Rish v. Simao
| Citation | 368 P.3d 1203 |
| Decision Date | 17 March 2016 |
| Docket Number | 59423.,59208,Nos. 58504,s. 58504 |
| Parties | Jenny RISH, Appellant, v. William Jay SIMAO and Cheryl Ann Simao, Individually and as Husband and Wife, respondents. Jenny Rish, Appellant, v. William Jay Simao and Cheryl Ann Simao, Individually and as Husband and Wife, Respondents. Jenny Rish, Appellant, v. William Jay Simao and Cheryl Ann Simao, Individually and as Husband And Wife, Respondents. |
| Court | Supreme Court of Nevada |
Lewis Roca Rothgerber Christie, LLP, and Daniel F. Polsenberg and Joel D. Henriod, Las Vegas; Rogers, Mastrangelo, Carvalho & Mitchell, Ltd., and Stephen H. Rogers, Las Vegas, for Appellant.
David T. Wall, Las Vegas; Eglet Prince and Robert T. Eglet and Robert M. Adams, Las Vegas, for Respondents.
Before HARDESTY, DOUGLAS and CHERRY, JJ.
, J.:
Respondents William Jay Simao and Cheryl Ann Simao (Simao) filed a motion in limine to preclude appellant Jenny Rish from presenting a low-impact defense in a personal injury case arising out of an automobile accident. Simao claimed our holding in Hallmark v. Eldridge, 124 Nev. 492, 500–02, 189 P.3d 646, 651–53 (2008)
, required the exclusion of low-impact evidence because Rish failed to retain a biomechanical expert to opine on the nature of the accident. In Hallmark, we held that a biomechanical engineer's testimony regarding whether the forces involved in a car accident could have caused the plaintiffs injury was without sufficient foundation to be admissible under NRS 50.275. 124 Nev. at 500–02, 189 P.3d at 651–53. Because Hallmark held that a biomechanical expert's testimony must have sufficient foundation to be admissible under NRS 50.275, not that a biomechanical expert's testimony must underlie all evidence of the alleged injury-causing accident, we conclude that the district court's order granting the motion in limine was in error as a matter of law.
Following eight alleged violations of the district court's pretrial order prohibiting a low-impact defense and violations of two additional pretrial orders, the district court struck Rish's answer as a sanction. Because the case-ending sanction order failed to satisfy the requirements of BMW v. Roth, 127 Nev. 122, 126, 252 P.3d 649, 652 (2011)
, we reverse and remand this matter for a new trial.
Rish and William Simao were involved in a car accident in which Rish rear-ended William Simao in stop-and-go traffic. The damage to the vehicles was not extensive. While an ambulance was called, both Rish and William Simao refused medical treatment at the scene. William Simao later alleged that the accident injured his head
and neck, causing him constant pain and requiring on-going medical treatment and procedures. Simao brought suit against Rish to recover damages for William's injuries and Cheryl's loss of consortium.
Before trial, Simao filed a motion in limine asking the district court to preclude Rish, her attorneys, her medical expert, Dr. David Fish, and her witnesses from testifying, arguing, or insinuating that the collision was too insignificant to have caused William Simao's injuries. Citing to Hallmark, 124 Nev. at 496–97, 189 P.3d at 649
, Choat v. McDorman, 86 Nev. 332, 335, 468 P.2d 354, 356 (1970), and Levine v. Remolif, 80 Nev. 168, 171–72, 390 P.2d 718, 719–20 (1964), Simao asserted that any argument or evidence of a low-impact accident should be barred because Rish had not retained a biomechanical engineer who could first testify that the forces imparted by the collision were too insignificant to cause the injury. On this basis, Simao also argued that photographs of the vehicles and repair invoices should likewise be excluded as irrelevant because, without supporting expert testimony, there was no reliable correlation between the extent of damage and the extent of injury, citing Hallmark, NRS 50.275, and Davis v. Maute, 770 A.2d 36, 40 (Del.2001).
Rish opposed the motion, arguing that physicians have always been permitted to consider the severity of the accident when formulating opinions and to opine on whether the force could have caused the injury. She further argued that none of the cases relied upon by Simao prohibit the defense from describing the accident as low impact, and that evidence of property damage was relevant, admissible, and not substantially prejudicial.
