Williams v. Lasko, D.D.S. C/W 59516 ( 2014 )

disturb that decision absent palpable abuse." Nelson v. Heer, 123 Nev.
217, 223, 163 P.3d 420, 424-25 (2007) (internal quotation omitted).
Here, the jury found that respondents did not breach the duty
of care and returned a verdict in favor of respondents. Appellant argues
that she presented competent expert testimony in support of her claim
that respondents breached the duty of care, but that respondents
presented no competent evidence in their defense as their expert's
standard of care testimony was not stated to a reasonable degree of
medical probability. Appellant contends that the district court
consequently should have granted her motion for judgment as a matter of
law because the evidence overwhelmingly established that respondents
breached the duty of care.
Expert testimony on the standard of care in a medical
malpractice suit must be made to a reasonable degree of medical
probability. Morsicato v. Say-On Drug Stores, Inc., 121 Nev. 153, 158, 111
P.3d 1112, 1116 (2005). This testimony must express a probability and
not speculation or a mere possibility. Id. at 157, 111 P.3d at 1115; see
Williams v. Eighth Judicial Dist. Court, 127 Nev. , n.8, 262 P.3d
360, 368 n.8 (2011) (stating that probability requires greater than a 50-
percent likelihood and observing that Morsicato reversed a district court
judgment where an expert could not testify that his theory of causation
was more likely than not the factual cause of the plaintiffs injuries).
Here, respondents' expert testimony did not indicate its degree
of certainty, and its context did not clearly illuminate whether it was
founded on reasonable medical probability. Based on our review of the
record, we conclude that the district court abused its discretion in failing
to strike• this testimony, and appellant should thus have been granted a
2
new trial." See Morsicato, 121 Nev. at 159, 111 P.3d at 1116. Therefore,
we reverse the district court's judgment, its order denying appellant's
motion for a new trial, and its order awarding costs, and we remand this
matter to the district court for a new trial on the issues of the standard of
care and causation. Bower v. Harrah's Laughlin, Inc., 125 Nev. 470, 494-
95, 215 P.3d 709, 726 (2009), modified on other grounds by Garcia v.
Prudential Ins. Co. of Am., 129 Nev. , 293 P.3d 869 (2013) (noting that
a costs award to the prevailing party will be reversed when the judgment
in favor of that party is reversed).
It is so ORDERED.
c416..A. J.
Hardesty
J.
J.
'Because the jury could have rejected appellant's expert's theory
that respondents breached the standard of care even without respondents'
expert's testimony, we cannot conclude that appellant is entitled to
judgment as a matter of law on the standard of care. See Banks v. Sunrise
Hosp., 120 Nev. 822, 839, 102 P.3d 52, 64 (2004) (explaining that where
reasonable people could reach different inferences based on the facts, the
matter is one of fact for the jury, and the district court should not grant a
judgment as a matter of law). We likewise perceive no error in the district
court's decision to deny judgment as a matter of law on causation. See
Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 362, 212 P.3d 1068, 1077
(2009) (providing that a judgment as a matter of law may be entered when
"the evidence is so overwhelming for one party that any other verdict
would be contrary to the law") (internal quotation marks omitted).
SUPREME COURT
OF
NEVADA
3
(0) I947A
cc: Hon. James M. Bixler, District Judge
Stephen E. Haberfeld, Settlement Judge
Prince & Keating, LLP
Lauria Tokunaga Gates & Linn, LLP/Las Vegas
Eighth District Court Clerk