Khoury v. Seastrand , 2016 NV 52 ( 2016 )

132 Nev., Advance Opinion 5 2-
IN THE SUPREME COURT OF THE STATE OF NEVADA
RAYMOND RIAD KHOURY,
Appellant,
No. 64702 FILE
vs. JUL 2 8 201
MARGARET SEASTRAND,
Respondent.
BY
HIEP 'DE
RAYMOND RIAD KHOURY, No. 65007
Appellant,
vs.
MARGARET SEASTRAND,
Respondent.
RAYMOND RIAD KHOURY, No, 65172
Appellant,
vs.
MARGARET SEASTRAND,
Respondent.
Consolidated appeals from a district court judgment, pursuant
to a jury verdict, and post-judgment orders awarding costs and denying a
new trial in a personal injury action. Eighth Judicial District Court, Clark
County; Jerry A. Wiese, Judge.
Affirmed in part, reversed in part, and remanded.
Hall Jaffe & Clayton, LLP, and Steven T. Jaffe, Las Vegas; Harper Law
Group and James E. Harper, Las Vegas; Houser & Allison, APC, and
Jacob S. Smith, Las Vegas; and Lewis Roca Rothgerber Christie LLP and
Daniel F. Polsenberg, Joel D. Henriod, and Abraham G. Smith, Las Vegas,
for Appellant.
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Richard Harris Law Firm and Alison M. Brasier, Benjamin P. Cloward,
and Richard A. Harris, Las Vegas,
for Respondent.
BEFORE THE COURT EN BANC.'
OPINION
By the Court, SAITTA, J.:
As any trial attorney is aware, the jury voir dire process can
be as important to the resolution of their claim as the trial itself. In this
case we are asked to consider whether an attorney may ask prospective
jurors questions concerning a specific verdict amount to determine
potential bias or prejudice against returning large verdicts and whether
repeatedly asking questions about that specific verdict amount results in
jury indoctrination warranting a mistrial. We also consider the question
of when a district court abuses its discretion in dismissing jurors for cause
under Jitnan v. Oliver, 127 Nev. 424, 254 P.3d 623 (2011).
We hold that while it is permissible for a party to use a
specific award amount in questioning jurors regarding their biases
towards large verdicts, it is the duty of the district court to keep the
questioning within reasonable limits When the district court fails to do
so, this can result in reversible error due to jury indoctrination. We also
distinguish our holding in Jitnan to emphasize that a juror's statements
must be taken as a whole when deciding whether to dismiss for cause due
3-TheHonorable Ron Parraguirre, Chief Justice, voluntarily recused
himself from participation in the decision of this matter.
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to bias Just as detached language considered alone is insufficient to
establish that a juror is unbiased, it is also insufficient to establish that a
juror is biased.
In the current case, we hold that, while troubling, the
plaintiff's questioning of the jurors during voir dire did not reach the level
of indoctrination. Furthermore, we hold that the district court abused its
discretion by dismissing for cause five jurors because their statements,
when taken as a whole, did not indicate that they were biased against
large verdict amounts. However, the district court's error was harmless.
Next, the district court did not abuse its discretion by admitting opinion
and causation testimony by respondent's treating physician, by admitting
testimony by respondent's expert witness, or by excluding evidence of the
amount that respondent's medical providers received for the sale of her
medical liens. However, the district court did abuse its discretion by
excluding evidence of the medical lien's existence to prove bias in
Seastrand's medical providers, but the error was harmless. Lastly, we
hold that the district court abused its discretion by awarding respondent
expert witness fees in excess of $1,500 per expert because it did not state a
basis for its award. Therefore, we reverse the district court's decision as to
the award of expert witness fees and remand to the district court with
instructions to redetermine the amount of expert witness fees and, if
greater than $1,500 per witness, to state the basis for its decision.
FACTUAL AND PROCEDURAL HISTORY
Respondent Margaret Seastrand and appellant Raymond Riad
Khoury were in an automobile accident where Khoury's car rear-ended
Seastrand's car. Following the accident, Seastrand received extensive
treatment to both her neck and back, including surgeries. Seastrand
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brought the underlying personal injury action against Khoury to recover
damages.
Khoury stipulated to liability for the accident, and the only
issues contested at trial were medical causation, proximate cause, and
damages. Khoury argued that Seastrand's injuries leading to the
surgeries were preexisting and were not caused by the accident. During
voir dire, Seastrand stated that she was seeking $2 million in damages
and was permitted to question the jurors regarding whether they had
hesitations about potentially awarding that specific verdict amount. After
this questioning, the district court granted Seastrand's motion to dismiss
several jurors for causeS but denied Seastrand's motion to dismiss five
other jurors for cause. However, the next day, the district court
reconsidered its previous ruling and dismissed those five jurors for cause.
During trial, multiple expert witnesses testified, including Dr.
Jeffrey Gross, a neurological expert, and Dr. William S. Muir, one of
Seastrand's treating physicians. After a ten-day trial, the jury returned a
verdict in the amount of $719,776. Seastrand then filed a memorandum of
costs in the amount of $125,238.01 and a motion for attorney fees. Khoury
opposed the motion and moved to retax costs. The district court granted
in part Seastrand's motion for costs, awarding her $75,015.61, denied
Seastrand's motion for attorney fees, and denied Khoury's countermotion
to retax costs. Khoury then made a motion for a new trial, alleging
various errors. The district court denied Khoury's motion. Khoury
appeals from the judgment, the costs award, and the order denying his
new trial motion.
