Sanders v. Sears-Page
| Decision Date | 16 July 2015 |
| Docket Number | No. 62792.,62792. |
| Citation | 131 Nev. Adv. Op. 50,354 P.3d 201 |
| Parties | Toni SANDERS; and Robert Sanders, as Husband and Wife, Appellants, v. Risa SEARS–PAGE, Respondent. |
| Court | Nevada Court of Appeals |
Seegmiller & Associates and Clark Seegmiller and Robert L. English, Las Vegas, for Appellants.
Atkin Winner & Sherrod and Thomas E. Winner and Andrew D. Smith, Las Vegas, for Respondent.
Before GIBBONS, C.J., TAO and SILVER, JJ.
When a juror is biased against a party, that juror must be struck from the jury. In this appeal, we consider whether the district court erred in declining to strike an empaneled juror whose background experience implied bias but who asserted he could be impartial. We also consider the district court's decisions to invite challenges for cause with the juror present and to allow a newly discovered document to be entered into evidence and testified to on the final day of trial. We hold the district court erred in these respects and, accordingly, we reverse and remand for a new trial.
This appeal arises from a jury trial on a personal injury claim for damages following a 2009 car accident. Respondent Risa Sears–Page made a right turn from a left-hand lane and hit appellant Toni Sanders' car. Initially, the accident appeared minor as neither party claimed injuries at the scene. A few days later, Sanders purportedly began experiencing neck pain that worsened over time. Sanders and her husband, appellant Robert Sanders, sued Sears–Page for negligence to recover damages, including medical expenses. Sears–Page admitted liability but denied causation and damages.
Sanders' injuries
The central issues at trial involved whether the accident had caused or contributed to Sanders' injury and, if so, whether Sanders' claimed medical expenses were reasonable. Sanders, who had chronic back pain, had previously experienced neck pain in 2004 from a bone spur. But she denied having neck pain in the years immediately preceding the accident, and two of her treating physicians testified the accident with Sears–Page caused Sanders' 2009 neck pain. Both doctors also testified Sanders' medical procedures and surgeries following the accident to alleviate pain were reasonably necessary.
To support her claimed damages, Sanders presented medical records and bills from Nevada Spine Clinic. Those records were generated primarily by treatment from Doctors Jaswinder Grover, Babuk Ghuman, and Jorg Rosier, but many records were generated by other doctors and medical professionals at Nevada Spine Clinic. Of the people who treated Sanders at Nevada Spine Clinic, only Dr. Grover testified at trial. Dr. Grover was one of several doctors at that clinic who treated Sanders for chronic back pain before the 2009 accident and also treated her for neck pain after the accident, and testified all of Sanders' medical bills from Nevada Spine Clinic were reasonable.
Sears–Page denied Sanders' injuries occurred as a result of the automobile accident. Instead, Sears–Page asserted Sanders' symptoms arose from a preexisting degenerative medical condition. In opening statements, Sears–Page emphasized that Dr. Grover “sold [Sanders] spine surgery” and the doctors at Nevada Spine Clinic encouraged unnecessary surgery and medical procedures for their own financial gain. Sears–Page argued she should not have to pay for Sanders' unnecessary medical expenses, which were purposely inflated by Nevada Spine Clinic.
During trial, Sears–Page's retained medical experts, Dr. Joseph Schifini and Dr. Derek Duke, both testified Sanders' medical records showed a preexisting degenerative condition that developed over the course of several years, and her post-accident medical records were devoid of trauma to her neck. Both experts opined the accident did not cause Sanders' medical condition or contribute to her current neck pain. Dr. Duke further noted Sanders' medical history prior to the accident included treatment for neck pain in 2004 and 2009, which supported his opinion that Sanders' degenerative condition alone caused her current neck pain.
Both experts testified Sanders' surgery and medical procedures performed by Nevada Spine Clinic doctors were unnecessary and unreasonable. Further, they emphasized the clinic doctors' fees were significantly higher than average doctor's fees, Sears– Page argued Nevada Spine Clinic's physicians' practice of referring patients (like Sanders) to medical facilities owned by the physicians not only benefited the physicians financially, but also inflated Sanders' medical bills.
After opening statements and the testimony of Robert Sanders, Juror 9 notified the district court he previously had been a patient of Dr. Ghuman's at Nevada Spine Clinic, Because neither party mentioned Nevada Spine Clinic or Dr. Ghuman by name during voir dire, and the attorneys did not question Juror 9 regarding the names of his treating physicians for the back pain he disclosed during voir dire, Juror 9 was unaware of the connection until after opening statements.
