior explosions
were known to have occurred with the FNS canister itself.
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Similarly, Pentair's product manager of filtration, Robert
Swindell, agreed through his deposition testimony that a consumer's
failure to install the canister properly, to clamp it shut, and to release air
pressure before or during cleaning were all "foreseeable" events. He
acknowledged that Pentair's Sta-Rite 3 filtration system was safer than
the FNS because it was held shut by eight individual clamps rather than a
single clamp. Additionally, Pentair's Vice-President of Engineering,
Garrett Barkitt, conceded at his deposition that Pentair was aware of
claims of pool filter separations with its FNS canister, while Pentair
employee Robert Wilkes admitted that safer alternatives to steel clamps
existed, including a threaded screw-type ring lock system for which no
known instances of explosive filter separation had ever been reported. 5
Pentair's defense focused upon the contention that the FNS
filter canister was safe, partly because the explosion in this case was
caused not by any inherent defect in the design of the FNS filter canister,
but rather by Michaels' own unforeseeable, negligent, and dishonest
actions. Specifically, Pentair contended that Michaels caused the
explosion by dead-heading the system while improperly backwashing it,
and then lied about how the explosion occurred. Pentair suggested that
Michaels improperly grafted the FNS filter canister onto an older filter
system that contained a positive shut-off valve that, when incorrectly
used, would seal the canister and trap air within it, thereby artificially
5 Pentair also proffered lay witness testimony from Russell Cannon,
a plumber who knew of no explosion incidents with the FNS canister filter
during his many years servicing those filters, and from Darren Gagnon, a
pool filter installer, who testified that he had installed the FNS filter for
decades, knew of no explosions, and considered it a safe product.
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creating a dead-head when one otherwise would not have naturally
occurred.
During trial, no witness called by either party affirmatively
testified that Michaels had improperly used the positive shut-off valve to
create an artificial dead-head within the system. Michaels explicitly
denied doing so, and no witness identified any evidence suggesting such
misuse. Instead, Pentair's implication that such misuse may have
occurred rested upon two prongs. First, after the explosion but before
trial, Michaels negligently disposed of parts of his pool filtration system,
including the separation tank, the selector valve attached to the filter, the
shut-off valves, and various pipes and plumbing. During the trial, Pentair
requested, and the district court gave, an instruction that permitted the
jury to make an inference adverse to Michaels based upon the failure to
preserve the filter system for discovery and tria1. 6 Pentair thus argued to
the jury that, had the entire filter system been made available for
inspection, evidence might have been uncovered that indicated Michaels
seriously misused the system while backwashing it.
Second, Pentair made Michaels' credibility a major subject of
the trial. Michaels testified that the canister exploded spontaneously
when he merely turned the pool filter system on while standing a few feet
6 The instruction given by the district court was as follows:
Twelve: Where relevant evidence which would
properly be part of this litigation is within the
control of the plaintiffs whose interest it would be
to produce it, and they failed to do so without a
satisfactory explanation, the jury may draw an
inference that such evidence would have been
unfavorable to the plaintiffs.
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away from the system. However, Pentair introduced photos of objects
lying on the grass near the canister which, Pentair argued, suggested
Michaels was conducting some kind of maintenance on the filter when it
exploded. While this contention was disputed by Michaels, medical
records indicated that Michaels admitted to his physician that he had
been servicing the filter when it exploded. Michaels also testified during
trial that he never cleaned the filter himself during the two years he
owned it, and that he thought the filter was being cleaned by his
maintenance company, Pool Chlor. However, the owner of Pool Chlor
testified that the company only managed the chemical levels in the pool
and never cleaned Michaels' pool filter.
On cross-examination by Pentair, Michaels' experts agreed
that their conclusion that Michaels' injury was caused by the defective
design of the FNS filter was predicated upon Michaels' own description of
how the explosion occurred, and if Michaels was proven to have lied, then
their conclusions may no longer be valid. Pentair also argued that certain
facts proven by Michaels' experts, while true, could be interpreted in
different ways. For example, Pentair's statistical expert, Dr. Laurentius
Marais, testified that while Pentair had received 50 reports of explosions
in filter canisters lacking redundant safety features, those 50 claims must
be considered in the context of the thousands of canisters sold nationally.
