Rish v. Simao , 2016 NV 17 ( 2016 )

132 Nev,, Advance Opinion (1
IN THE SUPREME COURT OF THE STATE OF NEVADA
JENNY RISH, No. 58504
Appellant,
vs.
WILLIAM JAY SIMAO AND CHERYL
FILED
ANN SIMAO, INDIVIDUALLY AND AS MAR 1 7 2016
HUSBAND AND WIFE,
Respondents. al
T < F‘IU AVEM
BCYLEF!.1. R
CHIEF DEPLOHCLERK-
JENNY RISH, No. 59208
Appellant,
vs.
WILLIAM JAY SIMAO AND CHERYL
ANN SIMAO, INDIVIDUALLY AND AS
HUSBAND AND WIFE,
Respondents.
JENNY RISH, No. 59423
Appellant,
vs.
WILLIAM JAY SIMAO AND CHERYL
ANN SIMAO, INDIVIDUALLY AND AS
HUSBAND AND WIFE,
Respondents.
Consolidated appeals from a district court judgment in a tort
action and from post-judgment orders denying a new trial and awarding
attorney fees. Eighth Judicial District Court, Clark County; Jessie
Elizabeth Walsh, Judge.
Reversed, vacated, and remanded.
Lewis Roca Rothgerber Christie, LLP, and Daniel F. Polsenberg and Joel
D. Henriod, Las Vegas; Rogers, Mastrangelo, Carvalho & Mitchell, Ltd.,
and Stephen H. Rogers, Las Vegas,
for Appellant.
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David T. Wall, Las Vegas; Eglet Prince and Robert T. Eglet and Robert M.
Adams, Las Vegas,
for Respondents.
BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.
OPINION
By the Court, HARDESTY, J.:
Respondents William Jay Simao and Cheryl Ann Simao
(Simao) filed a motion in limine to preclude appellant Jenny Rish from
presenting a low-impact defense in a personal injury case arising out of an
automobile accident. Simao claimed our holding in Hallmark v. Eldridge,
124 Nev. 492, 500-02, 189 P.3d 646, 651-53 (2008), required the exclusion
of low-impact evidence because Rish failed to retain a biomechanical
expert to opine on the nature of the accident. In Hallmark, we held that a
biomechanical engineer's testimony regarding whether the forces involved
in a car accident could have caused the plaintiffs injury was without
sufficient foundation to be admissible under NRS 50.275. 124 Nev. at 500-
02, 189 P.3d at 651-53. Because Hallmark held that a biomechanical
expert's testimony must have sufficient foundation to be admissible under
NRS 50.275, not that a biomechanical expert's testimony must underlie all
evidence of the alleged injury-causing accident, we conclude that the
district court's order granting the motion in limine was in error as a
matter of law.
Following eight alleged violations of the district court's
pretrial order prohibiting a low-impact defense and violations of two
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additional pretrial orders, the district court struck Rish's answer as a
sanction. Because the case-ending sanction order failed to satisfy the
requirements of BMW v. Roth, 127 Nev. 122, 126, 252 P.3d 649, 652
(2011), we reverse and remand this matter for a new trial.
FACTS AND PROCEDURAL HISTORY
Rish and William Simao were involved in a car accident in
which Rish rear-ended William Simao in stop-and-go traffic. The damage
to the vehicles was not extensive. While an ambulance was called, both
Rish and William Simao refused medical treatment at the scene. William
Simao later alleged that the accident injured his head and neck, causing
him constant pain and requiring on-going medical treatment and
procedures. Simao brought suit against Rish to recover damages for
William's injuries and Cheryl's loss of consortium.
Before trial, Simao filed a motion in limine asking the district
court to preclude Rish, her attorneys, her medical expert, Dr. David Fish,
and her witnesses from testifying, arguing, or insinuating that the
collision was too insignificant to have caused William Simao's injuries.
Citing to Hallmark, 124 Nev. at 496-97, 189 P.3d at 649, Choat v.
McDorman, 86 Nev. 332, 335, 468 P.2d 354, 356 (1970), and Levine v.