Outside the presence of the other jurors, the district court and the attorneys questioned Juror 9. Juror 9 acknowledged several doctors at Nevada Spine Clinic treated him for a herniated disc
. After an initial consultation with Dr. Ghuman, he was ultimately treated by other doctors at Nevada Spine Clinic who did not treat Sanders. When one of those doctors advised Juror 9 back surgery was “inevitable” and encouraged him to schedule surgery, Juror 9 sought a second opinion from a doctor at a different facility regarding back surgery. Juror 9 followed the advice of the second doctor and opted for nonsurgical treatments.
Juror 9 stated he could be impartial “without a doubt,” would “base [his] decision on facts,” and would not “be inclined to give more credibility” to the conclusions of the doctors at Nevada Spine Clinic. When specifically questioned whether his experience might bias him against the doctors at Nevada Spine Clinic, however, Juror 9 told the court, “I don't—I don't think so” and “I think I can keep an open mind.” When Juror 9 was questioned regarding his ability to be impartial when viewing Nevada Spine Clinic's billing records, Juror 9 stated he had no problem with the billing from the clinic because he “didn't pay the bills anyway,” referring to his insurance. Juror 9 advised the court he viewed “surgery as a last resort” and had “never been real enamored with having surgery.” Additionally, Juror 9 stated he conducted “some research on fusion versus disc replacement” when deciding whether to have back surgery, and stated, “I kind of know which way I'm personally going to be leaning ... [a]s far as my case.” Neither the judge nor the attorneys asked Juror 9 about the nature or extent of his independent research.
With Juror 9 still present, the district court asked the parties if either wished to challenge Juror 9 for cause. Sears–Page stated she did not, but Sanders challenged Juror 9 for cause. The district court then asked Juror 9 to leave the courtroom, and Sanders argued for striking Juror 9. Although Sears–Page told the court the juror appeared to be impartial, Sears–Page also acknowledged there was an issue of bias. Additionally, Sears–Page characterized Sanders' arguments for striking Juror 9 as “good,” and suggested the district court make Juror 9 an alternate instead of removing him for cause. The court denied Sanders' motion to strike Juror 9 for cause, stating Juror 9's answers demonstrated his ability to be impartial. Juror 9 later became the foreman of the jury.
Prior to trial, both parties sought medical records from Dr. Pollard, who was unaffiliated with Nevada Spine Clinic and treated Sanders between 2004 and the accident, but Dr. Pollard only provided incomplete medical records in response. Both sides demanded Dr. Pollard produce additional records prior to the close of discovery, but he failed to comply with those requests. Neither party sought an order to show cause for contempt from the discovery commissioner regarding this issue, Instead, the parties proceeded to trial with the incomplete records.
During the week of trial, however, Sears–Page threatened Dr. Pollard with contempt if the complete records were not produced. Then, on the morning of the last day of trial, an unidentified person dropped off a box of documents at the courthouse to a member of Sears–Page's legal team. One of the documents was allegedly a portion of a medical record from a visit Sanders made to Dr. Pollard in 2005. That document stated Sanders suffered from “spinal degenerative joint disease
and upper cervical area with bone spur.” Yet, Sanders testified in her case-in-chief that she had not sought treatment for neck pain in 2005.
Sears–Page sought to introduce this document into evidence and proposed to the district court that Dr. Duke, one of Sears–Page's retained medical experts, authenticate the document. Sanders objected to the document's admission, but the district court admitted the document as exhibit 62 because the court felt this result was fair given Sears–Page's aggressive tactics to obtain the records during the trial proceedings.
Dr. Duke viewed exhibit 62 for the first time on the witness stand. He testified the document looked like a typical medical record. He then reviewed the document and opined that it supported his theory that Sanders had a chronic, degenerative disease that predated the 2009 automobile accident and was the sole cause of her neck pain.
The jury unanimously found for Sears–Page. Sanders appeals.
The issues we consider on appeal are whether the district court erred in (1) failing to strike Juror 9 for cause, (2) inviting challenges for cause while Juror 9 was present, (3) admitting exhibit 62, and (4) allowing Dr. Duke to give undisclosed opinions based on exhibit 62.1 We agree that in all four instances the district court erred and its errors are reversible.2
Sanders' challenge to Juror 9 for cause
Sanders...
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