Recent Blog Posts

Cell Phone Use While Driving to Be Illegal in Nevada

Steve — Mon, 20 Jun 2011 15:38:00 GMT

Distracted driving is a serious problem, and Nevada is now joining other states that ban the use of cell phones while driving.

The RGJ reports that Gov. Brian Sandoval signed into law a bill that makes texting or talking while driving illegal in Nevada.

The law allows exceptions for using hands-free devices. Fines range from $50 to $250, and a person convicted of three or more offenses within seven years can have their license suspended.

The fines and penalties become effective Jan. 1, 2012.

NV Supreme Court Addresses Seatbelt Evidence in Crashworthiness Case

Steve — Tue, 31 May 2011 19:27:00 GMT

The Nevada Supreme Court addressed issues of seatbelt evidence and violations of pretrial motions in limine in Roth v. BMW, 127 Nev. Adv. Op. No. 11 (April 14, 2011).

The case involved a single car rollover in which the Plaintiff, Alyson Roth, was rendered a paraplegic. Roth was a passenger in a 1987 BMW 528e, and she was sleeping in a reclined position in the front passenger seat when the car strayed onto the shoulder, swerved back across the road, and rolled 2.5 times before coming to rest on its roof. Roth was ejected from the vehicle and suffered severe injuries to her spine.

Roth sued the driver of the vehicle for negligence, and BMW for strict product liability. Roth's theory against BMW was that the car's safety restraint was defective and allowed her to be ejected from the vehicle. Roth and the driver of the car both claimed that Roth was wearing her seatbelt at the time of the accident.

In a pretrial motion in limine, Roth moved to preclude BMW from introducing evidence that Roth was not wearing her seatbelt. Roth based this motion on Nevada's seatbelt statute, NRS 484D.495, which requires that an adult wear a seatbelt but that failure to wear a seatbelt "may not be considered as negligence [or] misuse or abuse of a product or as causation in any [civil] action." NRS 484D.495(4). BMW argued that the statute could not prohibit evidence of seatbelt nonuse where the plaintiff sought damages for enhanced injuries due to defects in the safety restraint system.

The Court ruled that Roth had to show that she was wearing her seatbelt at the time of the accident, so BMW could introduce evidence of nonuse of the seatbelt. However, the Court crafted a limiting instruction, given before opening statements and again before deliberation: "BMW [will introduce] [has introduced] evidence the Plaintiff was not wearing her seatbelt. This evidence may be considered by you in evaluating Plaintiff's claim against BMW that the subject vehicle was defective and unreasonably dangerous. You may not consider this evidence for any other purpose."

In opening statements, BMW's attorney stated that the evidence would show that Roth was ejected from the car because she wasn't wearing her seatbelt, and had she been wearing her seatbelt, she wouldn't have been ejected and she wouldn't have received her spinal injuries. Roth's attorney did not object.

In closing arguments, BMW's attorney said, "[L]et's look at what [Roth is] claiming here and ask the question, did any of these alleged defects cause any injury to Ms. Roth or the accident? Take the seatbelt. It wasn't being worn . . ." Roth's attorney objected, and the Court clarified that BMW could "say that there is evidence she was not wearing her seat belt, so the seat belt couldn't have been defective, and, therefore, the defect in the seat belt could not be a cause of the injuries," but that BMW's attorney "can't say anything beyond that."

The jury returned a $5.9 million verdict in favor of Roth against the driver of the BMW for negligence, but returned a verdict in favor of BMW. The jury found no defect in the BMW.

Roth moved for a new trial against BMW based on NRCP 59(a)(2), which provides that misconduct may warrant a new trial if the misconduct "materially affect[s] the substantial rights of an aggrieved party." The district court granted the motion.

Violation of Motion in Limine

The Supreme Court addressed several issues in determining whether a new trial was warranted.

One issue was whether the prevailing party on a pretrial motion in limine must contemporaneously object to misconduct concerning a pretrial motion in limine. The Court concluded that whether a contemporaneous objection is required depends on whether the party prevailed on the motion in limine. Where the admission or exclusion of evidence at trial is pursuant to an order in limine, the alleged error at trial is the same as the error alleged in the ruling on the motion, and the party need not contemporaneously object in order to preserve claim of error on the ruling on the motion in limine. However, where the alleged error is attorney misconduct involving the violation of an order in limine, a contemporaneous objection must be made in order to preserve the claim of error on appeal. The Court explained the reasoning behind the distinction:

Dispensing with the requirement of a contemporaneous objection would allow the proponent of the order in limine to remain silent and hope for a new trial even though, in many instances, an objection and curative instruction would prevent the need to relitigate the case. Thus, contemporaneous objections to claimed violations of an order produced by a motion in limine are required to prevent litigants from wasting judicial, party, and citizen-juror resources.