Thus, in lieu of evidence affirmatively demonstrating that
Michaels had modified or misused the FNS filter canister in an
unforeseeable way to cause the explosion, Pentair argued that
inconsistencies in Michaels' evidence, coupled with the negligent disposal
of parts of the filter system prior to trial, permitted the jury to infer that
such a modification or misuse had occurred. Consequently, Pentair
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argued to the jury that Michaels failed to meet his burden of
demonstrating by a preponderance of the evidence either that the design
of the FNS filter was unsafe or that any design defect was the proximate
cause of his injury.
ANALYSIS
On appeal, Michaels asserts various errors. However, because
the trial court failed to properly analyze the claims of attorney misconduct
made by Michaels in his post-trial motions under the standard set forth in
Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008), we need only address that
contention.
When the losing party in a civil trial alleges in a post-trial
motion that it is entitled to a new trial because the prevailing party
committed attorney misconduct during the trial, the Nevada Supreme
Court has held that the district court must make detailed findings
regarding the role that the alleged misconduct played at trial and the
effect it likely had on the jury's verdict. Id. at 20, 174 P.3d at 982. See
BMW v. Roth, 127 Nev. 122, 141 n.9, 252 P.3d 649, 661 n.9 (2011)
(appellate consideration of alleged attorney misconduct that was not the
subject of specific district court findings "would be contrary to Lioce's
requirement of specific oral and written findings of misconduct to facilitate
appellate review of orders granting or denying new trials based on
attorney misconduct"). In this case, the district court did not make those
findings. The portion of the district court's written order denying
Michaels' request for relief due to attorney misconduct simply states that
"[fin considering plaintiffs allegations under Lioce v. Cohen. . . this Court
does not find grounds warranting a new trial." The district court's written
order contains no other findings relating to Michaels' claims of attorney
misconduct.
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Ordinarily, we could simply order a limited remand of this
matter so that the district court can make the required findings.
However, in reviewing the precedent of the Nevada Supreme Court, some
of which is quite recent, we take this opportunity to provide guidance to
the district court on the kinds of findings that must be made. Because the
district court did not apply the reasoning of these more recent cases, and
because Lioce itself does not set forth a specific list of what the district
court's findings must include, we remand this matter to the district court
to reconsider its conclusions in view of recent precedent and to make the
findings necessary to support its ultimate decision.
Standard of review
A district court's decision to grant or deny a motion for a new
trial is reviewed for an abuse of discretion.' Lioce, 124 Nev. at 20, 174
P.3d at 982. In determining whether such an abuse of discretion occurred,
'Michaels' district court motion also requested, in the alternative,
judgment as a matter of law on various grounds. While the denial of a
post-judgment motion for judgment as a matter of law is not
independently appealable, see Skender v. Brunsonbuilt Constr. & Dev. Co.,
122 Nev. 1430, 1434 n.4, 148 P.3d 710, 713 n.4 (2006), in this case the
order denying that motion and Michaels' motion for a new trial were
entered prior to the final judgment in the underlying case. As a result, the
order denying Michaels' motion for judgment as a matter of law is an
interlocutory order, which we can review in the context of Michaels' appeal
from the final judgment. See Consol. Generator-Nev., Inc. v. Cummins
Engine Co., 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998) (recognizing
that interlocutory orders entered before final judgment can be reviewed in
an appeal from the final judgment). However, for reasons discussed
herein, we limit the scope of this opinion only to the question of attorney
misconduct. Because attorney misconduct cannot be the basis for entry of
judgment as a matter of law, in this opinion we address only Michaels'
request for a new trial.