Khoury raises the following issues on appeal: whether the
district court abused its discretion by (1) denying Khoury's motion for a
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mistrial due to jury indoctrination, (2) dismissing jurors for cause that
displayed concerns about their ability to award large verdicts and/or
damages for pain and suffering, (3) admitting causation and opinion
testimony by one of Seastrand's treating physicians, (4) admitting
testimony by one of Seastrand's expert witnesses that was outside the
scope of his specialized knowledge and/or undisclosed in a timely expert
report, (5) excluding evidence of the amount Seastrand's medical providers
received for the sale of her medical liens, (6) excluding evidence of her
medical liens, (7) refusing to grant a new trial following Seastrand's use of
the word "claim" during opening arguments, and (8) awarding costs to
Seastrand.
DISCUSSION
The voir dire process
Khoury argues that the district court abused its discretion by
allowing Seastrand to voir dire the jury panel about their biases regarding
large verdicts. Khoury contends that Seastrand's questioning
indoctrinated the jury to have a disposition towards a large verdict.
Khoury argues that by asking jurors if they were uncomfortable with a
verdict in excess of $2 million, Seastrand's attorney "improperly implanted
a numerical value in the minds of the jury as representative of plaintiff's
damages before the jurors heard or considered any admitted evidence."
Therefore, Khoury urges this court to "rule that such questions are per se
improper."
The decision whether to grant or deny a motion for mistrial is
within the trial court's discretion. Owens v. State, 96 Nev. 880, 883, 620
P.2d 1236, 1238 (1980).
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Questioning jurors during voir dire about specific verdict amounts is
not per se indoctrination
"The purpose of jury voir dire is to discover whether a juror
will consider and decide the facts impartially and conscientiously apply
the law as charged by the court." Lamb v. State, 127 Nev. 26, 37, 251 P.3d
700, 707 (2011) (internal quotation marks omitted). "While counsel may
inquire to determine prejudice, he cannot indoctrinate or persuade the
jurors." Scully v. Otis Elevator Co., 275 N.E.2d 905, 914 (Ill. App. Ct.
1971).
Although we have not yet considered the issue of jury
indoctrination in the civil context, we have considered it, albeit briefly, in
criminal proceedings. See Hogan v. State, 103 Nev. 21, 23, 732 P.2d 422,
423 (1987); see also Johnson v. State, 122 Nev. 1344, 1354-55, 148 P.3d
767, 774 (2006). In Hogan, the court indicated that it was not an abuse of
discretion for the district court to refuse to allow voir dire questions that
were "aimed more at indoctrination than acquisition of information." 103
Nev. at 23, 732 P.2d at 423. In Johnson, the court indicated that allowing
the State to ask "prospective jurors about their ability to carry out their
responsibilities l,1" by sentencing the defendant to death, was within the
district court's discretion. 122 Nev. at 1354-55, 148 P.3d at 774.
Other jurisdictions have considered the indoctrination issue in
the civil context and have addressed the particular issue raised here—
whether asking jurors if they have any hesitations about awarding a
specific amount of damages results in indoctrination per se. In Kinsey v.
Kolber, the Appellate Court of Illinois held that questioning jurors about
specific verdict amounts was not indoctrination because it "tended to
uncover jurors who might have bias or prejudice against large verdicts."
431 N.E.2d 1316, 1325 (Ill App. Ct. 1982); see also Scully, 275 N.E.2d at
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914 (suggesting that allowing the plaintiff to question jurors about specific
amounts was not abuse of discretion because "[s]ome prospective jurors
may have had fixed opinions, which indicate bias or prejudice against
large verdicts, and which might not readily yield to proper evidence."
(internal quotation marks omitted)).
Alternatively, some jurisdictions have found that it is within
the discretion of the district court to refuse to allow the plaintiff to ask
questions about specific dollar amounts. This is because "they may tend to
influence the jury as to the size of the verdict, and may lead to the
impaneling of a jury which is predisposed to finding a higher verdict by its
tacit promise to return a verdict for the amount specified in the question
during the voir dire examination." Trautman v. New Rockford-Fessenden
Co-op Transp. Ass'n, 181 N.W.2d 754, 759 (N.D. 197W; see also Henthorn
v. Long, 122 S.E.2d 186, 196 (W. Va. 1961). However, these courts did not
state that questions about specific dollar amounts were per se improper;
rather, the courts in these cases merely held that it was within the district
court's discretion to refuse to allow the plaintiff to ask questions about
specific dollar amounts. See Trautman, 181 N.W.2d at 759 ("It is well
within the trial court's discretion to sustain objections to such questions.");
Henthorn, 122 S.E.2d at 196 ("While jurors may be interrogated on their
voir dire within reasonable limits, to elicit facts to enable the litigants to
exercise intelligently their right of peremptory challenge, the nature and
extent thereof should be left largely to the discretion of the trial court."
(internal quotation marks omitted)).
We agree with other courts that have considered this issue
and do not find the use of specific dollar amounts in voir dire to be per se
improper. Indeed, it may be appropriate to use a specific amount in order
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to discover a juror's biases towards large verdicts. Simply asking jurors
about their feelings regarding "large" awards or some similarly vague
adjective may be insufficient to determine if a juror has a preconceived
damages threshold for a certain type of case. A juror may consider himself
or herself capable of awarding a verdict of $100,000, a verdict which in
their mind may be fabulously large, but be unable to follow the law and
award a verdict with another zero attached. Therefore, we hold that
allowing a party to voir dire the jury panel regarding a specific verdict
amount is within the district court's discretion.
Courts should remain vigilant of the danger of indoctrination during
voir dire
During the three-day voir dire, Seastrand's attorney asked the
jurors the following question:
I'm going to be brutally honest with you folks right
now. I'm going to say something that's a little
uncomfortable for me to say. My client is suing for
in excess of $2 million, and that's—you know,
that's—that's what it is, and I'm putting that out
there. I'm just going to be brutally honest about
that. And I know that some of you folks, you
know, you had different views and different beliefs
in—in the jury questionnaire, and that's fine. But
I want to talk about that right now.
