France v. Brakkee ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
DAVID HENRY FRANCE, No. 64616
Appellant,
vs.
GARRIT BRAKKEE, INDIVIDUALLY,
FILED
Respondent. APR 0 4 2016
TRP,CLE K LINDEMAN
ORDER OF AFFIRMANCE CLERK OF SUPREME COURT
BY G•Y
4-)CTI
DEPU(3.
- I
_ERK
This is an appeal from a district court judgment and denial of
a motion for a new trial in a personal injury action. Eighth Judicial
District Court, Clark County; Rob Bare, Judge.
Appellant David France and respondent Garrit Brakkee were
involved in a car accident in December 2005 in which France was injured.
France later applied for social security disability benefits and was
examined by Dr. Jerrold Sherman to determine the degree of his
disability. France's application was denied and he received no benefits.
France initiated an action in tort against Brakkee t At trial,
Brakkee disputed the length of time that France suffered pain, the
necessity of future medical care, and the medical recommendation of a
future surgical procedure. Brakkee moved to introduce France's social
security disability application and the accompanying medical report into
evidence. The district court granted Brakkee's motion, with an order that
the documents be redacted to remove any mention of social security
benefits.
The jury awarded France $275,000 for past medical expenses
and $90,000 for past pain and suffering, but made no award for future
medical expenses or for future pain and suffering. France moved for
additur or, in the alternative, a new trial, which the district court denied.
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In this appeal, France argues the district court erred by
denying his motion for additur or, in the alternative, a new trial as to
damages. France contends (1) that he is entitled to a new trial for various
errors under NRCP 59(a), and (2) that the jury award was clearly
inadequate. We conclude that the district court did not abuse its
discretion in denying France's motion for a new trial under NRCP 59(a)
and in determining the jury award was adequate.
The district court did not err by denying France's motion for a new trial
under NRCP 59(a)
France argues the district court erred by denying his motion
for a new trial under NRCP 59(a). We disagree.
A new trial may be granted pursuant to NRCP 59(a) where an
aggrieved party's substantial rights have been materially affected by any
of the following;
(1) Irregularity in the proceedings of the court,
jury, master, or adverse party, or any order of
the court or master, or abuse of discretion by
which either party was prevented from having
a fair trial;
(2) Misconduct of the jury or prevailing party;
(3) Accident or surprise which ordinary prudence
could not have guarded against; . . .
(5) Manifest disregard by the jury of the
instructions of the court; . . or,
(7) Error in law occurring at the trial and objected
to by the party making the motion.
NRCP 59(a).
"The decision to grant or deny a motion for new trial rests
within the sound discretion of the trial court and will not be disturbed on
appeal absent palpable abuse." S. Pac. Transp. Co. v. Fitzgerald, 94 Nev.
241, 244, 577 P.2d 1234, 1236 (1978). "While review for abuse of
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discretion is ordinarily deferential, deference is not owed to legal error."
Bayerische Motoren Werke Aktiengesellschaft v. Roth, 127 Nev. 122, 133,
252 P.3d 649, 657 (2011) (quoting AA Primo Builders v. Washington, 126
Nev. 578, 589, 245 P.3d 1190, 1197 (2010)); see 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."). The district court did not
abuse its discretion in denying the motion for a new trial.
The district court did not err in concluding that the length of trial
and the alleged juror misconduct did not warrant a new trial under
NRCP 59(a)
France argues the district court erred in denying his motion
for a new trial because the length of trial and alleged juror misconduct
warrant a new trial under NRCP 59(a). We disagree.
The district court was only permitted to consider juror
Runyon's affidavit to the extent that it recounted what physically occurred
during deliberations, not how any of the evidence admitted at trial
affected the jurors' mental processes, or the effect that any misconduct had
upon the jurors. Pappas v. State ex rel. Dep't of Transp., 104 Nev. 572,
575, 763 P.2d 348, 349 (1988) ("[W]hile juror affidavits may properly be
admitted to show what physically transpired in the jury room, they are
inadmissible for proving the jurors' mental processes or the effects of
alleged misconduct upon jurors."). Runyon's claims regarding what jurors
said or believed concerning collateral sources, how the foreperson's
conduct affected other jurors, and how the length of trial affected the
juror's mental processes cannot be considered. Thus, the district court
acted within its discretion in determining that the alleged juror
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misconduct and the length of trial did not amount to an irregularity in the
proceedings sufficient to justify a new trial under NRCP 59.
The district court did not abuse its discretion by admitting Dr.
Sherman's report
France argues the district court erred by not granting a new
trial under NRCP 59(a) based on the admission of Dr. Sherman's report.
We disagree.
A district court's decision to admit hearsay evidence will not
be disturbed on appeal absent an abuse of discretion. Fields v. State, 125
Nev. 785, 795, 220 P.3d 709, 716 (2009). Here, Dr. Sherman's report is
admissible hearsay under NRS 51.135 as a record or report created in the
course of a regularly conducted activity. Accordingly, the district court
acted within its discretion in determining that the report did not
constitute an error sufficient to warrant a new trial under NRCP 59.