Remolif, 80 Nev. 168, 171-72, 390 P.2d 718, 719-20 (1964), Simao asserted
that any argument or evidence of a low-impact accident should be barred
because Rish had not retained a biomechanical engineer who could first
testify that the forces imparted by the collision were too insignificant to
cause the injury. On this basis, Simao also argued that photographs of the
vehicles and repair invoices should likewise be excluded as irrelevant
because, without supporting expert testimony, there was no reliable
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correlation between the extent of damage and the extent of injury, citing
Hallmark, NRS 50.275, and Davis v. Maute, 770 A.2d 36, 40 (Del. 2001).
Rish opposed the motion, arguing that physicians have always
been permitted to consider the severity of the accident when formulating
opinions and to opine on whether the force could have caused the injury.
She further argued that none of the cases relied upon by Simao prohibit
the defense from describing the accident as low impact, and that evidence
of property damage was relevant, admissible, and not substantially
prejudicial.
At the motion hearing, the district court found the extent of
property damage to be relevant but nevertheless granted Simao's motion
in its entirety because, "pursuant to the Hallmark case," Rish did not have
"a witness who can lay the proper foundation" for Rish to advance a low-
impact defense. Finding the result was required by Hallmark, the district
court granted Simao's requests to prohibit Rish "from Raising a 'Minor' or
tow Impact' Defense," and to prohibit Dr. Fish and other experts from
"opin[ing] regarding biomechanics or the nature of the impact of the
subject crash." The court further prohibited photographs of the parties'
cars and property damage invoices.
Before and during the trial, Rish's trial counsel sought
clarification of the district court's order in limine, voicing concerns that
the order prevented the defense from offering any testimony showing the
nature of the accident. The district court, stating that its order was clear,
declined to clarify the order. During the trial, the court sustained eight
objections by Simao to Rish's questions and evidence as violating the low-
impact defense pretrial order.
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During opening statements, and without objection from
Simao, Rish's trial counsel described the accident by saying that Rish "was
stopped behind [William Simao], who moved a few feet in front of her.
[Rish] applied her brakes, only just not quite hard enough; and the
accident follow [ed]." Rish's trial counsel also stated that no one in the
accident claimed loss of consciousness, everyone refused help from the
paramedics, and Rish drove away from the scene. Rish's trial counsel then
attempted to play a portion of Rish's videotaped deposition. Simao
objected. The district court's order indicated that the objection was
sustained on hearsay grounds and because it contained testimony
concerning "the nature of the accident."
Rish's trial counsel cross-examined three of Simao's physician
experts. During cross-examination of the first doctor, Rish's trial counsel
asked if he "kn[ew] anything about what happened to Jenny Rish and her
passengers in this accident." Simao objected on relevancy grounds and
referenced the low-impact defense pretrial order. The district court
sustained the objection without comment from Rish.
Rish's trial counsel asked the second doctor if he "kn[e]w
anything about the folks in Jenny Rish's car." Simao objected on
relevancy grounds. A bench conference was held where Rish's trial
counsel asked if the irrelevancy of his question had been addressed in a
previous order. Simao briefly referenced the low-impact defense pretrial
order, and the district court sustained the objection.
Finally, Rish's trial counsel asked the third doctor: "bdou
know [William Simao] wasn't transported by ambulance?" After the
doctor replied in the affirmative, Rish asked: "You know that Jenny
Rish . . . was lifted from the scene." Simao objected and asked that Rish's
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trial counsel be admonished for disregarding the low-impact defense
pretrial order. The objection was sustained, and the jury was told to
disregard the question. Simao later sought to make a record, outside the
presence of the jury, as to Rish's trial counsel's violation. The district
court indicated that it would consider a progressive sanction and
suggested that Rish's trial counsel reread the order.
During Simao's cross-examination of Dr. Fish, Dr. Fish
attempted to distinguish a case where he had causally related a patient's
injury to her accident by stating, "Well, in this very significant accident,
yes." Simao moved to strike most of the doctor's response, and the court
instructed the jury to disregard all but the word "yes." On redirect of Dr.
Fish, Rish's trial counsel asked how he reached the opinion that the
accident did not cause William Simao's injuries. Dr. Fish stated that it
was "based on multiple factors. It's based on the actual—looking at the
images of the MRI. . It's looking at the notes that were taken of the
events that happened and it's knowing about the accident itself." Simao
objected and moved to strike, and the district court told the jury to
disregard Dr. Fish's last phrase. Another exchange followed outside the
presence of the jury, and Simao asked the court to give a presumption
instruction to the jury as a sanction. The court ultimately instructed the
jury that "there is an irrebuttable presumption that the motor vehicle
accident of April 15, 2005 was sufficient to cause the type of injuries
sustained by the Plaintiff. Whether it proximately caused those injuries
remains a question for the jury to determine."
