Burrows v. Riley

• Decision Date: 19 January 2018
• Docket Number: No. 71350,71350
• Parties: JAMES BURROWS, Appellant, v. MARK RILEY, INDIVIDUALLY; AND ARS INVESTMENT HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, D/B/A YES AIR CONDITIONING & PLUMBING, Respondents.
• Court: Nevada Court of Appeals

JAMES BURROWS, Appellant, v. MARK RILEY, INDIVIDUALLY; AND ARS INVESTMENT HOLDINGS, LLC,A LIMITED LIABILITY COMPANY,D/B/A YES AIR CONDITIONING & PLUMBING, Respondents.

No. 71350

COURT OF APPEALS OF THE STATE OF NEVADA

January 19, 2018

ORDER OF AFFIRMANCE

James Burrows appeals from an order granting defendants' motion to strike plaintiff's expert report and opinions, order granting defendants' motion to strike plaintiff's fifth amended 16.1 disclosures, order denying plaintiff's motion to admit photographs and video evidence, order denying plaintiff's motion for new trial, and final judgment. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.¹

Respondent Mark Riley, while acting in his employment capacity with ARS Investment Holdings. LLC (collectively ARS), was involved in a motor vehicle accident with Burrows in a gas station parking lot.² Burrows sued Riley and ARS, alleging negligence, which culminated in a bifurcated six-day trial determining liability. During the trial, five witnesses testified: Carla Bywaters, an eyewitness to the accident;Burrows; Riley; an ARS manager; and an ARS representative. The jury returned a defense verdict. Burrows appeals the final judgment and also argues that the district court abused its discretion when it ruled against him in several pre-trial orders and an order denying his motion for a new trial.

First, we consider whether the district court abused its discretion when it granted ARS's motion to strike the reports and opinions of Burrows' accident reconstruction expert, William N. Morrison,³ finding that Morrison's testimony would not assist the jury. "The threshold test for the admissibility of testimony by a qualified expert is whether the expert's specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue," Townsend v. State, 103 Nev. 113, 117, 734 P.2d 705, 708 (1987); see NRS 50.275. "An expert's testimony will assist the trier of fact only when it is relevant and the product of reliable methodology." Hallmark v. Eldridge, 124 Nev. 492, 500, 189 P.3d 646, 651 (2008) (citations omitted). In determining whether an expert's opinion is based upon reliable methodology, the court considers, among other things, whether the opinion is "based more on particularized facts rather thanassumption, conjecture, or generalization." Id. at 500-01, 189 P.3d at 651-52.

Expert testimony that "impermissibly encroaches on the trier of fact's province" should be properly excluded. In re Assad, 124 Nev. 391, 400, 185 P.3d 1044, 1050 (2008). And expert testimony concerning a witness' credibility improperly invades the jury's province. See Townsend, 103 Nev. at 118-19, 734 P.2d at 709; Rowland v. Lepire, 99 Nev. 308, 312, 662 P.2d 1332, 1334 (1983) (noting that it is exclusively within the province of the trier of fact to weigh evidence and pass on credibility of witnesses and their testimony). This court reviews a district court's decision to admit expert testimony for an abuse of discretion. See Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014).

Here, the district court did not err in striking Morrison's reports and opinions because they would not have assisted the jury, were speculative and conjectural, and would have improperly invaded the jury's province. First, in his investigation, Morrison did not conduct any experiments, calculations, or any other specialized analysis that resulted in information beyond a jury's common knowledge. Second, Morrison's opinions were speculative and conjectural because he did not know Bywaters' height when he created the demonstrative video purporting to show her line of sight. Third, Morrison's testimony and the demonstrative video would have exceeded the scope of an expert's testimony because they inappropriately challenged Bywaters' credibility by concluding that "her line of sight was obscured as she [] testified to." Specifically, this proposed testimony would have improperly invaded the jury's province by effectively telling (and showing) the jury that Bywaters could not have seen what shesays she saw. Therefore, we conclude that the district court did not err in granting ARS's motion to strike Burrows' expert.