So who here is a little uncomfortable, even if
it's just a little bit, with what I just said?
Seastrand's attorney did not stop there, however. He repeatedly brought
up the $2 million verdict amount with each individual juror. In his quest
to discover the jurors' feelings on that specific verdict amount, the record
indicates that his actions bordered on badgering. One juror stated that
Seastrand's attorney had used a "bullying tactic" in his "overemphasis on
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money" which "left a very bad taste in [his] mouth." The record also
reflects that the questioning almost reduced another juror to tears.
Although our review of the voir dire transcript indicates that
it was aimed more at acquisition of information than indoctrination, it was
uncomfortably close. If the conduct by Seastrand's attorney had been
allowed to become any more egregious, it would have reached the level of
reversible error due to jury indoctrination. We take this opportunity to
remind district court judges of their role in carefully considering the
treatment of jurors during the selection process and the ultimate objective
of seating a fair and impartial jury. However, we ultimately hold that the
district court did not abuse its discretion in finding that the jury was not
impermissibly indoctrinated in its denial of Khoury's motion for a mistrial.
The dismissals for cause
Khoury argues that the district court abused its discretion by
misapplying Jitnan v. Oliver, 127 Nev. 424, 254 P.3d 623 (2011), to
dismiss jurors for cause who expressed concerns about awarding a large
verdict amount. Khoury argues that a juror's prejudice against large
verdict amounts or pain and suffering damages is not a foini of bias.
Therefore, he maintains that the district court abused its discretion in
dismissing for cause jurors displaying such a prejudice. Khoury further
asserts that the district court abused its discretion by denying his motion
for a mistrial on these issues. See Owens, 96 Nev. at 883, 620 P.2d at
1238.
During voir dire, the district court initially denied a motion to
dismiss for cause five individual jurors. However, after reviewing our
decision in Jitnan, the district court reconsidered its prior ruling and
dismissed the five jurors for cause "in an abundance of caution" because
le]ach one of them talked about the fact,. . that $2 million was too
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much." In making its ruling, the district court was particularly concerned
with whether the prospective jurors could state "unequivocally" that they
did not have a preconception that a personal injury case could not support
a large damages verdict. See Jitnan, 127 Nev. at 432, 254 P.3d at 629
(holding that "[d] etached language considered alone is not sufficient to
establish that a juror can be fair when the juror's declaration as a whole
indicates that she could not state unequivocally that a preconception
would not influence her verdict." (emphasis added) (internal quotation
marks omitted)). The district court stated that "the unequivocal language
[in Jitnan] is the language that I keep coming back to and in order to
avoid the potential of bias or prejudice, I'm going to exclude them all."
A juror's bias against large verdict amounts or pain and suffering
damages is a form of bias
"[Blias exists when the juror's views either prevent or
substantially impair the juror's ability to apply the law and the
instructions of the court in deciding the verdict." Sanders v. Sears-Page,
131 Nev., Adv. Op. 50, 354 P.3d 201, 206 (Ct. App. 2015).
Here, jurors were dismissed for cause on the grounds that they
indicated they were predisposed against awarding a large amount of
damages or damages for pain and suffering and would not be able to apply
the law and the instructions of the court to the evidence presented because
of their preconceived views. Inability by a juror to apply the law and
instructions of the court displays bias. Therefore, we next consider
whether such a bias existed in the jurors dismissed for cause by the
district court.
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The district court abused its discretion by dismissing jurors for cause
that displayed a "potential" bias against large verdicts
"A district court's ruling on a challenge for cause involves
factual determinations, and therefore, the district court enjoys broad
discretion, as it is better able to view a prospective juror's demeanor than
a subsequent reviewing court." Jitnan, 127 Nev. at 431, 254 P.3d at 628
(internal quotation marks omitted). 2 In Jitnan, we stated:
In determining if a prospective juror should
have been removed for cause, the relevant inquiry
focuses on whether the juror's views would
prevent or substantially impair the performance of
his duties as a juror in accordance with his
instructions and his oath. Broadly speaking, if a
prospective juror expresses a preconceived opinion
or bias about the case, that juror should not be
removed for cause if the record as a whole
demonstrates that the prospective juror could lay
aside his impression or opinion and render a
verdict based on the evidence presented in court.
But detached language considered alone is not
sufficient to establish that a juror can be fair when
the juror's declaration as a whole indicates that
she could not state unequivocally that a
preconception would not influence her verdict.
Id. at 431-32, 254 P.3d at 628-29 (emphasis added) (citations and internal
quotation marks omitted).
2 Khoury argues in his reply brief that the district court
misinterpreted NRS 16.050 and that therefore the proper standard of
review is de novo, not abuse of discretion. Because Khoury raises this
issue for the first time in his reply brief, it is deemed waived and we do not
consider it here. NRAP 28(c).
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Here, the district court initially denied Seastrand's motion to
dismiss five jurors for cause who had expressed concerns about awarding
large verdict amounts and/or pain and suffering damages, but later stated
under cross-examination by Khoury that they would be able to follow the
law and award a large verdict amount and/or pain and suffering damages.
However, the next day, the district court reconsidered its prior ruling and
dismissed the jurors for cause, reasoning that "the unequivocal language
[in Jitnan] is the language that I keep coming back to and in order to
avoid the potential of bias or prejudice, I'm going to exclude them all."
(Emphasis added.)
This statement encapsulates the district court's error.