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this court must view the evidence and all inferences most favorably to the
party against whom the motion is made. Grosjean v. Imperial Palace, Inc.,
125 Nev. 349, 366, 212 P.3d 1068, 1080 (2009).
An attorney may not "encourage [ the jurors to look beyond
the law and the relevant facts in deciding the case before them." Lioce,
124 Nev. at 6, 174 P.3d at 973. "Under NRCP 59(a)(2), the district court
may grant a new trial if the prevailing party committed misconduct that
affected the aggrieved party's substantial rights." Gunderson v. D.R.
Horton, Inc., 130 Nev. „ 319 P.3d 606, 611 (2014).
In Lioce, the Nevada Supreme Court articulated the applicable
legal standards governing appellate review of a district court's denial of a
motion for a new trial based on alleged attorney misconduct. See Lioce,
124 Nev. at 14-26, 174 P.3d at 978-86. Lioce required the district court to
make post-trial findings on the effect of the misconduct upon the trial, but
did not delineate the kinds of findings that are required. Id. In two recent
cases, Gunderson v. D.R. Horton, Inc., 130 Nev. , 319 P.3d 606 (2014),
and BMW v. Roth, 127 Nev. 122, 252 P.3d 649 (2011), the Nevada
Supreme Court expanded upon its Lioce analysis and further explained
how the district court, and appellate courts, should evaluate claims of
misconduct. The district court in this case did not apply these new cases
when it decided Michaels' motion, and so we take this opportunity to
clarify the standard that must be followed in view of those cases.
Determining whether a new trial is warranted involves the
application of a three-step analysis. First, we must determine whether
misconduct occurred. Gunderson, 130 Nev. at , 319 P.3d at 611.
Whether an attorney's comments constitute misconduct is a question of
law reviewed on appeal de novo. BMW, 127 Nev. at 132, 252 P.3d at 656.
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If such misconduct has occurred, the next step is to determine the proper
legal standard to apply in assessing whether the misconduct warrants a
new trial. Gunderson, 130 Nev. at , 319 P.3d at 611. Finally, we must
determine whether the district court abused its discretion in applying that
standard. Id.
When a party claims misconduct by opposing counsel, the
legal standard under which that misconduct is reviewed depends on
whether a timely trial objection was made. See Lioce, 124 Nev. at 17-19,
174 P.3d at 980-82. When a timely objection was not made at trial, any
review of that misconduct, either post-trial by the trial court or on appeal,
is considerably more circumscribed than if an objection was made. When
resolving a motion for a new trial based on unobjected-to attorney
misconduct, "the district court shall first conclude that the failure to object
is critical and the district court must treat the attorney misconduct issue
as having been waived, unless plain error exists." Id. at 19, 174 P.3d at
982. To decide whether there is plain error, the district court must then
determine "whether the complaining party met its burden of
demonstrating that its case is a rare circumstance in which the attorney
misconduct amounted to irreparable and fundamental error." Id. And
"[lin the context of unobjected-to attorney misconduct, irreparable and
fundamental error is error that results in a substantial impairment of
justice or denial of fundamental rights such that, but for the misconduct,
the verdict would have been different." Id. Thus, in this case, because no
objection was lodged at trial, a new trial would only be warranted if
Pentair committed misconduct and the misconduct amounted to "plain
error."
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Plain error requires a party to show 'that no other reasonable
explanation for the verdict exists." Id. (quoting Ringle v. Bruton, 120 Nev.
82, 96, 86 P.3d 1032, 1041 (2004)) Analyzing whether such plain error
has occurred involves weighing the misconduct against the reasonableness
of the jury's verdict in light of the evidence in the record. Gunderson, 130
Nev. at ,319 P.3d at 614 ("In evaluating [the effect of misconduct on a
verdict], we 'look at the scope, nature, and quantity of misconduct as
indicators of the verdict's reliability" (quoting Grosjean, 125 Nev. at 365,
212 P.3d at 1079)). Moreover, the court must consider the "context" in
which the misconduct occurred. Id.
Necessarily, then, a determination of whether unobjected-to
misconduct has created plain error requires balancing the severity of the
misconduct against the weight of the evidence supporting the jury's
verdict. In doing so, however, we must bear in mind that "credibility
determinations and the weighing of evidence are left to the trier of fact."