At the motion hearing, the district court found the extent of property damage to be relevant but nevertheless granted Simao's motion in its entirety because, "pursuant to the Hallmark case," Rish did not have "a witness who can lay the proper foundation" for Rish to advance a low-impact defense. Finding the result was required by Hallmark, the district court granted Simao's requests to prohibit Rish "from Raising a ‘Minor’ or ‘Low Impact’ Defense," and to prohibit Dr. Fish and other experts from "opin[ing] regarding biomechanics or the nature of the impact of the subject crash." The court further prohibited photographs of the parties' cars and property damage invoices.
Before and during the trial, Rish's trial counsel sought clarification of the district court's order in limine, voicing concerns that the order prevented the defense from offering any testimony showing the nature of the accident. The district court, stating that its order was clear, declined to clarify the order. During the trial, the court sustained eight objections by Simao to Rish's questions and evidence as violating the low-impact defense pretrial order.
During opening statements, and without objection from Simao, Rish's trial counsel described the accident by saying that Rish "was stopped behind [William Simao], who moved a few feet in front of her ...; [Rish] applied her brakes, only just not quite hard enough; and the accident follow[ed]." Rish's trial counsel also stated that no one in the accident claimed loss of consciousness, everyone refused help from the paramedics, and Rish drove away from the scene. Rish's trial counsel then attempted to play a portion of Rish's videotaped deposition. Simao objected. The district court's order indicated that the objection was sustained on hearsay grounds and because it contained testimony concerning "the nature of the accident."
Rish's trial counsel cross-examined three of Simao's physician experts. During cross-examination of the first doctor, Rish's trial counsel asked if he "kn[ew] anything about what happened to Jenny Rish and her passengers in this accident." Simao objected on relevancy grounds and referenced the low-impact defense pretrial order. The district court sustained the objection without comment from Rish.
Rish's trial counsel asked the second doctor if he "kn[e]w anything about the folks in Jenny Rish's car." Simao objected on relevancy grounds. A bench conference was held where Rish's trial counsel asked if the irrelevancy of his question had been addressed in a previous order. Simao briefly referenced the low-impact defense pretrial order, and the district court sustained the objection.
Finally, Rish's trial counsel asked the third doctor: "[y]ou know [William Simao] wasn't transported by ambulance?" After the doctor replied in the affirmative, Rish asked: "You know that Jenny Rish ... was lifted from the scene." Simao objected and asked that Rish's trial counsel be admonished for disregarding the low-impact defense pretrial order. The objection was sustained, and the jury was told to disregard the question. Simao later sought to make a record, outside the presence of the jury, as to Rish's trial counsel's violation. The district court indicated that it would consider a progressive sanction and suggested that Rish's trial counsel reread the order.
During Simao's cross-examination of Dr. Fish, Dr. Fish attempted to distinguish a case where he had causally related a patient's injury to her accident by stating, "Well, in this very significant accident, yes." Simao moved to strike most of the doctor's response, and the court instructed the jury to disregard all but the word "yes." On redirect of Dr. Fish, Rish's trial counsel asked how he reached the opinion that the accident did not cause William Simao's injuries. Dr. Fish stated that it was Simao objected and moved to strike, and the district court told the jury to disregard Dr. Fish's last phrase. Another exchange followed outside the presence of the jury, and Simao asked the court to give a presumption instruction to the jury as a sanction. The court ultimately instructed the jury that
Finally, during cross-examination of William Simao, Rish's trial counsel asked if the traffic was stop-and-go. Simao asked for a bench conference, and the district court precluded the question because it improperly suggested that the impact was minor. Rish's trial counsel then asked William Simao whether the paramedics had transported anyone from Rish's car. Simao objected, asked for a bench conference, and moved to strike Rish's answer. The district court granted the motion, entered a default judgment against Rish, and dismissed the jury.
Thereafter, the district court held a prove-up hearing, at which it limited each party to a short argument regarding damages and awarded William Simao $194,390.96 for past medical expenses; $1,378,209 for past pain, suffering, and loss of enjoyment of life; and $1,140,552 for future pain, suffering, and loss of enjoyment of life. It also awarded $681,286 to Cheryl Simao for loss of consortium and attorney fees in the amount of $1,078,125. In all, the awards against Rish totaled nearly $4.5 million.1 This appeal followed.
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