BMW's attorney's references to seatbelt evidence in opening statements were not objected to; thus, claim of error was waived unless the misconduct was plain error. Noting that Roth did claim that the seatbelt system was defective, the lack of specificity in the court's order in limine, and the uncertainty in the law with respect to the seatbelt defense in crashworthiness cases, the Court ruled that the comments regarding seatbelt nonuse in opening statements were not plain error.

The Court then addressed the objected-to conduct in closing statements. Conduct that is admonished and objected to is subject to standards set forth in Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008). Under Lioce, "a party moving for a new trial bears the burden of demonstrating that the misconduct is so extreme that the objection and admonishment could not remove the misconduct's effect." Lioce, 124 Nev. at 17, 174 P.3d at 981. The Court noted that "A violation of an order granting a motion in limine may only serve as a basis for a new trial when the order is specific in its prohibition and the violation is clear." Black v. Schultz, 530 F.3d 702, 706 (8th Cir. 2008).

The Court held that the closing argument statements did not warrant a new trial, because the jury instruction cured any misconduct, and in fact, the jury found no product defect and did not reach causation.

Assembly Bill 280 Leaves Handwashing Out of Hospital Health Checklist

Steve — Fri, 13 May 2011 18:47:00 GMT

The Reno Gazette Journal's Frank Mullen Jr. reports:

A state Senate committee Thursday passed a hospital checklist bill, but declined to put a section about hand washing, requested by advocates for hospital patients, back into the measure.

Assembly Bill 280 would require safety checklists and patient safety policies at hospitals and other health care facilities.

Assembly lawmakers removed language that mandated health workers "wash their hands before and after every interaction with a patient and after coming into contact with a surface or object that may be contaminated."

The bill now refers to using proper "hand hygiene," a term that the bill's sponsor, health care industry lobbyists and a committee member said encompasses all types of hand hygiene, including soap and water.

"The sinks often are not close enough to the patient, but (alcohol-based) gels are," said state Sen. Joseph Hardy, R-Clark County, a doctor who is on the state Senate Health and Human Services Committee.

He said putting in a reference to hand washing would "send a message that hand washing is enough, but hand washing is not enough."

The Nevada Chapter of AARP and other advocates submitted an amendment that mentioned hand washing among the options available for hand hygiene.

They said that hospital staffers often ignore existing hand hygiene provisions and that the alcohol-based gels mentioned by Hardy don't kill an intestinal infection called Clostridium difficile, that is known to spread in health care settings.

"I personally prefer the (hand-washing) amendment," said state Sen. Sheila Leslie, D-Reno. "It would be in the bill as an option, not a mandate."

The measure passed without the amendment.

Steve Winters of Reno, who became an advocate for patient safety when his mother died last year of C. diff, said he was disappointed.

"Doctors don't want to be told to wash their hands," he said after the vote. "So, it's business as usual, and people will keep dying of preventable infections."

On Wednesday, three other hospital reform bills were heard in the Assembly Health and Human Services Committee with no action taken.

Senate Bills 209, 264 and 339 would require hospitals to publicly report their annual number of hospital-acquired infections and medical errors, require doctors to inform patients when they have an infection, and allow greater access to other patient safety information.

During the Wednesday hearing, health care industry lobbyists testified that they favor transparency, but objected to reporting raw numbers of facility-acquired infections for every hospital.

They would rather report infections in rates per 1,000 "patient days," a method they said allows fairer comparisons among large and small hospitals.

Patient advocates argue actual numbers of cases, not rates expressed in decimals, are more easily understood by consumers.

AAJ President Explains How Litigation Has Made Cars Safer

Steve — Wed, 11 May 2011 19:27:00 GMT

American Association for Justice President Gibson Vance authored an article in the Washington Post last month explaining the connection between decreased traffic deaths and the civil justice system. The full article is below.

How our cars got safer
By Gibson Vance
April 16, 2011

Traffic deaths in the United States have dropped to their lowest level since 1949, according to a report released this month by the National Highway Traffic Safety Administration (NHTSA). Remarkably, this drop occurred even as Americans drove 21 billion more miles in 2010 than they had the previous year.

The drop in fatalities is due in large part to the fact that cars are getting safer. Since the introduction of the Ford Pinto nearly four decades ago — a car synonymous with danger, destruction and executives putting profits ahead of consumer safety — amazing advancements have been made in auto safety. The technology is better, regulations are stronger and buyers have more information. Not surprisingly, consumers are drawn to cars with the latest safety features.

