Leavitt v. Siems

• Decision Date: 10 July 2014
• Docket Number: No. 59369.,59369.
• Citation: 330 P.3d 1,130 Nev. Adv. Op. 54
• Parties: Kami LEAVITT, Appellant, v. Jon L. SIEMS, M.D.; and Siems Advanced Lasik and Refractive Surgery Center, Respondents.
• Court: Nevada Supreme Court

330 P.3d 1

130 Nev. Adv. Op. 54

Kami LEAVITT, Appellant,

v.Jon L. SIEMS, M.D.; and Siems Advanced Lasik and Refractive Surgery Center, Respondents.

No. 59369.

Supreme Court of Nevada.

July 10, 2014.

Christensen Law Offices, LLC, and Thomas F. Christensen, Las Vegas, for Appellant.

Aiverson, Taylor, Mortensen & Sanders and Chelsea R. Hueth and David J. Mortensen, Las Vegas, for Respondents.

Before the Court En Banc.

OPINION

By the Court, CHERRY, J.:

This appeal principally challenges the defendant's use of expert testimony from the plaintiffs treating physician to explain a possible alternate cause of the plaintiff's medical condition. The district court admitted the treating physician's testimony even though the entirety of the testimony was not stated to a reasonable degree of medical probability. We conclude that the district court correctly applied our holding in Williams v. Eight Judicial District Court, 127 Nev. ––––, 262 P.3d 360 (2011), which clarified that a defense expert's alternative-causation testimony need not be stated to a reasonable degree of medical probability when being used to challenge an element of the plaintiffs claim.

We also take this opportunity to determine that ex parte communication with an opposing party's expert witness is improper. If such improper communication occurs, as it did in this case, a new trial is warranted if prejudice is demonstrated. Because the expert's testimony was not affected by the improper communication in this case, however, appellant Kami Leavitt has not demonstrated prejudice, and thus, the improper communication does not warrant a new trial.

We further address whether an employee's default may be used against an employer codefendant who is contesting liability. Because we conclude that it cannot, we affirm the district court's decision in this case.¹

FACTS

Leavitt met with respondent Jon L. Siems, M.D., for an initial consultation for Lasik corrective vision surgery. Leavitt noted on her patient intake form that she “always” had dry eyes. The same day, Dr. Siems performed Lasik corrective surgery on both of her eyes. After the surgery, Leavitt lost vision and experienced irritation; she later developed other ocular complications. In the following years, her eyes suffered from a number of conditions, including diffuse laminar keratitis (DLK) and epithelial defects.² Leavitt underwent treatment by many specialists.

Leavitt subsequently sued Dr. Siems, respondent Siems Advanced Lasik and Refractive Center, and a Siems Advanced Lasik employee, Dr. Kathleen Wall, asserting claims for medical malpractice and professional negligence. Dr. Siems and Siems Advanced Lasik answered, asserting affirmative defenses of contributory negligence or wrongful conduct and assumption of the risk. A default judgment was entered against Dr. Wall, who was served via publication and did not answer or appear in the district court.

The case went to trial against Dr. Siems and Siems Advanced Lasik. By that time, Leavitt was experiencing constant pain and burning in her eyes, had permanently lost visual function in her right eye, and had only a possibility of slightly better than legally blind vision in the left eye. At trial, defense counsel argued that Leavitt's eyes did not heal properly because she abused numbing eye drops after the surgery, exacerbating her eye problems. The defense argued that Leavitt's condition was consistent with eye drop abuse.

To support the eye-drop-abuse argument, defense counsel called one of Leavitt's treating physicians and expert witnesses, Dr. Stephen Hansen, M.D., an ophthalmologist, to the stand. Dr. Hansen testified that he had discharged Leavitt as a patient for noncompliance, explaining that Leavitt had requested numbing eye drops and he felt that she was stealing eye drops from his clinic because bottles went missing after several of her appointments. He testified that the use of the numbing eye drops may have caused her vision to deteriorate and contributed to her lack of improvement. He also felt that had she followed his directions, he could have returned her to her best corrective vision.

Leavitt, on the other hand, presented expert testimony that Dr. Siems failed to exercise the proper standard of care in his preoperative workup of the dry eye issue and by deciding to do the procedure on the same day. Her expert explained that Leavitt's deteriorating vision was not consistent with someone who abused numbing eye drops and that her subsequent procedures were all a result of the Lasik surgery and the ensuing inflammatory responses. Leavitt herself testified that, while she had been given numbing eye drops by a couple of doctors in the past, she stopped using the drops on the recommendation of one of her doctors. Leavitt stated that she never took numbing drops from a doctor's office without permission.