Potential bias is not a valid basis for dismissing a juror for cause. Jurors
should only be excluded on the basis of an actual bias that prevents or
substantially impairs the juror's ability to apply the law and the
instructions of the court in deciding the verdict or for other grounds
defined by statute. See NRS 16.050. It is clear from the district court's
oral reasoning that it was focused on the last sentence of Jitnan and,
specifically, the single word "unequivocally," while ignoring the context
provided by the remainder of the paragraph in which it is contained. If
potential bias was all that were required to dismiss a juror for cause, then
any expression of doubt, no matter how small, by a juror would be grounds
to dismiss for cause. Under such a standard, rehabilitation by the
opposing party's attorney would be impossible. No matter how fervent a
juror's statements indicating that they could follow the law, the potential
for bias would remain.
Jitnan, when read in context, states that jurors' statements
expressing a potential bias are not enough, when taken alone, to mean
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that they cannot "unequivocally" follow the law. 127 Nev. at 432, 254 P.3d
at 629. While Jitnan only states that "[d]etached language considered
alone is not sufficient to establish that a juror can be fair," this is also true
for establishing whether a juror cannot be fair. Id. (internal quotation
marks omitted). Jurors' statements must be taken "as a whole," and
"[d] etached language, considered alone [J" indicating that they may have
difficulty awarding a large verdict amount is insufficient to demonstrate
that they would be unable or substantially impaired in applying the law
and the instructions of the court in deciding the verdict and thus actually
biased against awarding large verdict amounts. Id. (internal quotation
marks omitted).
After reviewing the voir dire transcript, we conclude that the
district court got it right the first time when it refused to dismiss the five
jurors for cause. Therefore, we hold that the district court abused its
discretion by improperly dismissing jurors for cause whose statements,
when taken as a whole, indicate that they could apply the law and the
instructions of the court in deciding the verdict and thus were not actually
biased.
The error was harmless
Khoury argues that excluding jurors for their biases against
large verdict amounts was reversible error because it prevented the jury
from being a fair cross-section of society. Khoury equates this to excluding
jurors on the basis of political affiliation, which some courts do not allow.
Although we have not yet considered this issue, most
jurisdictions have held that when the district court abuses its discretion in
dismissing a juror for cause, it is not reversible error. See Jones v. State,
982 S.W.2d 386, 392 (Tex. Crim App. 1998) ("The law in Texas for civil
cases is like that of the federal courts and the courts of the other states. It
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has long been the established rule in this state that even though the
challenge for cause was improperly sustained, no reversible error is
presented unless appellant can show he was denied a trial by a fair and
impartial jury." (internal quotation marks omitted)); see also Basham v.
Commonwealth, 455 S.W.3d 415, 421 (Ky. 2014) (holding that even when a
trial court abuses its discretion in dismissing a juror for cause, it is not
reversible error unless that abuse was "tantamount to some kind of
systematic exclusion, such as for race"). This is because, unlike an abuse
of discretion in refusing to dismiss a juror, which can result in a biased
juror or jury, when the district court improperly strikes a juror, it "[does]
not prejudice the [appellant]." If a "competent and unbiased juror was
selected and sworn," the appellant had "a trial by an impartial jury, which
was all it could demand." N. Pac. R.R. Co. v. Herbert, 116 U.S. 642, 646
(1886).
Khoury is unable to provide any persuasive authority to
support his contention that improperly dismissing jurors with a perceived
bias for cause is reversible error. Rather, Khoury relies on Powers v. Ohio,
499 U.S. 400, 422, (1991), which holds that dismissing jurors on the basis
of race prevents a jury from being "a fair cross section of the community"
We do not conclude exclusion on the basis of race to be comparable to
exclusion due to a mistaken finding of bias. Likewise, we reject Khoury's
argument that dismissing for cause due to bias against large verdicts is
comparable to dismissing for cause due to political affiliations. While at
least one court has held that "falffiliations with political parties constitute
neither a qualification nor disqualification for jury service," State v.
McGee, 83 S.W.2d 98, 106 (Mo. 1935), it did not hold that dismissing for
cause on this issue is reversible error. Therefore, we hold that the district
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court's error was harmless and does not warrant reversal of the judgment
or the order denying Khoury's new trial motion.
Dr. Muir's testimony
Khoury argues that Seastrand's treating physician, Dr. Muir,
should have been precluded from testifying about the cause of Seastrand's
injuries and his opinion on the treatment provided by Dr. Marjorie E.
Belsky because Seastrand failed to conform to the testifying expert
witness disclosure requirements in presenting Dr. Muir as a witness.
The district court did not abuse its discretion by admitting Dr.
Muir's testimony
This court reviews the decision of the district court to admit
expert testimony without an expert witness report or other disclosures for
an abuse of discretion. FCH1, LLC v. Rodriguez, 130 Nev., Adv. Op. 46,
335 P.3d 183, 190 (2014) (reviewing for an abuse of discretion a district
court's decision to allow physician testimony without an expert witness
report and disclosure). "While a treating physician is exempt from the
report requirement, this exemption only extends to 'opinions [that] were
formed during the course of treatment." Id., 335 P.3d at 189 (quoting
Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 826 (9th Cir.
2011)). "Where a treating physician's testimony exceeds that scope, he or
she testifies as an expert and is subject to the relevant requirements." Id.
On direct examination, the following exchange occurred
between Dr. Muir and Seastrand's attorney:
Q. Dr. Muir, No. 1, do you feel that there
was an adequate workup of the patient prior to
getting to you?
A. Yes.
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Khoury argues that Dr. Muir improperly opined on the reasonableness of
Dr. Belsky's treatment in this exchange because Dr. Muir did not form
this opinion during the course of his treatment of Seastrand.