Finally, during cross-examination of William Simao, Rish's
trial counsel asked if the traffic was stop-and-go. Simao asked for a bench
conference, and the district court precluded the question because it
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improperly suggested that the impact was minor Rish's trial counsel then
asked William Simao whether the paramedics had transported anyone
from Rish's car. Simao objected, asked for a bench conference, and moved
to strike Rish's answer. The district court granted the motion, entered a
default judgment against Rish, and dismissed the jury.
Thereafter, the district court held a prove-up hearing, at
which it limited each party to a short argument regarding damages and
awarded William Simao $194,390.96 for past medical expenses;
$1,378,209 for past pain, suffering, and loss of enjoyment of life; and
$1,140,552 for future pain, suffering, and loss of enjoyment of life. It also
awarded $681,286 to Cheryl Simao for loss of consortium and attorney fees
in the amount of $1,078,125. In all, the awards against Rish totaled
nearly $4.5 million.' This appeal followed.
DISCUSSION
On appeal, Rish primarily challenges the validity of the
district court's final sanction of striking her answer and entering a default
judgment against her. The threshold question is whether the pretrial
order precluding the testimony and evidence of a low-impact defense was
erroneous as a matter of law. We hold that it was. We also hold that the
district court erred by striking Rish's answer, and we reverse the district
court's judgment and order a new trial.
'Because we are reversing this matter for a new trial, we do not
address the procedure used by the district court to determine damages
pursuant to Foster v. Dingwall, 126 Nev. 56, 68, 227 P.3d 1042, 1050
(2010) ("[T]he nonoffending party[ has an] obligation to present sufficient
evidence to establish a prima facie case, which includes substantial
evidence that the damages sought are consistent with the claims for which
the nonoffending party seeks compensation.").
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The district court erred in extending Hallmark to preclude all argument of
a low-impact defense
Trial courts have broad discretion in determining whether to
admit evidence and may exclude relevant evidence that is substantially
more unfairly prejudicial than probative. NRS 48.035(1); S. Pac. Transp.
Co. v. Fitzgerald, 94 Nev. 241, 243, 577 P.2d 1234, 1235 (1978). When the
district court abuses its discretion in determining whether to admit or
exclude evidence, this court will overturn the district court's
determination. Land Res. Dev. v. Kaiser Aetna, 100 Nev. 29, 34, 676 P.2d
235, 238 (1984).
During the proceedings below, Simao argued that Hallmark
precludes all testimony, evidence, argument, and insinuation of a low-
impact defense unless the party offering it first provides a foundation for
this defense through expert testimony from a qualified biomechanical
engineer. The district court agreed and imputed the reasoning from
Hallmark to bar any evidence of a minor or low-impact defense.
We held in Hallmark that the district court abused its
discretion in allowing an expert witness, who was both a physician and
mechanical engineer, to testify that an accident was too low impact to
have caused the plaintiffs injuries. 124 Nev. at 502, 189 P.3d at 652.
Although we determined that the witness was qualified to testify as an
expert, we concluded that the expert did not have an adequate factual or
scientific basis for his opinions regarding the nature of the accident after
he acknowledged that he failed to review critical information when he
formed his opinion. Id. at 497, 504, 189 P.3d at 649, 654. Rather, the
expert's opinion was based more on supposition than science and did not
qualify as admissible expert testimony under NRS 50.275 because
biomechanics was not a recognized field of expertise, the testimony had
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not been and could not be tested, and the expert's theories and methods
had not been subjected to peer review. Id. at 500-02, 189 P.3d at 651-53.
While noting that biomechanical testimony was not necessarily precluded
in every case, we determined that the expert's testimony in that case was
without a sufficient foundation to be admitted. Id. at 504, 189 P.3d at 654.
Thus, Hallmark focused specifically on the admissibility of expert
testimony.
