Sicor Inc. v. Sacks

• Decision Date: 15 December 2011
• Docket Number: No. 58887.,58887.
• Citation: 127 Nev. Adv. Op. 81,266 P.3d 618
• Parties: 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., Appellants, v. Richard C. SACKS, Individually; Anne M. Arnold and James L. Arnold, Individually and as Husband and Wife; and Anthony V. Devito and Donna Jean Devito, Individually and as Husband and Wife, Respondents.
• Court: Nevada Supreme Court

127 Nev. Adv. Op. 81

266 P.3d 618

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., Appellants,

v.Richard C. SACKS, Individually; Anne M. Arnold and James L. Arnold, Individually and as Husband and Wife; and Anthony V. Devito and Donna Jean Devito, Individually and as Husband and Wife, Respondents.

No. 58887.

Supreme Court of Nevada.

Dec. 15, 2011.

Lewis & Roca LLP and Daniel F. Polsenberg and Joel D. Henriod, Las Vegas; Greenberg Traurig, LLP, and Philip M. Hymanson and Eric W. Swanis, Las Vegas, for Appellants.

Kemp, Jones & Coulthard and Will Kemp, Las Vegas; Mainor Eglet and Robert Eglet and Robert Adams, Las Vegas, for Respondents.

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

OPINION

By the Court, HARDESTY, J.:

In this appeal, we consider the propriety of a district court order deferring a final ruling on a change of venue motion based on adverse pretrial publicity until after jury selection began and whether such an order is appealable. We conclude that such an order does not finally decide the motion and thus dismiss this appeal. When a change of venue motion is based on adverse pretrial publicity, the district court's discretion under NRS 13.050(2) to change venue includes the authority to conduct a more probing evaluation of the prospective jury panel before the district court decides whether there is reason to believe that an impartial trial cannot be had in the judicial district. Courts in other jurisdictions and our criminal venue jurisprudence approve the trial court's use of juror questionnaires and a thorough voir dire to seat impartial juries in high-profile civil and criminal cases before deciding venue motions based on adverse pretrial publicity. Therefore, we conclude that a district court's decision to defer a final ruling on a motion to change venue until after such efforts have been attempted should not be treated as a denial of the motion.

Because the district court in the present case permissibly deferred its ruling on the motion to change venue, we conclude that the challenged order is not appealable until the district court finally resolves the motion to change venue, following an attempt to seat an impartial jury.¹

FACTS 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 Gastroenterology Center of Nevada. In 2008, the Southern Nevada Health District issued letters to approximately 60,000 patients of these centers, warning 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 endoscopy centers and their principal, Dipak Desai, and the filing of approximately 200 civil actions in Clark County against various parties, including appellants.² Numerous stories about these subjects have been published by various Clark County newspapers, television stations, radio broadcasts, and Internet sites.

About one month before trial, appellants filed a motion to change venue from Clark County to Washoe County based on the adverse pretrial publicity accorded to the happenings at the two endoscopy centers. Appellants characterized the pretrial publicity as pervasive and prejudicial to their right to a fair trial. Appellants further contended that a significant proportion of the Las Vegas population were directly or indirectly affected by the events at the centers either because they had been patients of the centers themselves or had friends, family members, or coworkers who had been patients. In support of their contentions, appellants provided two surveys of the Las Vegas populace and copies of the numerous stories that had been published or broadcast about the matter.

Respondents opposed the motion, arguing that an impartial jury could be found through the proper use of jury questionnaires and a thorough voir dire of the prospective jurors. They also pointed out that Clark County's population was five times greater than that of Washoe County, which would provide access to a much larger jury pool. Finally, they maintained that 500 jury questionnaires had been sent out, and until the responses, together with voir dire, demonstrated that an impartial jury could not be had in Clark County, any venue change was premature.

The district court, after considering the parties' filings and reviewing approximately 100 of the completed jury questionnaires, concluded that a change in venue was not warranted at that time. The court noted that many of the potential jurors reported in their answers to the questionnaires that they had little or no familiarity with the events that formed the basis for the action, and even more prospective jurors stated that they had no opinions about the matter. The district court denied the motion for the moment, without prejudice to further consideration if, after voir dire, a fair jury could not be seated. This appeal followed.

