Rives v. Farris
| Decision Date | 31 March 2022 |
| Docket Number | 80271, No. 81052 |
| Citation | 506 P.3d 1064 |
| Parties | Barry James RIVES, M.D.; and Laparoscopic Surgery of Nevada, LLC, Appellants/Cross-Respondents, v. Titina FARRIS; and Patrick Farris, Respondents/Cross-Appellants. Barry James Rives, M.D.; and Laparoscopic Surgery of Nevada, LLC, Appellants, v. Titina Farris; and Patrick Farris, Respondents. |
| Court | Nevada Supreme Court |
Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Appellants/Cross-Respondents.
Claggett & Sykes Law Firm and Micah S. Echols, Las Vegas; Hand & Sullivan, LLC, and George F. Hand, Las Vegas; Bighorn Law and Kimball J. Jones and Jacob G. Leavitt, Las Vegas, for Respondents/Cross-Appellants.
BEFORE THE SUPREME COURT, EN BANC.
Appellants appeal from a $6 million judgment, challenging several evidentiary rulings they claim warrant reversal and remand for a new trial. Respondents assert that because appellants did not move for a new trial in district court, they waived the issues, such that their assignments of error on appeal cannot provide the basis for a new trial. Respondents fail to present a convincing argument that the procedural bars they claim prohibit our review on the merits apply here. The plain language of our jurisdictional rules confirms that appellants are not required to file a motion for a new trial in district court to preserve their ability to request a new trial on appeal. As to the merits of appellants’ claims, we conclude that the district court abused its discretion by admitting evidence of another medical malpractice case against appellant Barry James Rives, M.D., as that evidence was not relevant for an admissible purpose, and any potential relevance was substantially outweighed by the evidence's fairly obvious prejudicial effect. As this evidentiary ruling was harmful, we reverse the judgment, vacate the attorney fees and costs order, and remand for a new trial.
Respondent Titina Farris suffered from back pain with pain and burning in her feet. She was diagnosed with uncontrolled diabetes causing neuropathy. In 2014, Farris was referred to appellant Barry James Rives. M.D., for swelling in her upper abdomen. Rives diagnosed Farris with a hernia, which he surgically repaired on two occasions, first in 2014 and second in 2015. During the second surgery. Rives noticed that part of Farris's colon was stuck in the mesh from the 2014 surgery. Rives freed the colon from the mesh; however, he caused two small holes in the colon, which he repaired with a stapling device. Farris had several problems following the 2015 surgery, including sepsis. Although a CT scan on July 5 and an x-ray on July 12 showed no signs of a leak in Farris's colon, a CT scan on July 15 showed a leak, which another surgeon corrected. But Farris's sepsis continued, and she eventually developed drop foot in both feet, hindering her ability to walk unassisted. Farris and her husband, respondent Patrick Farris (collectively "respondents"), filed this medical malpractice lawsuit against Rives and appellant Laparoscopic Surgery of Nevada LLC (collectively "appellants"), alleging that Rives fell below the standard of care in performing the surgery and monitoring Farris after, that Laparoscopic Surgery of Nevada LLC was vicariously liable for Rives's actions, and for loss of consortium.
In an unrelated matter, another patient, Vickie Center, sued Rives for malpractice related to her hernia surgery, which took place five months before Farris's surgery.
The same defense firm represented Rives in both the Farris and Center cases. In the Center case, Rives responded to an interrogatory that asked him to provide information concerning other lawsuits in which he was involved. One month later, Rives responded to a similar interrogatory request in the Farris case, and his attorney copied the interrogatory responses from the Center case without adding the Center case to the list of other suits.
Respondents’ counsel deposed Rives. At the deposition, counsel asked questions regarding the other cases Rives disclosed in his interrogatory response. Rives's responses did not mention the Center case, but defense counsel interjected with information about that case. Rives was then asked several questions regarding the Center case, and respondents’ counsel discussed the Center case with Center's counsel "weeks to months before the trial in" the Center case started.
Before the trial in this matter, respondents filed a pretrial motion for sanctions, contending that Rives intentionally concealed the Center case. Respondents asserted that they "had no reasonable opportunity to further investigate this critical and admissible information" and requested that the district court strike appellants’ answer. Appellants opposed, arguing that the omission was accidental and there was no prejudice to respondents. They also argued that the Center case was not admissible, as it was irrelevant, unduly prejudicial, misleading to the jury, and improper character evidence.