At trial, evidence was presented supporting the contention
that Dr. Muir's opinion of the workup of Seastrand by Dr. Belsky was
formed in the course of Dr. Muir's treatment. Dr. Muir testified that Dr.
Belsky referred Seastrand to him after the injections given by Dr. Belsky
failed to cause her condition to improve. Dr. Muir testified that both he
and Dr. Belsky believed that Seastrand's symptoms were caused by the
same portions of the spine. Dr. Muir further testified that the injections
given by Dr. Belsky "help [ed] to determine if a particular nerve is being
irritated or maybe damaged." He testified that it is possible that "after a
couple of injections, maybe the body has healed itself. ... [a]nd you can
treat the problem in a less aggressive way or maybe it won't require any
treatment after a period of time." Lastly, Dr. Muir testified that he took
into consideration the course of treatment of other providers in making his
diagnosis and treatment plan.
Dr. Muir's testimony indicates that the injections given by Dr.
Belsky were helpful in determining which of Seastrand's nerves were
damaged and whether aggressive treatment would be necessary. His
testimony also indicated that his review of the treatment of other
providers is helpful in making his diagnosis and treatment plan. Thus,
Dr. Muir's testimony indicates that his opinion of Dr. Belsky's treatment
was formed in the course of his own treatment. Therefore, we hold that
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the district court did not abuse its discretion by admitting Dr. Muir's
testimony as to whether Dr. Belsky's workup of Seastrand was adequate. 3
Dr. Gross's testimony
Khoury argues that the district court abused its discretion by
allowing Dr. Gross to testify about symptoms that Seastrand experienced
before the accident, as such testimony was outside the scope of his
specialized knowledge as a neurosurgeon and was an opinion that was not
disclosed in Dr. Gross's expert report. Therefore, Khoury argues that the
district court abused its discretion by admitting the testimony.
On direct examination, the following exchange occurred
between Seastrand's attorney and Dr. Gross:
[The court, repeating a question from Seastrand's
attorney.] Is it more probable those findings
were—of the numbness and tingling were coming
from the neck or more probable it was from the
heart event for which she had a positive stress
test?
[Dr. Gross]: It is more probable that the arm
symptoms are unrelated to the neck and more
likely related to the heart or anxiety or both.
Dr. Gross was referring to symptoms that Seastrand had prior to the
accident giving rise to the current case. This was relevant because
3 1Choury also argues that Dr. Muir's testimony as to causation
regarding Seastrand's injuries was improper. However, because Khoury
did not object to Dr. Muir's testimony on causation, he has waived this
issue on appeal. See In re Parental Rights as to J.D.N., 128 Nev. 462, 468,
283 P.3d 842,846 (2012) (" [W]hen a party fails to make a specific objection
before the district court, the party fails to preserve the issue for appeal.").
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Khoury's defense was that Seastrand's injuries predated the accident, and
thus, he was not liable for damages related to those injuries.
The district court did not abuse its discretion by admitting testimony
by Dr. Gross because it was not outside the scope of his specialized
knowledge
To testify as an expert witness under NRS 50.275,
the witness must satisfy the following three
requirements: (1) he or she must be qualified in an
area of "scientific, technical or other specialized
knowledge" (the qualification requirement); (2) his
or her specialized knowledge must "assist the trier
of fact to understand the evidence or to determine
a fact in issue" (the assistance requirement); and
(3) his or her testimony must be limited "to
matters within the scope of [his or her specialized]
knowledge" (the limited scope requirement).
Hallmark v. Eldridge, 124 Nev. 492, 498, 189 P.3d 646, 650 (2008). These
requirements are analogous to the requirement in federal law that the
expert testimony "rests on a reliable foundation," which is that "the
knowledge underlying it has a reliable basis in the knowledge and
experience of the relevant discipline." Pyramid Techs., Inc. v. Hartford
Cas. Ins. Co., 752 F.3d 807, 813 (9th Cir. 2014) (internal quotation marks
omitted).
At trial, Dr. Gross testified that he was a board-certified
neurological surgeon with a fellowship in spinal biomechanics. He
regularly treats patients with "neck and back problems, including injuries
and other causes of disk problems, nerve problems, spinal cord problems."
When patients are first referred to him, he asks about their past history
and other medical issues that they have had. He then does a physical
examination, where if the patient appears to have a neck condition, he
tests the neck, head, arms, and hands and reviews films and tests that
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have been taken of the patient. Lastly, he uses the patient's past history
and the results of the physical examination to "come up with the best
diagnoses that match or correlate to all the findingskr so that "the
treatment recommendations ... [are] proper and correct, [and] rely on the
proper diagnosis."
Thus, Dr. Gross typically uses patient histories and physical
examinations to reach a diagnosis and decide whether neurological
surgery is the proper treatment for the patient's diagnosis. In doing so,
Dr. Gross tests the neck, head, arms, and hands. It follows, that in order
to rule out neurological surgery as a treatment, Dr. Gross must determine
the cause of the patient's symptoms and whether they result from
something not neurologically related. Therefore, we hold that Dr. Gross's
opinion that Seastrand's prior symptoms were "unrelated to the neck and
more likely related to the heart or anxiety or both" rested on the reliable
foundation of the knowledge and experience of Dr. Gross's neurological
surgery practice and was therefore within the scope of his specialized
knowledge.
Dr. Gross's opinion was disclosed in a supplemental expert report
Khoury argues that Dr. Gross was required to disclose his
opinion that Seastrand's prior injuries were unrelated to the neck and
more likely related to the heart or anxiety, or both, in an expert report but
failed to do so.
NRCP 16.1(a)(2)(B) requires an expert's report to "contain a
complete statement of all opinions to be expressed and the basis and
reasons therefor; the data or other information considered by the witness
in forming the opinions."