See Grosjean, 125 Nev. at 366, 212 P.3d at 1080. Where the record
demonstrates that the jury's verdict is strongly supported by
overwhelming evidence, the verdict can generally be explained by the
evidence itself and even serious misconduct may not warrant a new trial.
On the other hand, where the evidence in the record is insufficient to
reasonably explain the jury's verdict even when viewed in the light most
favorable to the prevailing party, or if it does so only very weakly or
implausibly, then trial misconduct is likely to have resulted in
fundamental error, because in those circumstances the jury's verdict was
more likely to have been a product of the misconduct rather than of a fair
consideration of the evidence presented. Id. at 364, 212 P.3d at 1079
(attorney misconduct warrants new trial in "the rare occasion when the
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attorney misconduct 'offsets the evidence adduced at trial in support of the
verdict" (quoting Lioce, 124 Nev. at 19, 174 P.3d at 982)).
Furthermore, the court must consider the "context" of the
misconduct. Gunderson, 130 Nev. at , 319 P.3d at 614. Misconduct
that was largely collateral to the principal issues in dispute is less likely to
have resulted in plain error than misconduct that touched directly upon
the central questions the jury was asked to resolve. By way of
hypothetical example, Nevada Rule of Professional Conduct (RPC) 3.4(e)
prohibits an attorney from stating "a personal opinion as to. . . the
credibility of a witness." See Lioce, 124 Nev. at 21-22, 174 P.3d at 983("[A]n attorney's statements of personal opinion as to the justness of a
cause, the credibility of a witness, or the culpability of a litigant
is. . . improper in civil cases and may amount to prejudicial misconduct
necessitating a new trial."). When an attorney improperly vouches for the
credibility of an inconsequential witness whose testimony related to a
collateral issue and whose credibility was never attacked by the opposing
party, such misconduct likely played a lesser role in the jury's verdict than
if the attorney vouched for a witness whose credibility was directly
challenged and whose truthfulness regarding a key issue was the principal
or sole question for the jury's consideration. Similarly, vouching for the
credibility of a witness whose testimony was largely cumulative to other
evidence or irrelevant to the main issues in genuine dispute is less likely,
in context, to warrant a new trial than if the witness' testimony were the
only evidence supporting a key contention.
Finally, the frequency of the misconduct must be considered.
A single, isolated instance of misconduct is likely to have had a lesser
impact on the trial than repeated or persistent instances of misconduct.
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See Gunderson, 130 Nev. at , 319 P.3d at 612 ("[T]he district court must
take into account that, by engaging in continued misconduct, the offending
attorney has accepted the risk that the jury will be influenced by his
misconduct. . .. although specific instances of misconduct alone might
have been curable by objection and admonishment, the effect of persistent
or repeated misconduct might be incurable." (internal quotation omitted)).
Thus, determining whether "plain error" has occurred as a
result of unobjected-to misconduct requires the court to closely examine
the record, weigh the severity and persistence of the misconduct against
the evidence presented, and assess what role, if any, the misconduct likely
played in the jury's verdict. See BMW, 127 Nev. at 133, 252 P.3d at 656-
57.
Overview of products liability law
Because alleged attorney misconduct must be evaluated in
"context," a brief examination of the substantive law that governed the
trial is necessary. On appeal, the only claim remaining before us is the
products liability claim, which is a strict liability claim. In Nevada, a
manufacturer or distributor of a product is strictly liable for injuries
resulting from a defect in the product that was present when the product
left its hands. Allison v. Merck Sr Co., Inc., 110 Nev. 762, 767, 878 P.2d
948, 952 (1994). "[P]roducts are defective which are dangerous because
they fail to perform in the manner reasonably to be expected in light of
their nature and intended function." Ginnis v. Mapes Hotel Corp., 86 Nev.
408, 413, 470 P.2d 135, 138 (1970) (internal quotations omitted).