The district court held an evidentiary hearing on the motion, at which Rives testified that he relied on his counsel to prepare the interrogatory responses in the Farris case and conceded that he did not read them. The district court concluded that Rives "relied on counsel" to prepare the interrogatory responses and, thus, had "an intent not to read the interrogatories," which the court considered "intentional conduct" warranting an adverse-inference instruction.1 While the district court permitted respondents to introduce evidence of the Center case, it did not make an express ruling on its admissibility until trial.
At trial, respondents mentioned the Center case roughly 180 times in front of the jury. Appellants objected several times, on various grounds, including that the evidence was irrelevant and that the danger of unfair prejudice, confusion of the issues, or misleading the jury substantially outweighed the probative value of the Center case. While the district court sustained some objections, it often allowed respondents to point to the Center case in making arguments or questioning witnesses. Respondents used the Center case to imply that Rives should have known his behavior was negligent and hinted that Rives had a propensity to commit malpractice. Respondents elicited that Vickie Center lost her legs because of Rives's actions. The district court allowed an extended examination of Rives regarding whether he informed Center's counsel of the specifics of the Farris case and the extent of Vickie Center's similar injuries. Respondents also mentioned the Center case in their closing argument.
The jury returned its verdict, concluding that Rives negligently treated Farris, causing her injuries, and awarding respondents $13,640,479.90 in total damages. The district court reduced the jury's award of noneconomic damages to $350,000 pursuant to NRS 41A.035 and entered a judgment for a total of $6,367,805.52. The district court granted in part respondents’ motion for attorney fees and costs, awarding $821,468.66 consistent with NRCP 68 and NRS 7.095, or alternatively, as a sanction for Rives's discovery behavior. Appellants appeal from the judgment and the attorney fees and costs award, while respondents cross-appeal from the judgment to contest the district court's application of NRS 41A.035.
Appellants did not waive their right to seek reversal and remand for a new trial on appeal by not filing a motion for a new trial in district court
Appellants assert that the district court committed evidentiary errors warranting reversal and remand for a new trial. Respondents argue that by failing to file a motion for a new trial in district court, appellants waived their ability to request a new trial on appeal. Respondents contend that the failure to seek a new trial in district court deprives the court of the chance to consider and correct any errors and prevents this court from "conduct[ing] a proper review of whether the [d]istrict [c]ourt properly or improperly granted a new trial because there is no appealable order to review." They further argue that appellants "ask this Court to review, in the first instance, their arguments for a new trial, which contain factual issues and would convert this Court into a factfinder." We disagree.2
While we have not explicitly addressed whether a party must both object to trial rulings and file a motion for a new trial to preserve the party's ability to request a new trial on appeal, the plain language of our jurisdictional rule and the preserved error rule make it clear that a party is not required to file a motion for a new trial to preserve the party's ability to request such a remedy on appeal for harmful error to which the party objected. First, NRAP 3A(a) expressly provides that "[a] party who is aggrieved by an appealable judgment or order may appeal from that judgment or order, with or without first moving for a new trial." The rule thus contemplates this very situation. Second, it is well-established that a timely objection alone is sufficient to raise and preserve an issue for appellate review. See Thomas v. Hardwick, 126 Nev. 142, 155, 231 P.3d 1111, 1120 (2010) (); Landmark Hotel & Casino, Inc. v. Moore, 104 Nev. 297, 299, 757 P.2d 361, 362 (1988) (); see also NRS 47.040(1)(a) (); cf. In re J.D.N., 128 Nev. 462, 468, 283 P.3d 842, 846 (2012) (...
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...analysis. This argument was not included in the Martel employees’ briefs, so we decline to consider it. See Rives v. Farris , 138 Nev. Adv. Op. 17, 506 P.3d 1064, 1071 n.6 (2022) (explaining that we need not address arguments "raised for the first time at oral argument").3 The Martel employ......
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Martel v. HG Staffing, LLC
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Evans-Waiau v. Tate
...must move for a new trial in district court to preserve attorney-misconduct claims on appeal. We recently held in Rives v. Farris , 138 Nev. ––––, 506 P.3d 1064 (2022), that a party is not necessarily required to move for a new trial to preserve its trial error-based arguments or ability to......