Sicor, Inc. v. Hutchison, No. 59506.

Docket NºNo. 59506.
Citation127 Nev. Adv. Op. 82, 266 P.3d 608
Case DateDecember 15, 2011
CourtSupreme Court of Nevada

127 Nev. Adv. Op. 82
266 P.3d 608

SICOR, INC., a Delaware Corporation; Teva Parenteral Medicines, Inc., Formerly Known as Sicor Pharmaceuticals, Inc., a Delaware Corporation; Baxter Healthcare Corporation, a Delaware Corporation; and McKesson Medical–Surgical, Inc., A Delaware Corporation, Appellants,
v.
Stacy HUTCHISON; William I. Bilger, Jr., Individually; Joanne Allen and Kenneth G. Allen, Individually and as Husband and Wife; James M. Williams and Heidi Hamilton, Individually and as Husband and Wife; and Maria V. Pagan, Respondents.

No. 59506.

Supreme Court of Nevada.

Dec. 15, 2011.


[266 P.3d 609]

Lewis & Roca LLP and Daniel F. Polsenberg and Joel D. Henriod, Las Vegas, for Appellants.

Matthew L. Sharp, Ltd., and Matthew L. Sharp, Reno; Gillock Markley & Killebrew, PC, and Gerald I. Gillock and Nia C. Killebrew, Las Vegas; Friedman Rubin and William S. Cummings, Anchorage, AK, Friedman Rubin and Kenneth R. Friedman, Bremerton, WA, for Respondent Stacy Hutchison.

Kemp, Jones & Coulthard LLP and Will Kemp, Las Vegas; Mainor Eglet and Robert T. Eglet, Las Vegas, for Respondents William I. Bilger, Jr.; Joanne Allen; Kenneth G. Allen; James M. Williams; Heidi Hamilton; and Maria V. Pagan.

[266 P.3d 610]

Before SAITTA, C.J., DOUGLAS and HARDESTY, JJ.

OPINION
By the Court, HARDESTY, J.:

In this appeal, appellants challenge the district court's post-voir dire denial of their motion for a change of venue in the underlying tort action. Having recognized the propriety of deferring consideration of such motions until after the completion of voir dire in our contemporaneously issued opinion in Sicor, Inc. v. Sacks, 127 Nev. ––––, 266 P.3d 618 (2011), we now enlarge the test to be applied when evaluating post-voir dire motions for a change of venue based on pretrial publicity in civil proceedings. Expanding upon this court's analysis in National Collegiate Athletic Ass'n v. Tarkanian, 113 Nev. 610, 939 P.2d 1049 (1997), we hold that the district court must apply a multifactor test to determine whether there is a reason to believe that the party seeking a change of venue will not receive a fair trial in the community where the case originated. Because appellants have not demonstrated that the circumstances presented here warrant a reasonable belief that a fair trial of this case could not be had in Clark County, we conclude that the district court did not manifestly abuse its discretion by denying appellants' motion for a change of venue.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants are manufacturers of an anesthetic drug, Propofol, which was used in certain medical procedures by nonparties, the Endoscopy Center of Southern Nevada and the Desert Shadow Endoscopy Center. In 2008, the Southern Nevada Health District issued letters to approximately 60,000 patients of these centers, warning the patients that they might have been exposed to blood-borne infections, including hepatitis B, hepatitis C, and HIV. These events have resulted in criminal investigations, bankruptcy proceedings by the two centers and their principal, Dipak Desai, and the filing of approximately 200 civil actions, including the underlying district court case, which have been covered by various media outlets, including newspapers, television stations, radio broadcasts, and Internet sites.

The initial motion for a change of venue

The plaintiffs in the underlying action asserted product liability claims against appellants and various other claims against other defendants.1 Before the beginning of the trial, appellants filed in district court a motion to change venue from Clark County, where the action was pending in Las Vegas, to Washoe County, arguing that adverse pretrial publicity reasonably prevented appellants from receiving a fair trial in Clark County. Appellants asserted that news coverage related to this case was pervasive and biased, vilifying the various defendants and engendering community sympathy for the former patients of the endoscopy clinics. Additionally, appellants contended that media coverage of one of the related civil actions, in which the jury had returned a $500 million punitive damages verdict against appellants, had further tainted the jury pool.