"Reasonableness" may be determined with reference to such things as
whether a safer design was possible or feasible, whether safer alternatives
are commercially available, and other factors. See McCourt v. J.C. Penney
Co., Inc., 103 Nev. 101, 104, 734 P.2d 696, 698 (1987) (stating that
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"[allternative design is one factor for the jury to consider when evaluating
whether a product is unreasonably dangerous").
Furthermore, manufacturers are not necessarily liable for
injuries caused by a product that was substantially modified or misused by
the consumer or by an intermediary. "Generally, a substantial alteration
will shield a manufacturer from liability for injury that results from that
alteration," but a product manufacturer remains liable if the alteration
was insubstantial, foreseeable, or did not actually cause the injury. 8
Robinson v. G.G.C., Inc., 107 Nev. 135, 140, 808 P.2d 522,525 (1991).
When the risk of danger associated with a product is such that
it cannot be corrected or mitigated by a commercially feasible change in
the product's design available at the time the product was placed in the
stream of commerce, the manufacturer must give adequate warningS to
consumers of the potential danger. See id. at 138, 808 P.2d at 524. Where
a plaintiff alleges that such warnings were not adequately given, the
"plaintiff carries the burden of proving, in part, that the inadequate
warning caused his injuries." Rivera v. Phillip Morris, Inc., 125 Nev. 185,
190, 209 P.3d 271, 274 (2009).
8 Because products liability claims allege strict liability, comparative
negligence is not a defense to a prima facie case of such liability. Maduike
v. Agency Rent-a-Car, 114 Nev. 1, 7, 953 P.2d 24, 27 (1998)
("[Clomparative negligence reductions do not apply when the claim is
based on strict liability."). Comparative fault is, however, a defense to a
negligence claim. Thus, even though the only claim on appeal before us is
the strict liability cause of action, evidence of comparative fault was
admitted and argued at trial in connection with Michaels' negligence
claim.
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Michaels' assertions of attorney misconduct
Michaels argues that, during closing argument, Pentair's
counsel made various impermissible statements that were not based in
evidence or that reflected the personal opinion of counsel. Michaels'
counsel did not timely object to any of the statements now cited as error on
appeal.
In Lioce, the Nevada Supreme Court directed district courts
confronted with post-trial motions alleging attorney misconduct as follows:
[We now require that, when deciding a motion for
a new trial, the district court must make specific
findings, both on the record during oral
proceedings and in its order, with regard to its
application of the standards described above to the
facts of the cases before it. In doing so, the court
enables our review of its exercise of discretion in
denying or granting a motion for a new trial.
124 Nev. at 19-20, 174 P.3d at 982. See also BMW, 127 Nev. at 141 n.9,
252 P.3d at 661 n.9.
Conceivably, in some cases in which a district court fails to
make requisite findings in support of a decision, that decision may
nonetheless be affirmed on appeal if the record as a whole demonstrates
that the ultimate conclusion was correct even if the reasons for it are not
clearly articulated. For example, if the most cursory review of the briefs
or the record clearly demonstrates that no misconduct occurred as a
matter of law, then a remand for the district court to simply state the
obvious would seem wasteful and unnecessary. During oral argument,
Pentair's counsel suggested that a remand in this case was unnecessary
for precisely this reason. Had our review of the record in this case clearly
indicated either that no misconduct occurred, or that any attorney
misconduct that occurred could not possibly have affected the jury's
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verdict, then we could perhaps resolve this appeal based upon the record
alone without the need for additional findings by the district court.
In this case, however, the record reveals that Pentair's
attorney made a variety of statements during closing argument that could
plausibly constitute the kind of attorney misconduct that concerned the
Nevada Supreme Court in Lioce. 9 For example, Pentair's counsel
appeared to vouch for a witness, Dr. Casey (Michaels' treating physician
who contradicted Michaels' version of events), by stating that "I think he
is a credible and honest witness." Counsel also appeared to offer opinions
about other witnesses, including witnesses from Pool Chlor, stating "I
don't know about you, but I know what I thought about those people's
testimony.'qo By offering personal opinions about the credibility of
°In Lioce, the Nevada Supreme Court conducted a detailed analysis
of the scope and severity of the alleged misconduct before concluding that
a remand for additional findings was necessary; indeed, the supreme court
went so far as to conclude that misconduct occurred as a matter of law
before remanding. 124 Nev. at 20-25, 174 P.3d at 982-85. In this opinion,
we are not required to go that far.