The jury returned a verdict for the defense, finding that Dr. Siems was not negligent and did not proximately cause damages to Leavitt. Leavitt filed a motion for a new trial, or alternatively, for judgment as a matter of law, based in part on what Leavitt argued was an improper drug-abuse defense and on the use of Dr. Hansen's testimony to establish an alternative cause of her condition without requiring that the testimony be stated to a reasonable degree of medical probability.

Dr. Siems moved for attorney fees after trial. Attachments to his motion contained line items for a conversation with Dr. Hansen's business, Shepherd Eye Center, regarding Dr. Hansen's testimony, four telephone conferences with Dr. Hansen, and four telephone conversations with Dr. Hansen's counsel. Based on this, Leavitt's counsel raised the issue that defense counsel was improperly directly communicating with one of their witnesses, Dr. Hansen, and his staff.

The motion for new trial, or alternatively, for judgment as a matter of law, was denied. The district court concluded that the purpose of the drug-abuse theory was to contradict Leavitt's theory of negligence and not to propose an independent alternative causation theory. The court thus determined that Dr. Hansen's testimony was permissible under Williams v. Eight Judicial District Court, 127 Nev. ––––, 262 P.3d 360 (2011), which provides that a defense expert's testimony regarding alternative causation need not be stated to a reasonable degree of medical probability when it is being used to controvert an element of the plaintiff's claim, rather than to establish an independent theory of causation.

After judgment on the jury verdict was entered, Leavitt filed a motion for final judgment in the district court, arguing that, because the default against Dr. Wall established her liability and the defense had admitted that Dr. Wall was an employee of Siems Advanced Lasik, liability therefore attached to Siems Advanced Lasik as Dr. Wall's employer, notwithstanding the jury verdict. The district court declined to impute Dr. Wall's liability to Siems Advanced Lasik. Leavitt appealed.

DISCUSSION

Admission of expert testimony

Leavitt argues that the district court did not properly apply our holding in Williams v. Eight Judicial District Court, 127 Nev. ––––, 262 P.3d 360 (2011), when the court concluded that Dr. Hansen's testimony regarding the numbing eye drops did not have to meet the reasonable-degree-of-medical-probability standard. Leavitt therefore argues that the district court erred in admitting Dr. Hansen's testimony and in denying her motion for a new trial or judgment as a matter of law.

We conclude that the district court correctly applied Williams. In Williams, we clarified when medical expert testimony must be stated to “ ‘a reasonable degree of medical probability.’ ” 127 Nev. at ––––, 262 P.3d at 367–68 (quoting Morsicato v. Sav–On Drug Stores, Inc., 121 Nev. 153, 157, 111 P.3d 1112, 1115 (2005)). We explained that the application of the reasonable-degree-of-medical-probability standard hinges on the purpose of the testimony. Id. at ––––, 262 P.3d at 368. “Any expert testimony introduced for the purpose of establishing causation must be stated to a reasonable degree of medical probability. However, defense experts may offer opinions concerning causation that either contradict the plaintiffs expert or furnish reasonable alternative causes to that offered by the plaintiff,” without having to meet that standard. Id. at ––––, 262 P.3d at 368.

This distinction exists because “when defense expert testimony regarding cause is offered as an alternative to the plaintiffs theory, it will assist the trier of fact if it is relevant and supported by competent medical research.” Id. at ––––, 262 P.3d at 367–68. Accordingly, once a plaintiffs causation burden is met, the defense expert's testimony may be used for either cross-examination or contradiction purposes without having to meet the reasonable-degree-of-medical-probability standard, so long as the testimony consists of competent theories that are supported by relevant evidence or research. Id. “This lowered standard is necessarily predicated on whether the defense expert includes the plaintiff's causation theory in his or her analysis.” Id. at ––––, 262 P.3d at 368.

Leavitt argues that Williams should not be applied in this case because that opinion issued after the close of trial. However, retroactivity is the default rule in civil cases. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 847, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring); United States v. Sec. Indus. Bank, 459 U.S. 70, 79, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982). The district court thus did not err in applying Williams to this case.

Dr. Hansen's testimony satisfied the requirements of Williams and was properly admitted

As to whether the district court properly applied our holding in Williams, Leavitt contends that the court erred in finding that Dr. Hansen's testimony was offered merely to contradict her expert's testimony because the drug-abuse theory...