Second, we consider whether the district court abused its discretion by denying Burrows' motion to admit the photographs and demonstrative video evidence taken by Morrison and/or to allow Morrison to testify as a lay witness to authenticate that evidence. "We review a district court's decision to admit or exclude evidence for an abuse of discretion . . . ." Frei ex rel. Litem v. Goodsell, 129 Nev. 403, 408, 305 P.3d 70, 73 (2013) (citation omitted). Further, this court reviews the erroneous exclusion of evidence for harmless error. McCourt v. J.C. Penney Co., Inc., 103 Nev. 101, 103, 734 P.2d 696, 698 (1987). We conclude that the district court did not abuse its discretion because it did not exclude any of the contested evidence—it merely required Burrows to lay the appropriate foundation before the evidence would be admitted at trial. The parties stipulated to most of the photos and to the use of Google Earth, which provided a detailed vantage point of the accident scene to assist the jury. Burrows also laid proper foundation for several of the photos not stipulated to and conducted a voir dire of Bywaters regarding whether the demonstrative video accurately reflected her line of sight. Therefore, the court did not err. But even if the exclusion had been in error, Burrows has not demonstrated that he was substantially prejudiced by the district court's denial to pre-admit the disputed photos and video, so any error would have been harmless.

Third, we consider whether the district court erred by "informing the jury that entering a verdict in favor of the plaintiff would cause them to return in approximately one month for a four week period to hear the damages portion of the trial." To begin, the record reflects that thedistrict court said that "depending on what happens in the case" the jury may have to return and did not mention the plaintiff at all in this context. What's more, Burrows specifically asked the district court to notify the jury about the four-week break and did not object when the court did as he himself requested. See Cottonwood Cove Corp. v. Bates, 86 Nev. 751, 753, 476 P.2d 171, 172 (1970) ("It has long been a rule of this Court that a party on appeal cannot assume an attitude or adopt a theory inconsistent with or different from that taken at the hearing below." (quoting County of Clark v. State of Nev., 65 Nev. 490, 199 P.2d 137 (1948))). Therefore, he is estopped from raising this issue on appeal because he invited the error, if any, by asking the district court to instruct the jury. See Rhyne v. State, 118 Nev. 1, 9, 38 P.3d 163, 168 (2002) (concluding defendant "estopped from raising claim on appeal because he invited the error by asking the district court to allow him to call the witness").

Last, we consider whether the district court abused its discretion in denying Burrows' motion for new trial, or in the alternative, motion to alter or amend judgment. Burrows offers several arguments to support reversal: substantial evidence did not support the jury verdict, the district court failed to properly instruct the jury, the district court failed to resolve the inconsistencies in the jury's verdict pursuant to NRCP 49(b), the jury disregarded the jury instructions, two juror affidavits supported the contention that the jury did not understand the court's instructions, and if it had, it would have found the parties 50/50 liable, and the jurors' affidavits should be considered to support a new trial because they reflect what physically transpired in the jury room and the court could independently verify their content. However, all of Burrows' arguments fail.

"The decision to grant or deny a motion for a new trial rests within the sound discretion of the trial court, and this court will not disturb that decision absent palpable abuse." Nelson v. Heer, 123 Nev. 217, 223, 163 P.3d 420, 424-25 (2007) (quoting Edwards Indus. v. DTE/BTE Inc., 112 Nev. 1025, 1036, 923 P.2d 569, 576 (1996)). Indeed, this court will not overturn a jury's verdict unless it is "clearly erroneous when viewed in light of all the evidence presented." Frances v. Plaza Pac. Equities, Inc., 109 Nev. 91, 94, 847 P.2d 722, 724 (1993). But a new trial may be granted for "[m]anifest disregard by the jury of the instructions of the court." NRCP 59(a)(5). When determining whether a new trial should be granted pursuant to NRCP 59(a)(5), this court must be "able to declare that, had the jurors properly applied the instructions of the court, it would have been impossible for them to reach the verdict which they reached." Weaver Bros., LTD. v. Misskelly, 98 Nev. 232, 234, 645 P.2d 438, 439 (1982). However, if there is conflicting evidence and a reasonable person could draw different inferences from the facts, the question is one of fact for the jury. See Banks ex rel. Banks v. Sunrise Hosp., 120 Nev. 822, 840, 102 P.3d 52, 64 (2004) (noting the parties presented conflicting testimony and the jury was free to conclude that one side was more persuasive than the other).

First, substantial evidence supported the jury verdict through Bywaters' and Riley's testimony, with the assistance of the Google Earth aerial photography and other admitted photographic evidence. Seyden v. Frade, 88 Nev. 174, 177, 494 P.2d 1281, 1283 (1972) (holding this court will not disturb a judgment supported by substantial evidence unless it is clear that a wrong conclusion has been reached upon all the evidence). There was sufficient evidence for the jury to assess the credibility of the witnesses and determine liability, and thus the verdict was supported by substantialevidence. See Sierra Pac. Power Co. v. Day, 80 Nev. 224, 229, 391 P.2d 501, 503 (1964) (concluding "any case where no irregularity or error...