Yet these factors alone do not tell the whole story. History shows that litigation and the civil justice system have served as the most consistent and powerful forces in heightening safety standards, revealing previously concealed defects and regulatory weaknesses and deterring manufacturers from cutting corners on safety for the goal of greater profits.

The Ford Pinto litigation sent a strong message to the auto industry. Unfortunately, manufacturers have still sold dangerous cars. In June 2004, a Dallas-area mother stopped her Ford F-150 truck to speak with her husband through the driver’s side window. Her 3-year-old daughter leaned out the passenger’s side window and accidentally hit the rocker switch, causing the window to close on her neck. When her parents noticed moments later, it was too late — their daughter was strangled.

As power windows became more common, so too did instances of children being strangled. Seven children died within a three-month period in 2004. Manufacturers were aware of the issue, and the fix was relatively simple and inexpensive. In response to regulations in other countries, European and Asian cars already used a safer switch — one that must be pulled up to raise a window — and so did many U.S. manufacturers on cars they offered to foreign markets. Yet incredibly, U.S. manufacturers did not install the safer switches on domestic cars because NHTSA had no rules governing power-window safety. Litigation eventually forced universal acceptance of the safer switches in 2006.

It is easy to take for granted just how much safer vehicles have become and how safety measures have been standardized. For years, the auto industry has worked to undermine regulations and limit its liability by pushing for complete immunity from lawsuits when their vehicles comply with minimum federal safety standards. This would, in short, be devastating for consumers.

Recall that the Pinto’s design met all government standards of the time. Had compliance with federal standards been a complete defense of vehicle safety, Ford could not have been held accountable for the many burn victims that the company was later shown to have anticipated.

Put another way, without the civil justice system, gas tanks would still explode in rear-end collisions, seat belts and airbags would not be standard, and cars would roll over onto roofs that would be easily crushed.

There are multiple reasons behind the welcome news that traffic deaths continue to decline. But the role of the civil justice system is often overlooked. Litigation has spurred safety innovations in vehicles for more than half a century and will continue to be essential in keeping Americans safe and holding manufacturers accountable.

The writer is president of the American Association for Justice.

Nevada Informed Consent May be Implied

Steven J. Klearman — Fri, 06 May 2011 00:43:00 GMT

The issue of informed consent frequently arises in the context of medical malpractice cases.

I'm used to sitting in depositions in which a medical malpractice defense attorney will hand my client's informed consent over to my client and then proceed with a series of questions intended to confuse. Malpractice victims obviously do not consent to allow a doctor to commit malpractice, but defense attorneys like to use informed consents against a plaintiff in any way possible.

In Nevada, our Supreme Court recently clarified several informed consent issues in the context of a chiropractic malpractice case.

In Bronneke v. Rutherford, 120 Nev. 230, 89 P.3d 40 (2004), the Court held that consent to treatment may
be express or implied. By seeking chiropractic treatment, a plaintiff's consent to the particular technique may be

implied because as a practical matter, health professionals cannot be required to obtain express consent before each touch or test they perform on a patient.

If you are a malpractice victim, ensure that you are properly prepared by counsel with respect to questions that may arise at deposition, and at trial, regarding informed consent.

Lyon County Sheriff's Office Enforcing Traffic Safety and Pedestrian Traffic Laws

Steve — Thu, 21 Apr 2011 21:37:00 GMT

The Reno Gazette Journal reports that the Lyon County Sheriff's Office, along with Joining Forces/Office of Traffic Safety, will be increasing efforts to enforce traffic safety and pedestrian traffic laws in Dayton, Fernley, Stagecoach, Silver Springs, and Mason Valley. From the RGJ:

The Lyon County Sheriff's Office will be enforcing pedestrian traffic laws and will also be out on the lookout for speeders in five communities in the county.

The LCSO will conduct traffic safety and pedestrian enforcement details in Dayton, Fernley, Stagecoach, Silver Springs, and Mason Valley through May 9.

According to an LCSO press release, the sheriff's office and Joining Forces/Office of Traffic Safety will be conducting the enforcement details.

Joining Forces/OTS is a federally recognized highway safety office in the state, has been in operation since 2000, and encourages law enforcement departments to co-op together on such traffic safety details.

The goal of the program is to unite Nevada law enforcement agencies and to reduce accidents, raise awareness and ultimately safe lives.