Nothing in Hallmark mandates that supporting testimony
from a certified biomechanical engineer or other expert must be offered
before a defendant will be allowed to present a low-impact defense. 2
Rather, Hallmark stands for the well-established proposition that expert
testimony, biomechanical or otherwise, must have a sufficient foundation
before it may be admitted into evidence. Id. at 503-04, 189 P.3d at 653-54;
see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993);
City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir.), cert.
denied U .S. , 135 S. Ct. 870(2014); Howard Entm't, Inc. v. Kudrow,
146 Cal. Rptr. 3d 154, 170 (Ct. App. 2012). In the absence of a specific
issue concerning the speed or the nature of the impact, mandating
2 Inarguing below that a low-impact defense requires supporting
testimony from a qualified biomechanical engineer, Simao also cited to
Choat v. McDorman, 86 Nev. 332, 335, 468 P.2d 354, 356 (1970), and
Levine v. Remolif, 80 Nev. 168, 171-72, 390 P.2d 718, 719-20 (1964).
Neither of those cases creates such a rule. Rather, in both of those cases,
we held that an expert may not testify to the specific speed of the vehicles
at the time of a collision absent a sufficient foundation for that
determination. Choat, 86 Nev. at 335, 468 P.2d at 356; Levine, 80 Nev. at
171-72, 390 P.2d at 719-20. Moreover, as neither case addressed whether
medical doctors may opine on injury causation, they are inapplicable to
the issue before this court.
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supporting expert testimony as a prerequisite to advancing a general low-
impact defense would effectively and impermissibly deprive juries of
hearing any testimony regarding the nature and circumstances of the
accident and any resulting injuries unless an expert first describes the
accident to the jury. 3 See Banks v. Sunrise Hosp., 120 Nev. 822, 838, 102
P.3d 52, 63 (2004) (noting that it is for the jury to determine the credibility
of and the weight to be given to testimony where evidence presented on a
material point may be conflicting or facts could support differing
inferences). Nothing in Hallmark mandates such a requirement, and we
have previously determined that causation issues, including the
circumstances and severity of an accident and whether it proximately
caused the alleged injuries, are factual issues that are proper for a jury to
weigh and determine. See Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d
258, 260 (1981) (holding that whether a collision proximately caused
respondent's injuries were factual issues for the jury to resolve); Fox v.
Cusick, 91 Nev. 218, 221, 533 P.2d 466, 468 (1975) (concluding that it is
"for the jury to weigh the evidence and assess the credibility" of the
witnesses); Barreth v. Reno Bus Lines, Inc., 77 Nev. 196, 198, 360 P.2d
1037, 1038 (1961) (the jury decides questions of proximate cause). The
district court therefore abused its discretion in prohibiting Rish from
presenting or eliciting any evidence and testimony regarding the nature
and circumstances of the accident, as well as the injuries suffered by Rish
and her passengers. See AA Primo Builders, LLC v. Washington, 126 Nev.
3 Generally, once a plaintiff presents testimony regarding the nature
of the impact in a vehicle collision case, the defense may present evidence
to rebut the plaintiff's assertions. See Provence v. Cunningham, 95 Nev. 4,
7-8, 588 P.2d 1020, 1021-22 (1979).
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578, 589, 245 P.3d 1190, 1197 (2010) ("While review for abuse of discretion
is ordinarily deferential, deference is not owed to legal error."); see also
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) ("A district
court would necessarily abuse its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the
evidence."), superseded by rule on other grounds, Fed. R. Civ. P. 11.
As to whether a medical doctor may relate the nature and
severity of the impact to the injuries, we note that courts in other
jurisdictions have allowed such testimony. See, e.g., Mattek v. White, 695
So. 2d 942, 943 (Fla. Dist. Ct. App. 1997) (holding that defendant's expert
in accident reconstruction and biomechanical engineering, who was not a
medical doctor, was not qualified to opine on the extent of plaintiffs
injury); Santos v. Nicolos, 879 N.Y.S.2d 701, 704 (Sup. Ct. 2009)
(explaining that biomechanical engineer was not qualified to testify about
the causal relationship between an accident and the injuries of the
plaintiff because he was not a medical doctor); Streight v. Conroy, 566 P.2d
1198, 1200 (Or. 1977) (refusing to assign error where the trial court
allowed expert medical witnesses to testify as to whether the impact could
have caused plaintiffs wife's back problems after viewing photographs of
the accident because the jury could review the evidence and "give such
weight to the experts' testimony as they saw fit"); Wilson v. Rivers, 593
S.E.2d 603, 605 (S.C. 2004) (stating that medical doctor "was qualified to
render an opinion on the forces created by an impact and on the general
effects on the human body caused by such forces and,. . . an opinion
regarding the cause of respondent's particular medical problems"); John v.