The district court did not abuse its discretion by admitting Dr.
Brandner's testimony
France argues the district court erred by admitting Dr.
Patrick Brandner's testimony. We disagree.
"The admissibility of expert testimony, as well as of the
qualifications of the expert, lies within the sound discretion of the trial
court." Childers v. State, 100 Nev. 280, 283, 680 P.2d 598, 600 (1984).
"The district court has 'wide discretion' to determine the admissibility of
expert testimony on a 'case-by-case basis." Brant v. State, 130 Nev., Adv.
Op. 97, 340 P.3d 576, 579 (2014) (quoting Higgs v. State, 126 Nev. 1, 18,
222 P.3d 648, 659 (2010)). Here, it was reasonable for the district court to
conclude that Dr. Brandner was qualified to provide expert testimony with
regard to the field of spinal injuries and the diagnosis of spinal injuries
based on radiological scans. Accordingly, the district court acted within its
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discretion in determining Dr. Brandner's testimony did not constitute a
surprise or error sufficient to warrant a new trial under NRCP 59.
France is estopped from challenging the admissibility of Dr. Sherman's
report and the social security benefits application
France argues that the district court erred by admitting Dr.
Sherman's report and the social security benefits application into evidence
because it allowed the jury to consider collateral source evidence. In
general, this court has adopted a per se rule barring the admission of
evidence of collateral source payments. Proctor v. Castelletti, 112 Nev. 88,
90-91, 911 P.2d 853, 854 (1996) ("[N]o matter how probative the evidence
of a collateral source may be, it will never overcome the substantially
prejudicial danger of the evidence."). However, "a party will not be heard
to complain on appeal of errors which he himself induced or provoked the
court or the opposite party to commit [lit is sufficient that the party
who on appeal complains of the error has contributed to it." Pearson v.
Pearson, 110 Nev. 293, 297, 871 P.2d 343, 345 (1994) (quoting 5 Am. Jur.
2d Appeal and Error § 713 (1962)); see also Taylor v. State, 109 Nev. 849,
856-57, 858 P.2d 843, 848 (1993) (Shearing, J., concurring in part and
dissenting in part) (stating that the invited error doctrine "establish[es]
that ordinarily inadmissible evidence may be rendered admissible when
the complaining party is the party who first broached the issue").
Here, Brakkee moved to have France's application for social
security benefits and the accompanying report admitted into evidence.
The district court granted Brakkee's motion and ordered the report and
application be redacted such that the jury would not be informed that it
was an application for social security benefits. However, France disclosed
the nature of the application to the jury on the first day of trial. As such,
the doctrines of invited error and estoppel preclude France from
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challenging the admissibility of Dr. Sherman's report and France's
application on these grounds. Topaz Mut. Co. v. Marsh, 108 Nev. 845,
853, 839 P.2d 606, 611 (1992) ("Equitable estoppel functions to prevent the
assertion of legal rights that in equity and good conscience should not be
available due to a party's conduct.").
The district court did not err in denying France's motion for additur
France argues the district court erred in denying his motion
for additur because the jury award was inadequate. We disagree.
"The [district] court is afforded great discretion in deciding
motions for additur." Donaldson v. Anderson, 109 Nev. 1039, 1041, 862
P.2d 1204, 1206 (1993). "Such. . . decision[s] will remain undisturbed
absent an abuse of that discretion." Id.; see also Lee v. Ball, 121 Nev. 391,
394, 116 P.3d 64, 66 (2005).
To obtain an additur, the moving party must establish that
the damages awarded were clearly inadequate and the case is a "proper
one for granting a motion for a new trial limited to damages." Winchell V.
Schiff, 124 Nev. 938, 949, 193 P.3d 946, 953 (2008) (internal quotation
marks omitted). "[I]n practical application there is only one primary
consideration. . [I]f damages are clearly inadequate or shocking to the
court's conscience, additur is a proper form of appellate relief."
Donaldson, 109 Nev. at 1042, 862 P.2d at 1206 (internal quotation marks
omitted) (citing Arnold v. Mt. Wheeler Power, 101 Nev. 612, 614, 707 P.2d
1137, 1139 (1985)).
Here, the jury heard conflicting testimony regarding the
nature and extent of France's injuries and the necessity of future medical
treatment. Additionally, the parties introduced significant contradictory
evidence regarding the nature and extent of France's injuries. Thus, the
jury's award was supported by substantial evidence. Accordingly, the
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district court did not abuse its discretion in denying France's motion for
additur. 1 Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
J.
J.
Gibbons
cc: Hon. Rob Bare, District Judge
John Walter Boyer, Settlement Judge
Law Office of Justin Patrick Stovall
Stovall & Associates
Atkin Winner & Sherrod
Eighth Judicial District Court Clerk
'We have considered the parties' remaining arguments and conclude
they are without merit.
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