On September 29, 2012, Dr. Gross disclosed a supplemental
report apparently made at least in part in response to disclosures by
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Khoury's expert witnesses. Khoury's experts had made disclosures of
their opinions of Seastrand's past medical records, including records from
a doctor's visit Seastrand made on October 27, 2008. In his supplemental
report, Dr. Gross stated that he had reviewed the past medical records,
including the records from an October 27, 2008, doctor's visit and
summarized that the records revealed that Seastrand had been "having
left chest wall pain associated with numbness and tingling bilaterally in
both arms." Dr. Gross then stated, apparently quoting directly from
Seastrand's medical records, that the doctor's assessment of Seastrand
during that visit "was qattypical chest pain, numbness, and anxiety."
Later in the report, Dr. Gross directly addressed an opinion
proffered by Dr. John Siegler, one of Khoury's experts, of Seastrand's
October 27, 2008, visit. Dr. Siegler had opined that Seastrand's doctor
visits in 2007, where she was seen for back pain flare-ups, and, in 2008,
where she "was seen for numbness and tingling radiating to both arms
and shooting pain into the left arm," indicated that she had a "documented
history of cervical and lumbar pain." Dr. Gross indicated that he
disagreed with Dr. Siegler's opinion, stating that Dr. Siegler had
"conveniently omit[ted] the fact that the records note that the episode of
tingling to the upper extremities was related to chest pain and stress."
By disagreeing with Dr. Siegler's opinion that Seastrand had a
documented history of cervical and lumbar pain, Dr. Gross proffered an
opinion that Seastrand's symptoms during her October 27, 2008, doctor's
visit were unrelated to the neck. He also appeared to endorse the doctor's
assessment of Seastrand during her October 27, 2008, visit that her
symptoms were related to chest pain and stress, by chiding Dr. Siegler for
"conveniently omit[ting] th[is] fact." Therefore, we hold that the district
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court did not abuse its discretion by allowing Dr. Gross to testify as to his
opinion that Seastrand's prior injuries were unrelated to her neck. 4
The district court did not abuse its discretion by excluding evidence of the
amount Seastrand's medical providers received for the sale of her medical
liens
At trial, Khoury attempted to introduce evidence of the
amount Seastrand's medical providers received for the sale of her medical
liens to a third party. Khoury sought to admit the evidence to prove the
reasonable amount of Seastrand's medical costs. The district court refused
to admit the evidence, finding that under the collateral source rule, it was
per se inadmissible. Khoury now argues that the district court abused its
discretion. 5
4Khoury also appears to argue that Dr. Gross's expert reports were
not timely disclosed and should have been excluded on that basis.
However, Khoury does not specifically argue that any particular report
was made outside NRCP 16.1(a)(2)(C)'s time limitations. Rather, he
merely sets forth NRCP 16.1(a)(2)(C)'s time limitations without stating
which report was untimely under which time limit. We thus decline to
consider his argument. See Edwards v. Emperor's Garden Rest., 122 Nev.
317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (stating that this court
"need not consider. . . claims" that are not "cogently argue[d]" Or
supported by "relevant authority").
°Khoury also argues that the district court erred by refusing to allow
him to examine Seastrand's medical providers as to the reasonable value
of Seastrand's medical care. However, this is a misrepresentation of the
issue that was presented to and ruled upon by the district court. Khoury
actually moved to limit Seastrand's presentation of past medical special
damages at trial to amounts actually paid by or on behalf of Seastrand,
not to examine Seastrand's treatment providers about the reasonable
value of Seastrand's medical care. Because the arguments Khoury makes
on this issue in his brief were not raised before the district court, Khoury
has waived his right to make them on appeal. See Old Aztec Mine, Inc. v.
Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the
continued on next page...
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Evidence of the sale of Seastrand's medical liens is irrelevant to prove
the reasonable value of Seastrand's medical costs
Evidence of payments showing medical provider discounts, or
write-downs, to third-party insurance providers "is irrelevant to a jury's
determination of the reasonable value of the medical services and will
likely lead to jury confusion." Tri-Cty. Equip. & Leasing v. Klinke, 128
Nev. 352, 360, 286 P.3d 593, 598 (2012) (Gibbons, J., concurring). This is
because " [t]he write-downs reflect a multitude of factors mostly relating to
the relationship between the third party and the medical provider, and not
necessarily relating to the reasonable value of the medical services." Id.
Here, assuming that Seastrand's medical providers sold her
liens to a third party for less than their face value, they are functionally
similar to a write-down made to a third-party insurer. In both instances
the medical provider negotiates with a third party to receive less than
what they charged a patient to provide medical care. Therefore, in line
with the discussion of write-downs in the concurrence in Tri-County
Equipment SE Leasing, which is analogous to the present issue, we hold
that evidence regarding the sale of medical liens is likewise irrelevant to a
jury's determination of the reasonable value of medical services provided.
Thus, the district court did not abuse its discretion by excluding such
evidence.
...continued
trial court, unless it goes to the jurisdiction of that court, is deemed to
have been waived and will not be considered on appeal.").
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The district court abused its discretion by excluding evidence of Seastrand's
medical liens to establish bias
Khoury argues that the district court abused its discretion by
excluding evidence of Seastrand's medical liens to prove bias on the part of
Seastrand's treating physicians that testified at trial. Khoury contends
that the district court incorrectly excluded that evidence under the
collateral source rule.