In support of their motion, appellants submitted a 2010 report discussing the results of a survey of the impact of media coverage on prospective jurors. The survey, which included 408 jury-eligible residents of Clark County and 392 jury-eligible residents of Washoe County, indicated, among other things, that 83 percent of Clark County participants acknowledged having heard of the endoscopy center litigation. In contrast, 53 percent of Washoe County participants indicated that they had heard of the litigation. This survey further reflected that 33.8 percent of Clark County participants and 6.6 percent of Washoe County participants had heard about a verdict against the appellant drug manufacturers in a related civil case.

With regard to the media reports covering the endoscopy center litigation, appellants listed 45 print articles published in the Las Vegas Review–Journal between April 2009 and April 2010 that purportedly mentioned

[266 P.3d 611]

the events at the endoscopy clinics. Appellants also identified 33 print articles and 52 Internet articles apparently related to the litigation published by the Las Vegas Sun during this period.2 Appellants did not, however, submit copies of these articles. For the period between April 2010 and August 2011, appellants provided the district court with more than 160 newspaper and Internet articles, with the majority of the articles having been published between April and June 2010. These articles were taken primarily from six Las Vegas print and Internet sources, including the Review–Journal and the Sun. The articles largely included factual accounts of the progress of the first related civil lawsuit to go to trial and of the criminal proceedings against Dipak Desai and his staff. While the articles discussing the related civil trial identified the general allegations of that lawsuit, which were similar to the allegations in the instant case, statements asserting that appellants were liable to the endoscopy centers' former patients were generally attributed to respondents' attorneys, and many of the articles included rebuttal quotations from appellants' attorneys explaining their bases for denying liability. As to the articles discussing the criminal cases, to the extent that they mentioned appellants at all, such references were limited to brief statements noting the verdict in the related civil case.

Respondents opposed the motion for a change of venue, arguing that an attempt to seat a jury using questionnaires and proper voir dire would reveal that a venue change was not warranted. In arguing that the trial should be held in Clark County, respondents primarily noted that it is the largest county in the state, and thus, it has the largest jury pool. In support of this claim, they submitted data from the United States Census Bureau indicating that, in 2009, Clark County's population exceeded 1.9 million people, while Washoe County, the state's next largest county, had a population of approximately 414,800.

Upon consideration of the parties' initial arguments and the evidence presented, the district court concluded that a change of venue was not warranted at that time, and thus, the court reserved ruling on the motion until after an attempt to select a jury had been made.

The jury-selection process

The appellate record shows that at the initial stage of the jury-selection process, the district court distributed approximately 500 questionnaires to potential jurors, asking, among other things, whether they had been exposed to information from any source about the parties, lawyers, or witnesses in this case. According to appellants, approximately 215 jurors were eliminated on the basis of these questionnaires. It appears, however, that a substantial portion—well over one-third—were excluded for reasons other than exposure to pretrial publicity.

Individual interviews

After the exclusion of the approximately 215 potential jurors based on the questionnaires, the jury-selection process moved forward. Before proceeding to the next stage of the process, however, the district court explained to the remaining potential jurors that they were required to avoid all types of media in order to prevent themselves from being exposed to outside information about the case. The district court then examined how the pretrial publicity affected those who had already learned some information about the case. Not wanting to risk unnecessarily contaminating any veniremembers, the district court and the attorneys conducted individual interviews, outside of the presence of the jury pool, with each potential juror who had indicated, either in a questionnaire or otherwise during the jury selection process, that he or she had any prior awareness of the parties or the issues raised in this case.3

[266 P.3d 612]

During this process, the district court conducted approximately 175 individual interviews. The potential jurors interviewed indicated that they had a range of knowledge regarding the case, which spanned from a very vague idea of the issues involved to a relatively sophisticated understanding of the circumstances underlying the case. The period in which they had most recently heard about the case also varied widely. Many of the prospective jurors had heard information about the related cases within a matter of days or weeks before voir dire, while others had last heard about the cases a few months to more than a year earlier.