ImCounsel's closing argument contains other injections of personal
opinion, such as: "Why is Mr. Michaels ... saying that he is looking away
from the plate? Why is he saying that?. . . I'll give you what I think the
answer is."; "I don't think that is the physical evidence. I don't think the
physical evidence supports that"; "I have an explanation for you—for your
consideration as to what I think is consistent with the physical evidence in
this case. I think the lid did separate up. . . . I think what was happening
was Mr. Michaels just cleaned and back washed and cleaned the filter that
day.. . . So I think that what happened is he cleaned it"; "I don't think
Sunrise Hospital Medical Center is going to do that"; "I really think we all
know what really happened." Counsel even proffered his own personal
medical diagnosis of the severity of Michaels' injuries and how they were
incurred, arguing that "if he fell straight down on concrete, you think his
head would be swollen. I do."
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witnesses, Pentair's counsel may have violated RPC 3.4(e), which states
that, during the course of a trial, an attorney shall not state "a personal
opinion as to. . . the credibility of a witness." See Lioce, 124 Nev. at 21-22,
174 P.3d at 983 ("[A]n attorney's statements of personal opinion as to the
justness of a cause, the credibility of a witness, or the culpability of a
litigant is .. . improper in civil cases and may amount to prejudicial
misconduct necessitating a new trial."). The district court's written order
fails to indicate whether the court fully considered these arguments,
whether it concluded that they did not constitute misconduct, or whether
it instead concluded that they represented misconduct but that no
fundamental error occurred."
Another instance of potential misconduct appeared to occur in
relation to the adverse inference jury instruction given by the trial court.
An adverse inference instruction may be given when a district court
concludes that particular evidence was negligently destroyed. Franchise
Tax Bd. of Cal. v. Hyatt, 130 Nev. , 335 P.3d 125, 152 (2014), cert.
"We note that this was a two-week jury trial and the trial transcript
appears not to have been available to the district court when it considered
Michaels' motion, and therefore we acknowledge that it may well be easier
for us to scour the record and locate these statements now than it was for
the district court when the motion was first presented. We also note that
official transcripts of the trial may not be available when a district court is
confronted with post-trial motions alleging attorney misconduct, because
the deadline for filing a motion for new trial expires ten days after entry of
judgment, NRCP 59, and in longer trials the full transcript may not be
available until well after that time period has elapsed. Thus, in many
cases it may be difficult for the parties to fully cite to specific instances of
misconduct in their post-trial briefing and for the district court to make
precise findings, especially when the precise wording of an attorney's
argument is disputed.
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granted in part, 576 U.S. , 135 S. Ct. 2940 (2015). The adverse
inference instruction "merely allows the fact-finder to determine, based on
other evidence, that a fact exists." Id. The adverse inference instruction
in this case (jury instruction number 12) was given by the court as a
sanction for very specific conduct, namely, Michaels' negligent disposal of
pieces of the filter system before trial. But during closing argument,
Pentair's counsel appeared to invite the jury to apply this instruction to
other evidence that had no relation either to the discovery violation, the
district court's sanction, or the purpose of the instruction given by the
court. Specifically, Pentair's counsel argued that the adverse inference
instruction applied to a plumbing expert that Michaels purportedly
retained. Counsel argued:
There is another expert they didn't bring in, where
you could think that maybe that expert wasn't
going to say good things. Who did the plaintiffs
call, the plaintiffs lawyer, right after the accident
to come and take [pictures]. I don't remember the
gentleman's name, but he was a plumbing expert.
That much I remember. Remember Mr. Kesky. I
played his deposition. . . . He said [that he]
discussed the plumbing issues with the expert.