Evidence of the existence of medical liens to prove bias does not
invoke the collateral source rule
"The collateral source rule provides that if an injured party
received some compensation for his injuries from a source wholly
independent of the tortfeasor, such payment should not be deducted from
the damages which the plaintiff would otherwise collect from the
tortfeasor." Proctor v. Castelletti, 112 Nev. 88, 90 n.1, 911 P.2d 853, 854
n.1 (1996) (internal quotation marks omitted) This court has also created
"a per se rule barring the admission of a collateral source of payment for
an injury into evidence for any purpose." Id. at 90, 911 P.2d at 854 (second
emphasis added). This is because of the danger that "the jury will misuse
the evidence to diminish the damage award." Id. at 91, 911 P.2d at 854.
The question of whether evidence of a medical lien implicates the
collateral source rule does not appear to have been considered before in
Nevada.
"[A] medical lien refers to an oral or written promise to pay
the medical provider from the plaintiff/patient's personal injury recovery."
State Bar of Nev. Standing Comm'n on Ethics and Profl Responsibility,
Formal Op. 31, (2005), available at http://nvbar.org/wp-content/uploads/
Opinion-31-Client-Funds-Reissued_4-1-15.pdf (last visited May 9, 2016)
(internal quotation marks omitted). Thus, a medical lien represents
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something that the plaintiff has personally paid for his or her treatment,
not compensation that a third party has paid to the plaintiff. Therefore,
we hold that evidence of the existence of medical liens to prove bias does
not invoke the collateral source rule. 6
The district court's error was harmless
To be reversible, an error must be prejudicial and not
harmless. NRCP 61. To demonstrate that an error is not harmless, a
party "must show that the error affects the party's substantial rights so
that, but for the alleged error, a different result might reasonably have
been reached." Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778
(2010).
Here, the probative value of the lien evidence is limited as to
the issue of bias. The terms of Seastrand's medical liens indicate that she
would owe the money to her medical providers whether or not she was
successful in the lawsuit. Seastrand's medical providers were also paid for
the time they spent preparing for trial and testifying in court, and Khoury
was able to cross-examine the medical providers about any bias that
resulted from these payments. In addition to the testimony of Khoury's
two treatment providers, evidence was also presented by Seastrand's
expert witnesses as to the causation of Seastrand's injuries Lastly,
Khoury has not presented any arguments or evidence to support a
contention that the verdict in this case was close and that allowing him to
6 However, we caution that this holding may not be used as a
"backdoor" by parties to question a treatment provider about whether and
to what amount it would write-down the amount of the medical lien in the
event that the plaintiff loses his or her lawsuit. Such evidence could be
used by the jury to diminish the damage award and would thus invoke the
collateral source rule.
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use evidence of Seastrand's medical liens to establish bias in Seastrand's
treatment providers would have resulted in a different verdict. Therefore,
we hold that the district court's error was harmless.
The district court did not abuse its discretion by refusing to grant a new
trial following Seastrand's use of the word "claim" during opening
arguments
Khoury argues that by using the word "claim" one time in her
opening arguments, Seastrand improperly informed the jury that he had
insurance coverage.
During opening arguments, Seastrand's attorney made the
following statement in regard to a rollover auto accident in which
Seastrand was involved in in 1981:
But you'll hear from [Seastrand] and she'll
tell you, yeah, in that rollover I was the passenger
and I wasn't hurt. I went to the ER and the ER
physicians checked me out, and then I went to a
holistic doctor one or two times and then I didn't
have any problems. I didn't make a claim. I
didn't do anything like that. I didn't have any
issues with it.
(Emphasis added.) This is the only time that Seastrand mentioned the
word "claim" during opening arguments.
Khoury bases his argument on a mistaken belief that the word
"[c]laim' is uniquely an insurance term." However, claim has many other
meanings. Black's Law Dictionary, for instance, defines claim as, among
other things, "[a] demand for money, property, or a legal remedy." Claim,
Black's Law Dictionary (8th ed. 1999). While this could mean an
insurance claim, in context it could just as easily mean a claim of relief in
a court of law. Furthermore, Seastrand's use of the word claim was in
regard to a 1981 car accident. Thus, even if the jury did believe Seastrand
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was talking about an insurance claim, it would only have indicated
whether Seastrand or another party in the 1981 accident was insured, not
whether Khoury was insured in the current case. Therefore, we hold that
the district court did not abuse its discretion by refusing to grant Khoury's
motion for a mistrial.
The district court abused its discretion by awarding costs to Seastrand
without stating a basis for its decision
NRS 18.005, which defines recoverable costs, allows the
recovery of "[r] easonable fees of not more than five expert witnesses in an
amount of not more than $1,500 for each witness, unless the court allows a
larger fee after determining that the circumstances surrounding the expert's
testimony were of such necessity as to require the larger fee." NRS
18.005(5) (emphasis added); see also Gilman v. State, Bd. of Veterinary
Med. Exam'rs, 120 Nev. 263, 272-73, 89 P.3d 1000, 1006 (2004) (observing
that a district court has discretion to award more than $1,500 for an
expert witness's fees). When a district court awards expert fees in excess
of $1,500 per expert, it must state the basis for its decision. Frazier v.
Drake, 131 Nev., Adv. Op. 64, 357 P.3d 365, 378 (Ct. App. 2015).
The district court awarded $42,750 as expert witness fees for
Seastrand's five expert witnesses. It did not state a basis for its award.
Khoury argues that because the district court awarded expert witness fees
that exceed $1,500 per witness, the district court abused its discretion
under NRS 18.005(5). However, Khoury ignores the second half of NRS
18.005ffi), which allows the district court to award a greater fee per expert
witness if it determines that the higher fee was necessary. Nonetheless,
because the district court awarded expert fees in excess of $1,500 without
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stating a basis for its decision, we hold that the district court abused its
discretion. 7
CONCLUSION
While it is permissible for a party to use a specific award
amount in questioning jurors regarding their biases towards large verdict
amounts, it is the duty of the district court to keep the questioning within
reasonable limits. Here, Seastrand's voir dire did not reach the level of
reversible error on the basis of jury indoctrination. Furthermore,
although the district court abused its discretion by dismissing jurors for
cause whose statements, when taken as a whole, indicated that they could
apply the law and the instructions of the court in deciding the verdict, this
was harmless error. Accordingly, the district court was within its
discretion in denying Khoury's motions for a mistrial and new trial on the
grounds related to the voir dire.