Im, 559 S.E.2d 694, 697 (Va. 2002) ("[S]ince [the expert] was not a medical
doctor, he was not qualified to state an expert medical opinion regarding
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the cause of [the] injury."). And in Hallmark, this court suggested that
had the defense expert, who was also a medical doctor, physically
examined the plaintiff or reviewed her medical history, the defense may
have been able to lay a proper foundation to allow the expert to testify as
to causation. 124 Nev. at 504, 189 P.3d at 654.
Based on this analysis, we conclude that a medical doctor may
offer an opinion regarding causation so long as there is a sufficient
foundation for the conclusion. We do not intend by this opinion to suggest
that low-impact collisions cannot result in serious injuries. Low-impact
collisions can cause serious, as well as minor, injuries, but, as noted above,
the nature of the impact is a factor for the trier of fact to consider in
determining the causation of the injuries that form the basis of the claim.
In this case, Dr. Fish examined William Simao's medical records, the MRI
images, and photographs of the damage to the parties' vehicles, and
therefore had a sufficient basis to offer an opinion on whether the accident
caused William Simao's injuries. 4
4 The district court also excluded from evidence all photographs of
the vehicles and invoices for the repair work on the basis that such
evidence was substantially prejudicial and that Hallmark required
supporting testimony from a biomechanical engineer in order to be
admissible. During arguments, Fish withdrew any objection to the district
court's ruling, and therefore, we do not decide whether the district court
erred in either applying Hallmark to bar the admission of the photographs
and invoices. However, we note that other jurisdictions generally admit
such evidence because, even in the absence of supporting expert
testimony, there is a common-sense correlation between the nature of the
impact and the severity of the injuries, and a plaintiff may overcome any
prejudicial effect by offering contradicting testimony, cross-examining the
witnesses, and utilizing other mechanisms to prove his or her case. See
Johnson v. McRee, 152 P.2d 526, 527-28 (Cal. Ct. App. 1944); Martin v.
Miqueu, 98 P.2d 816, 818 (Cal. Ct. App. 194W; Hayes v. Sutton, 190 A.2d
continued on next page...
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The district court erred in striking the answer
We now turn to the validity of the sanction, which we review
under a somewhat heightened standard of review. See Foster v. Dingwall,
126 Nev. 56, 65, 227 P.3d 1042, 1048 (2010) ("[A] somewhat heightened
standard of review applies where the sanction strikes the pleadings,
resulting in dismissal with prejudice."). A party is required to follow court
orders, even erroneous ones, until overturned or terminated. Walker v.
City of Birmingham, 388 U.S. 307, 320-21 (1967) (holding that order
violating civil rights should have nevertheless been followed until
overturned); see also Howat v. Kansas, 258 U.S. 181, 190 (1922) ("It is for
the court of first instance to determine the question of the validity of the
law, and until its decision is reversed for error by orderly review, either by
itself or by a higher court, its orders based on its decision are to be
respected, and disobedience of them is contempt of its lawful authority, to
be punished."). Even if the order is later overruled, a sanction predicated
on violations of that order may remain in force. See Beauregard, Inc. v.
Sword Services LLC, 107 F.3d 351, 354 (5th Cir. 1997).
Here, the district court imposed a case-ending sanction by
striking Rish's answer, entering a default, and conducting a prove-up
hearing. Following argument on Simao's motion to strike Rish's answer,
the district court entered a written order analyzing the factors in Young v.
...continued
655, 656 (D.C. 1963); Cancio v. White, 697 N.E.2d 749, 756 (Ill. App. Ct.
1998); Mason v. Lynch, 878 A.2d 588, 601 (Md. 2005); Brenman v.
Demello, 921 A.2d 1110, 1118 (N.J. 2007); Gambrell v. Zengel, 265 A.2d
823, 824-25 (N.J. Super. Ct. App. Div. 1970); Accetta v. Provencal, 962
A.2d 56, 61-62 (R.I. 2009); Murray v. Mossman, 329 P.2d 1089, 1091
(Wash. 1958).