In our summary order dismissing this appeal, we noted that the appeal was premature, as the district court had not issued a final ruling on the change of venue motion. Rather, the district court expressly withheld its final decision until after jury selection had been concluded, stating that it would revisit the issue if an impartial jury could not be seated. In this opinion, we address whether a district court's deferral of a ruling on a motion to change venue should be construed as a final decision in light of NRAP 3A(b)(6)'s language. If not, the appeal is premature and the district court's order is not appealable under NRAP 3A(b)(6).

DISCUSSION

By statute, the district court may change the place of a civil trial on motion of a party “[w]hen there is reason to believe that an impartial trial cannot be had” in the county designated in the complaint. NRS 13.050(2)(b). Although appellate review is generally appropriate at the conclusion of a district court case, to promote judicial efficiency, Reno Hilton Resort Corp. v. Verderber, 121 Nev. 1, 5, 106 P.3d 134, 136–37 (2005), other types of orders have been designated by the Legislature and this court as independently appealable, before entry of a final judgment. See, e.g., NRS 155.190 (listing appealable probate orders); NRAP 3A(b)(2)-(10) (listing appealable orders). One such exception permits a party to appeal from a district court order granting or denying a motion to change the place of trial. NRAP 3A(b)(6).

Even for appealable interlocutory orders, however, we have consistently required that, for an appeal to be proper, the order must finally resolve the particular issue. For example, while a preliminary injunction is appealable under NRAP 3A(b)(3), a temporary restraining order, which is necessarily of limited duration pending further proceedings on the injunction request, is not. Sugarman Co. v. Morse Bros., 50 Nev. 191, 255 P. 1010 (1927). Similarly, NRAP 3A(b)(7) permits an appeal from a district court order that “finally establishes or alters” child custody, but we routinely dismiss appeals from interim custody orders that contemplate further district court proceedings before entry of a final custody order. See, e.g., In re Temporary Custody of Five Minors, 105 Nev. 441, 777 P.2d 901 (1989).

An order that expressly reserves a final ruling to a later time would usually not raise any question as to its interim nature. Our rule governing venue appeals, however, could be interpreted to require a different conclusion. NRAP 3A(b)(6) provides that, in civil cases, an order granting or denying a change of venue is immediately appealable. Moreover, the rule prohibits an aggrieved party from raising a venue issue on appeal from the final judgment, NRAP 3A(b)(6)(A), despite the general rule that interlocutory orders may be challenged on appeal from the final judgment. Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998).

In other contexts, we have construed a district court's silence or refusal to rule as denial of the relief sought. Bd. of Gallery of History v. Datecs Corp., 116 Nev. 286, 289, 994 P.2d 1149, 1150 (2000) (noting that the district court's failure to rule on a request for attorney fees constitutes a denial of the request); Weiler v. Ross, 80 Nev. 380, 382, 395 P.2d 323, 324 (1964) (noting that the effect of a district court's refusal to rule upon a motion to amend the complaint was to deny the motion). Given that NRAP 3A(b)(6) requires an immediate appeal, it clearly contemplates appellate review before trial commences and the jury begins to hear the case. In such circumstances, it could be appropriate to treat a district court's deferral of its ruling on a venue motion as a denial. But the rule also provides for an expedited review and a mandatory stay, which indicates that until a jury is selected and trial actually commences, an immediate appeal remains feasible. NRAP 3A(b)(6). We have not previously considered this issue. Thus, to determine which interpretation best furthers the rule's scheme and is supported by reason and public policy considerations, Salas v. Allstate Rent–A–Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 514 (2000); Weddell v. Stewart, 127 Nev. ––––, ––––, 261 P.3d 1080, 1084 (2011) (stating that rules of statutory construction apply to court rules), we consider civil practice in other jurisdictions, as well as Nevada's criminal practice.

Most courts determine whether a change of venue is appropriate only after jury selection efforts have been made. See, e.g., People v. Hamilton, 48 Cal.3d 1142, 259 Cal.Rptr. 701, 774 P.2d 730, 737 (1989); Gonzalez v. State, 222 S.W.3d 446, 448 (Tex.Crim.App.2007); Unger v. Cauchon, 118 Wash.App. 165, 73 P.3d...