But did the plaintiffs bring him in here. . . . Is
there a reason for that. I remind you of the
instruction, where the plaintiffs have the evidence,
because they are the only ones in control of that
expert, he was the one that has his investigator
there, not us, Pentair had no chance at any of this,
you take it against [Michaels].
However, the record does not appear to indicate that any such plumbing
expert was ever retained by Michaels; the district court did not make any
findings on this question. Furthermore, even if a plumbing expert had
been retained, counsel's invitation for the jury to apply the adverse
inference instruction to Michaels' failure to call that witness is
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problematic because the adverse inference instruction was not given as a
sanction for that conduct. 12
Consequently, we cannot conclude from the record that
attorney misconduct was so clearly absent from the trial that additional
findings by the district court would be superfluous and unnecessary.' 3 We
also cannot conclude that the instances of potential misconduct that
appear in the record were necessarily so minor or irrelevant that they
must be found by the district court to have played no role whatsoever in
the jury's verdict. In this case, the jury found in favor of Pentair, but the
evidence supporting that verdict was far from overwhelming or clear.
Several of Pentair's witnesses conceded the essential points that Pentair
knew of prior explosions occurring in split-shell filters and that safer
alternatives to such filter designs were commercially feasible. Similarly,
12According to the deposition testimony of Terry Keskey, a plumbing
company visited Michaels' home shortly after the explosion. But under
Nevada law, merely consulting a plumber in the wake of a pool explosion
does not equate to retaining an expert who must, or is even qualified to,
testify at trial. See Higgs v. State, 126 Nev. 1, 16, 222 P.3d 648, 658 (2010)
("NRS 50.275 is the blueprint for the admissibility of expert witness
testimony" and a witness is not permitted to be qualified as an expert
unless certain specific legal requirements have been satisfied).
'3 We emphasize that, by including these observations, we do not
conclude that the arguments cited here necessarily represented reversible
misconduct; the district court must make the necessary findings on
remand before they can be considered by us on appeal. Conversely, we
also do not intend to suggest that any instances of alleged misconduct
cited by Michaels but omitted from our discussion could not have
constituted misconduct. Rather, we include these particular instances
merely as illustrations in response to Pentair's contention that a remand
is unnecessary because the district court could not possibly have concluded
that reversible misconduct occurred at any point in the trial.
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Pentair did not present any substantive evidence that Michaels
unforeseeably misused or modified the FNS filter in any way. 14 Rather, in
the absence of substantive evidence, Pentair invited the jury to infer that
such unforeseeable modifications might have happened because some
pieces of thefl filter system were missing and because the testimony of
Michaels' witnesses was supposedly not credible. Thus, at least some of
the apparent misconduct in this case related to the heart of Pentair's
defense strategy and to the most important questions the jury was asked
to answer. Under these circumstances, we cannot conclude that the
alleged misconduct related only to matters of no consequence and could
not possibly have resulted in fundamental injustice. Thus, in this case,
the record indicates that misconduct could be deemed to have occurred,
and that the evidence supporting the products liability verdict was weak.
However, in the absence of detailed findings, we cannot determine
whether no other reasonable explanation exists for the verdict but the
alleged misconduct.
In this case, had the district court engaged in a comprehensive
analysis, it could have concluded that misconduct occurred and that the
misconduct was both severe and repeated. See Gunderson, 130 Nev. at
NA number of Pentair's employees and engineers conceded that
accidental dead-heads during cleaning were foreseeable. Thus, even if it
were true that Michaels had caused such a dead-head to occur while
cleaning the filter canister, as Pentair's counsel suggested during his
closing argument, such a conclusion may have been legally irrelevant to
the question of whether the FNS filter was improperly designed.
Comparative negligence is not a defense to strict liability, and therefore
even if Michaels had improperly dead-headed the system while cleaning it,
Pentair may still be liable for manufacturing a dangerous product so long
as dead-heading was a foreseeable event.