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Johnny Ribeiro Building, Inc., 106 Nev. 88, 93, 787 P.2d 777, 780 (1990),
and finding that Rish's trial counsel's conduct violated the low-impact
defense pretrial order. The order concluded that counsel engaged in
misconduct by violating the low-impact defense pretrial order on eight
occasions during trial: one incident involved a videotaped deposition that
Rish's trial counsel attempted to play during opening statements, four
incidents involved questions Rish's trial counsel posed to William Simao
and his experts concerning what happened to Rish and her passengers
following the accident, one incident involved Rish's trial counsel asking
William Simao if there was stop-and-go traffic prior to the accident, and
two incidents involved Dr. Fish's answers during cross-examination and
redirect.°
°The district court's oral order imposing case-ending sanctions was
"primarily" based on Rish's trial counsel's violations of the low-impact
defense pretrial order, but its written order also makes reference to three
additional violations of two separate pretrial orders. The parties did not
raise, and we do not analyze, the question of whether these two additional
pretrial orders and their corresponding violations violate BMW, 127 Nev.
122, 126, 252 P.3d 649, 652 (2011). Based on our disposition, we resolve
them briefly here.
First, during opening statement, Rish's trial counsel referred to an
unrelated motorcycle accident involving William Simao, which was barred
by a pretrial order. Second, Rish's trial counsel stated during opening
statement that doctors were going to testify and that some of them appear
regularly in court, and later Rish's trial counsel asked Dr. McNulty on
cross-examination whether he had testified around 100 times. Simao
objected to this question, and the district court sustained the objection.
These violations were allegedly barred by a pretrial order excluding any
attempt to present an "attorney driven' or a 'medical-buildup' case."
Neither of these alleged medical-build up violations appear to
actually fall within the pretrial order. In fact, the opening statement and
continued on next page...
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In BMW v. Roth, 127 Nev. 122, 126, 252 P.3d 649, 652 (2011),
we held "[for violation of an order in limine to constitute attorney
misconduct requiring a new trial, the order must be specific, the violation
must be clear, and unfair prejudice must be shown." Although the
sanction requested in BMW differs from the sanction requested here,
BMW's analysis is applicable because it addresses the larger issue of
attorney misconduct. See also Foster, 126 Nev. at 66, 227 P.3d at 1049
(discussing whether "the court's decision to strike defendants' pleadings
and enter default was just, related to the claims at issue in the violated
discovery order, and supported by a careful written analysis of the
pertinent factors").
...continued
cross-examination question are relevant to credibility. See Delaware v.
Van Arsdall, 475 U.S. 673, 678-79 (1986) ("[T]he exposure of a witness
motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination." (internal quotation
marks omitted)); Robinson v. G.G.C., Inc., 107 Nev. 135, 143, 808 P.2d
522, 527 (1991) ("Expert witness testimony is, in some respects, akin to a
business arrangement between the witness, the hiring attorney and the
client. The trier of fact has the right to take business associations into
account when determining the credibility of witnesses and the weight to
give their testimony."). Additionally, they do not implicate "medical build-
up." "Medical buildup" concerns a party "seekfing] necessary but costly
medical treatment, that they would otherwise forego" in order to generate
a larger award. Nora Freeman Engstrom, Sunlight and Settlement Mills,
86 N.Y.U. L. Rev. 805, 834 (2011); see also Bruce A. Hagen, Karen K.
Koehler & Michael D. Freeman, 2 Litigating Minor Impact Soft Tissue
Cases § 36:12 (2015) (explaining that a motion seeking to preclude a
defendant from referring to a case as a "medical buildup" or "attorney-
driven" case "seeks to preclude any evidence or statement implying that
medical treatment was sought as a result of litigation—or at the
suggestion of Plaintiffs attorneys").
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Specificity of the order
The low-impact defense pretrial order "preclude [d] [Rishl from
Raising a 'Minor' or tow Impact' Defense," but it gives no further
guidance except to specifically preclude Dr. Fish and other witnesses from
testifying, arguing, or insinuating that the collision was too insignificant
to have caused William Simao's injuries. Rish's trial counsel expressed his
confusion with the order on numerous occasions, but the district court
refused to clarify what it would and would not allow.