The Sheriff's Office has partnered with Carson City, Douglas County and Mineral County Sheriff's Offices to initiate its pedestrian safety operation.

On Monday, Deputies in the Dayton area will be on the lookout for vehicles that fail to yield to pedestrians, as well as pedestrians who fail to follow proper laws regarding crossing the streets, indicated the LCSO release.

The LCSO will conduct another operation in Fernley on May 7.

Additionally, the press release indicated, Deputies will be active in the Fernley, Dayton, Stagecoach, Silver Springs, and Mason Valley areas conducting extra traffic enforcement focusing mainly on speeding vehicles.

NHTSA Truck Regulations Fail to Protect Against Underride

Steven J. Klearman — Mon, 04 Apr 2011 22:48:00 GMT

The Insurance Institute for Highway Safety (IIHS) is urging the National Highway Traffic Safety Administration (NHTSA) to adopt more stringent regulations for underride guards on large trucks and semis. Underride - where a smaller vehicle runs underneath a truck - is a significant danger in nearly all collisions involving larger trucks, and the IIHS is asking the NHTSA to act to help prevent underride.

Underride guards are regulated by two Federal Motor Vehicle Safety Standards, published in 1996, which specify equipment strength requirements, compliance procedures, mounting instructions, and location specifications. Some trucks may not even have to comply with these regulations, as exemptions exist. The IIHS urges more stringent standards because even complaint trucks don't adequately prevent underride for some vehicles, and don't adequately prevent side underride. Underride guards that are currently compliant can fail even in collisions at relatively low (30 mph) speeds.

The IIHS urges that the NHTSA adopts regulations that keep pace with the changes in passenger vehicles and that adequately protect against the dangers of underride.

Credit SafetyResearch.net

NHTSA Truck Regulations Fail to Protect Against Underride

Steve — Mon, 04 Apr 2011 19:40:00 GMT

The IIHS urges that the NHTSA adopts regulations that keep pace with the changes in passenger vehicles and that adequately protect against the dangers of underride.

Credit SafetyResearch.net

Ten Hour Limit for Truck Drivers? AAJ Weighs In.

Steve — Thu, 24 Mar 2011 19:35:00 GMT

The U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) acts to prevent fatalities and injuries caused by commercial motor vehicles. The FMCSA enforces safety regulations for carriers and commercial motor vehicle drivers. Currently, truck drivers are limited to an 11-hour driving time limit, but the FMCSA is recommending that the limit be ten hours. Here's what the American Association for Justice has to say about the issue:

Proposed rules for commercial truck drivers do not provide the adequate level of protection needed to prevent driver fatigue, according to comments submitted today by the American Association for Justice (AAJ). The Federal Motor Carrier Safety Administration (FMCSA) has recommended a 10-hour driving time limit, but indicated they are open to maintaining the current 11-hour requirement.

Every year more than 4,000 people are killed in accidents involving trucks, according to the FMCSA. The National Transportation Safety Board has said driver fatigue is a factor in 30 to 40 percent of these crashes. In fact, research shows the risk of a crash increases twofold after eight hours of consecutive driving, and driver fatigue is the leading contributing factor in truck driver deaths from crashes.

"Driver fatigue puts not only the truck driver workforce at risk, but also other passengers who share the road. Ensuring our roads are safe should be the FMCSA's top priority," said AAJ President Gibson Vance.

AAJ also opposes FMCSA's proposed 34-hour restart period, which would allow truck drivers to bypass the 60/70-hour duty limit. This 34-hour restart period cannot ensure a truck driver receives proper rest. AAJ recommends that the FMCSA mandate a 48-hour restart requirement to provide commercial truck drivers with greater rest and recovery time after working long hours. It would also shorten the work week, meaning less fatigued drivers and safer highways.

Ten Hour Limit for Truck Drivers? AAJ Weighs In.

Steven J. Klearman — Mon, 14 Mar 2011 16:14:00 GMT

Proposed rules for commercial truck drivers do not provide the adequate level of protection needed to prevent driver fatigue, according to comments submitted today by the American Association for Justice (AAJ). The Federal Motor Carrier Safety Administration (FMCSA) has recommended a 10-hour driving time limit, but indicated they are open to maintaining the current 11-hour requirement.

Every year more than 4,000 people are killed in accidents involving trucks, according to the FMCSA. The National Transportation Safety Board has said driver fatigue is a factor in 30 to 40 percent of these crashes. In fact, research shows the risk of a crash increases twofold after eight hours of consecutive driving, and driver fatigue is the leading contributing factor in truck driver deaths from crashes.