Next, the district court did not abuse its discretion by allowing
testimony from Dr. Muir because his opinions were formed during the
course of his treatment of Seastrand. The district court also did not abuse
its discretion by admitting the testimony of Dr. Gross because his
testimony was within the scope of his specialized knowledge and was
disclosed in a supplemental expert report. It also did not abuse its
7 Khoury also makes a one-sentence argument that because trial
preparation costs and costs for copies of medical records are not
specifically listed as recoverable under NRS 18.005, they are a routine
part of normal legal overhead, and the district court abused its discretion
by awarding them. Because Khoury provides no further analysis or
authority for his argument, we decline to consider this issue. See Edwards
v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288
n.38 (2006).
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discretion by excluding evidence of the amount that Seastrand's medical
liens were sold for because it was irrelevant to the issue of the reasonable
value of her medical care. However, it did abuse its discretion by
excluding evidence of the existence of Seastrand's medical liens for the
purpose of establishing bias in the testimony of her medical providers.
Nonetheless, this error was harmless. Therefore, we hold that the new
trial motion was properly denied. Lastly, the district court did not abuse
its discretion by refusing to declare a mistrial due to Seastrand's use of the
word "claim" in opening arguments because it did not improperly inform
the jury that Khoury was insured.
However, the district court did abuse its discretion by
awarding costs to Seastrand without stating a basis for its decision.
Therefore, we affirm in part, reverse in part, and remand to the district
court for further proceedings regarding costs.
1 '
J.
Saitta
We concur:
J.
Douglas ,
CiA24t J.
J.
Gibbons
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PICKERING, J., concurring:
While I concur in the result, I do not join the majority's
internally contradictory analysis of the medical provider lien sale
evidence. To be clear, Seastrand was uninsured, which gave her doctors
lien rights against her eventual recovery from Khoury. The evidence the
district court excluded was that one or more of Seastrand's doctors sold his
lien rights to a third party, presumably at a discount. Such a sale—
assuming evidence of it had been proffered (it was not)—did not result in a
discount to Seastrand. After the sale, Seastrand remained liable for the
full amount the lien secured. Her liability just ran to the third party to
whom the doctor sold the lien instead of to the doctor. Thus, this case does
not present the medical provider discount, or write-down, issue between
doctor and patient (or doctor and patient's insurer or benefit provider) that
has divided courts elsewhere. See, e.g., Howell v. Hamilton Meats &
Provisions, Inc., 257 P.3d 1130, 1138, 1142-43, 1146 (Cal. 2011) (holding
that a "plaintiff could recover as damages for her past medical expenses no
more than her medical providers had accepted as payment in full from
plaintiff and PacifiCare, her insurer," since costs must be incurred or paid
by a plaintiff or her insurer to be recoverable as damages) (citing
Restatement (Second) of Torts § 911 (1979)). It also does not implicate the
collateral source rule discussed in Howell since Seastrand, being
uninsured and fully liable, had no collateral source to which to look for
payment of her medical expenses.
As five members of the court held in Tr-County Equipment &
Leasing v. Klinke, 128 Nev. 352, 357-58 n.6, 286 P.3d 593, 596 n.6 (2012)
(5-2), whether evidence of pre-negotiated provider discounts is admissible
because it sets the outside limit of the special damages a plaintiff has
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incurred or paid, or excludable under the collateral source rule, is a legal
issue that is sufficiently nuanced and important that it should be left "for
a case that [actually] requires its determination." Two justices, writing
separately in Tr-County, would have reached and resolved the provider
discount issue, rejecting Howell. Id. at 597-99 (Gibbons and Cherry, JJ.,
concurring). Inexplicably, today's majority quotes language from the two-
justice Tri-County minority on the issue the Tr-County majority declined
to reach. See ante 22. But this case has even less to do with the provider-
discount/collateral-source-rule issue in Howell than Tr-County, for two
reasons. First, as the majority acknowledges, ante 24, "The terms of
Seastrand's medical liens indicate that she would owe the money to her
medical providers whether or not she was successful in the lawsuit." With
no provider discount to the plaintiff or her insurer, no question arises as to
whether the amounts billed by the provider were "incurred or paid,"
removing much of the rationale for the rule announced in Howell. Second,
Seastrand had no insurance. With no insurance and no provider-to-
patient discounts, the collateral source rule, on which the two-justice Tr-
County concurrence relied to reject Howell, does not apply, as today's
majority also recognizes. See ante 23-24 ("a medical lien represents
something that the plaintiff has personally paid for his or her treatment,
not compensation that a third party has paid to the plaintiff.").
Given all this, it is not clear to me why the majority feels it
necessary to address the relevance of provider discounts or write-downs.
The price a third party pays to buy a lien from a doctor depends more on
the third party's assessment of the plaintiffs chances in the litigation,
including the strength of the plaintiffs claim and the solvency of the
defendant, than the reasonable value of the doctor's services, and as such
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has so little probative value and so much potential for distraction as to be
excludable as irrelevant. I would resolve the relevance issue on this basis,
rather than confuse our law with what is, in this case, dictum drawn from
a minority opinion not joined by a majority of the justices on this court.
For these reasons, while I join the remainder of today's
opinion, I do not join and concur only in the result as to the medical lien
sale evidence.
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