A significant portion of the potential jurors, close to half, were passed for cause during this phase of the proceeding because they expressed that they had not formed any opinions that would affect their ability to impartially consider the merits of the case based on the evidence presented at trial. Conversely, approximately 90 potential jurors were...

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4 practice notes
  • Hernandez v. Bennett–Haron, No. 59861.
    • United States
    • Nevada Supreme Court of Nevada
    • 25 Octubre 2012
    ...pretrial publicity by allowing for a change of venue or other remedial actions. See, e.g., Sicor, Inc. v. Hutchison, 127 Nev. ––––, ––––, 266 P.3d 608, 614–15 (2011) (expanding the multifactor test for determining whether there is a reason to believe that the party seeking a change of venue......
  • Holt v. Reg'l Tr. Servs. Corp., No. 56479.
    • United States
    • Nevada Supreme Court of Nevada
    • 15 Diciembre 2011
    ...or defense, 18 Federal Practice and Procedure, supra, § 4413, at 314 (citing Restatement (Second) of Judgments § 26(1)(b)); “[t]he [266 P.3d 608] same rule should hold for issue preclusion.” Id. § 4424.1, at 642; see Central States, SE and SW Areas Pen. v. Hunt Truck, 296 F.3d 624, 629 (7th......
  • Tobler v. Sables, LLC, No. 19-15251
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 4 Agosto 2020
    ...through that process of judicial review and not "by bringing a second proceeding before a different district court judge." Holt , 266 P.3d at 608. Against this backdrop, we have little difficulty concluding that Nevada law does not permit parties to evade the mediation program's exclusive j......
  • Devaney v. Quality Loan Serv. Corp., No. 77445-COA
    • United States
    • Nevada Court of Appeals of Nevada
    • 27 Febrero 2020
    ...found that U.S. Bank complied with all of the prerequisites for the issuance of a foreclosure certificate. See Holt , 127 Nev. at 895, 266 P.3d at 608 ; see also NRS 107.086(5)-(6)1 (requiring the beneficiary or its representative to attend the mediation; produce certain loan documents; neg......
4 cases
  • Hernandez v. Bennett–Haron, No. 59861.
    • United States
    • Nevada Supreme Court of Nevada
    • 25 Octubre 2012
    ...pretrial publicity by allowing for a change of venue or other remedial actions. See, e.g., Sicor, Inc. v. Hutchison, 127 Nev. ––––, ––––, 266 P.3d 608, 614–15 (2011) (expanding the multifactor test for determining whether there is a reason to believe that the party seeking a change of venue......
  • Holt v. Reg'l Tr. Servs. Corp., No. 56479.
    • United States
    • Nevada Supreme Court of Nevada
    • 15 Diciembre 2011
    ...or defense, 18 Federal Practice and Procedure, supra, § 4413, at 314 (citing Restatement (Second) of Judgments § 26(1)(b)); “[t]he [266 P.3d 608] same rule should hold for issue preclusion.” Id. § 4424.1, at 642; see Central States, SE and SW Areas Pen. v. Hunt Truck, 296 F.3d 624, 629 (7th......
  • Tobler v. Sables, LLC, No. 19-15251
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 4 Agosto 2020
    ...that process of judicial review and not "by bringing a second proceeding before a different district court judge." Holt , 266 P.3d at 608. Against this backdrop, we have little difficulty concluding that Nevada law does not permit parties to evade the mediation program's exclusive......
  • Devaney v. Quality Loan Serv. Corp., No. 77445-COA
    • United States
    • Nevada Court of Appeals of Nevada
    • 27 Febrero 2020
    ...found that U.S. Bank complied with all of the prerequisites for the issuance of a foreclosure certificate. See Holt , 127 Nev. at 895, 266 P.3d at 608 ; see also NRS 107.086(5)-(6)1 (requiring the beneficiary or its representative to attend the mediation; produce certain loan documents; neg......

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