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, 319 P.3d at 612. Furthermore, when viewed in context, the district
court could have concluded that the misconduct played a critical role in
the case. See id. at , 319 P.3d at 614 (instances of misconduct must be
evaluated "as determined by their context"); see also Grosjean v. Imperial
Palace, Inc., 125 Nev. 349, 364, 212 P.3d 1068, 1079 (2009).
Accordingly, the record in this case is not so clear that detailed
findings by the district court are clearly unnecessary. Furthermore, the
district court's failure to engage in the exercise of making specific and
detailed findings particularly matters when the district court acted
without considering the Nevada Supreme Court's reasoning in BMW and
without the benefit of Gunclerson.1-5 Had such detailed findings been
made, we could more easily determine •whether those new cases would
have affected the district court's analysis. Therefore, we must remand
this matter to the district court for additional findings and further direct
the district court to reconsider its conclusion in view of these cases and the
standard set forth in this opinion. 16
On remand, the district court must clarify, at a minimum,
whether it found that no misconduct occurred or rather whether it
concluded that misconduct did occur but was harmless under the
16 The district court also did not have the benefit of the Nevada
Supreme Court's recent decision in Franchise Tax Board of California v.
Hyatt, 130 Nev. at , 335 P.3d at 152, cert. granted in part, 576 U.S. ,
135 S. Ct. 2940 (2015), which clarified the law relating to adverse
inference instructions resulting from lost evidence.
16 The only issue presented to us in this appeal concerned the
products liability claim, and therefore this remand is limited only to that
claim. Because Michaels did not present argument on the other claims for
relief adjudicated below, we do not disturb those portions of the verdict,
and the district court need not address those claims on remand.
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standards of Lioce in view of: (1) the nature of the claims and defenses
asserted by the parties; (2) the relative strength of the evidence presented
by the parties; (3) the facts and evidence that were either disputed or not
substantively disputed during the trial; (4) the type, severity, and scope of
any attorney misconduct; (5) whether any misconduct was isolated and
incidental on the one hand or repeated and persistent on the other; (6) the
context in which any misconduct occurred; (7) the relationship of any
misconduct to the parties' evidence and arguments; and (8) any other
relevant considerations.
In reviewing these factors, the district court's ultimate goal is
to assess whether any misconduct "offsets the evidence adduced at trial"
such that "no other reasonable explanation for the verdict" exists but that
it was the product of the misconduct. See Grosjean, 125 Nev. at 363, 212
P.3d at 1079 (internal quotations omitted). In doing so, the district court
must "assume that the jury believed all of the evidence favorable to" the
party against whom the motion is made. Id. at 366, 212 P.3d at 1080.
Nevertheless, when serious and repeated attorney misconduct has
demonstrably occurred, the district court's deference to the jury is more
limited than if such misconduct had not occurred, and the trial court must
carefully consider whether the misconduct led the jury astray and caused
it to base its verdict upon something other than the evidence and the
applicable law.
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CONCLUSION
For the foregoing reasons, we vacate the district court's denial
of Michaels' motion for new trial and remand this matter to the district
court for further proceedings consistent with this opinion.
J.
Tao
I concur:
, C.J.
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SILVER, J., concurring:
I concur in the result only. In my view, the majority decision
prematurely highlights portions of the alleged misconduct during closing
argument and unnecessarily comments on the strength of the evidence
presented at trial. Yet, the majority also acknowledges that the district
court seemingly did not have the benefit of transcripts when it considered
the new trial motion due to the timing involved in such post-trial motions,
and that it did not have the benefit of authority and guidance from the
supreme court's decision in Gunderson v. D.R. Horton, Inc., 130 Nev. ,
319 P.3d 606 (2014). The majority further notes that, in denying the new
trial motion, the district court did not consider the supreme court's
reasoning in BMW v. Roth, 127 Nev. 122, 252 P.3d 649 (2011). No further
instruction or analysis is required for this court to resolve this appeal.
Therefore, a limited remand in this matter directing the district court to
make detailed findings regarding specific instances of alleged misconduct
would have sufficed. Respectfully, I concur with only the result reached by
the majority.
1/41,:eae.3 , J.
Silver
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