A low-impact defense is defined as "describ[ing] [an] incident
as 'low impact' in order "to liken the incident to common, everyday
experiences." Roxanne Barton Conlin & Gregory S. Cusimano, Litigating
Tort Cases § 53:22 (2014). The district court appears to broadly construe
the term low-impact defense to include the facts before, during, and after
the accident.
However, Rish, without objection, was permitted to describe
the accident in her opening statement, stating that "she was stopped
behind [William Simad who moved a few feet in front of her. . . ; [Rish]
applied her brakes, only just not quite hard enough; and the accident
followled]." Thereafter, Simao objected to questions concerning the nature
of the accident, including questions posed by Rish's trial counsel
concerning traffic conditions and what Rish did following the accident.
These objections were all sustained. This inconsistent application of the
low-impact defense pretrial order leads to our conclusion that the order
prohibiting the low-impact defense lacks specificity.
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Clarity of the violations
Two of the violations of the low-impact defense pretrial order
were statements made by Dr. Fish. Dr. Fish's implied comment that the
accident was not significant was made during Simao's cross-examination,
and his statement that William Simao's injuries were based, in part, on
knowledge of the accident was made during redirect. Nothing in the
record or the district court's order shows that Fish's trial counsel
prompted or caused Dr. Fish to testify in violation of the low-impact
defense pretrial order.
The other instances of attorney misconduct regard the same
basic questions posed by Rish's trial counsel: whether the witness knew
what happened to Fish as a result of the accident and whether there was
stop-and-go traffic before the accident. While these instances might be
construed to violate the low-impact defense pretrial order, none of them
describe the accident itself. We conclude that there is no clear violation,
let alone misconduct, of the low-impact defense pretrial order caused by
these questions.
Unfair prejudice
Even if we were to find clear misconduct, there was no unfair
prejudice to Simao. The district court found that "no lesser sanction had
been successful in precluding future violations." But, the district court's
order fails to explain why. Under this prong, the district court is required
to find that a violation is so extreme that it cannot be eliminated through
an objection and admonition. Lioce v. Cohen, 124 Nev. 1, 17, 174 P.3d 970,
6 We note that the district court never described how the alleged
instances of misconduct violated the pretrial orders.
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981 (2008). The district court failed to meet this requirement because it
did not articulate why the various admonitions and, ultimately, the
irrebuttable presumption instruction were inadequate to address the
alleged misconduct.
Even if an irrebuttable presumption instruction was justified,
the instruction itself was confusing. The jury was first instructed that the
accident in this case was sufficient to cause William Simao's injuries.
However, the jury was then instructed that it was to determine whether
the accident proximately caused William's injuries. But given the first
part of the instruction, it is unclear how Rish could show or the jury would
decide whether the accident caused William's injuries. Also, the district
court did not explain the difference between causation and proximate
causation, so the jury would not have been able to effectively understand
or utilize the instruction. Further, regardless of its confusion, the
instruction was more than sufficient to remedy any misconduct that
occurred up to that point in the trial.
While it is true that two more alleged violations of the low-
impact defenseS pretrial order occurred before the district court struck
Rish's answer, the district court struck both questions posed by Rish's trial
counsel and William Simao did not answer either. The district court did
not explain how these two alleged violations raised the aggregate
misconduct to a level warranting the ultimate case-ending sanction.
Because we• conclude that any misconduct by Rish's trial
counsel did not rise to the level requiring the case-ending sanctions
imposed by the district court under BMW, 127 Nev. at 126, 252 P.3d at
652, we vacate the order striking Rish's answer.
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Accordingly, for the reasons set forth above, we reverse the
district court's judgment and post-judgment order denying a new tria1, 7
and we remand this matter to the district court for a new trial consistent
with this opinion. 8
xer.AtA.-\ J.
Hardesty
We concur:
J.
7 We decline to assign this case to a different judge because the
district court's rulings do not suggest bias. See Millen v. Eighth Judicial
Dist. Court, 122 Nev. 1245, 1254-55, 148 P.3d 694, 701 (2006)
("[D]isqualification for personal bias requires an extreme showing of bias
that would permit manipulation of the court and significantly impede the
judicial process and the administration of justice." (internal quotation
marks and alteration omitted)).
8 In light of this opinion, the attorney fees order is also vacated.
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