"Driver fatigue puts not only the truck driver workforce at risk, but also other passengers who share the road. Ensuring our roads are safe should be the FMCSA's top priority," said AAJ President Gibson Vance.

AAJ also opposes FMCSA's proposed 34-hour restart period, which would allow truck drivers to bypass the 60/70-hour duty limit. This 34-hour restart period cannot ensure a truck driver receives proper rest. AAJ recommends that the FMCSA mandate a 48-hour restart requirement to provide commercial truck drivers with greater rest and recovery time after working long hours. It would also shorten the work week, meaning less fatigued drivers and safer highways.

Majority of Young Drivers Use Phone While Driving

Steven J. Klearman — Mon, 07 Mar 2011 22:01:00 GMT

The Reno Gazette Journal reports today that a Consumer Reports poll reveals the high usage of cell phones while driving:

63 percent of young people admit to using a handheld phone while driving, and 30 percent admit to sending text messages while driving.

Nevada is one of the minority of states that does not ban text messaging or cell phone use while driving. Many states prohibit or limit cell phone use and texting, especially among teen drivers. Click here for a state-by-state list of cell phone driving laws.

Alarmingly, the Consumer Reports poll revealed that only 30 percent of those under 30 believe that such behavior is very dangerous. According to the U.S. Department of Transportation, distracted driving accidents caused nearly 5,500 deaths in the U.S. in 2009.

Majority of Young Drivers Use Phone While Driving

Steve — Mon, 07 Mar 2011 20:38:00 GMT

The Reno Gazette Journal reports today that a Consumer Reports poll reveals the high usage of cell phones while driving:

63 percent of young people admit to using a handheld phone while driving, and 30 percent admit to sending text messages while driving.

AAJ: House Medical Liability Bill “Beyond Extreme”

Steve — Sat, 05 Mar 2011 20:40:00 GMT

The following is a statement from American Association for Justice (AAJ) President Gibson Vance in response to H.R. 5, a “medical liability reform” bill that was introduced in January in the U.S. House of Representatives:

“After repealing a bill that provided health insurance to over 30 million Americans, the next proposal from the new House leadership is to take away the legal rights of injured patients, remove any incentive to improve safety, and leave people at risk for more injuries from negligent care. This is the most perverse form of legislating imaginable.

“Ten years ago, the Institute of Medicine found that as many as 98,000 people die every year from preventable medical errors. Recent studies have confirmed the problem is only getting worse.

“This bill will impose severe, one-size-fits-all caps on damages that injured patients can seek – not just when injured by medical negligence, but also by defective drugs, medical devices, or abuse suffered in nursing homes. It even extends this cap to health care providers that intentionally harm or kill patients, as well as insurance companies that refuse to pay just claims for medical bills.

“The bill is beyond extreme. Its authors should focus on real measures that will improve patient safety, not provide welfare to drug and insurance companies that stand to gain the most from this proposal.

“By removing legal accountability, attention to safety will go down and more people will suffer injuries and death from negligent care. Congress should put patient safety first.”

AAJ: House Medical Liability Bill "Beyond Extreme"

Steven J. Klearman — Thu, 03 Mar 2011 16:49:00 GMT

The following is a statement from American Association for Justice (AAJ) President Gibson Vance in response to H.R. 5, a "medical liability reform" bill that was introduced late yesterday in the U.S. House of Representatives:

"After repealing a bill that provided health insurance to over 30 million Americans, the next proposal from the new House leadership is to take away the legal rights of injured patients, remove any incentive to improve safety, and leave people at risk for more injuries from negligent care. This is the most perverse form of legislating imaginable.

"Ten years ago, the Institute of Medicine found that as many as 98,000 people die every year from preventable medical errors. Recent studies have confirmed the problem is only getting worse.

"This bill will impose severe, one-size-fits-all caps on damages that injured patients can seek - not just when injured by medical negligence, but also by defective drugs, medical devices, or abuse suffered in nursing homes. It even extends this cap to health care providers that intentionally harm or kill patients, as well as insurance companies that refuse to pay just claims for medical bills.

"The bill is beyond extreme. Its authors should focus on real measures that will improve patient safety, not provide welfare to drug and insurance companies that stand to gain the most from this proposal.

"By removing legal accountability, attention to safety will go down and more people will suffer injuries and death from negligent care. Congress should put patient safety first."

Dept. of Justice Asks Tobacco Companies to Admit Lies

Steven J. Klearman — Tue, 01 Mar 2011 16:43:00 GMT

The Associated Press reports that the Department of Justice wants tobacco companies to fess up, publicly. The government released "corrective statements" that it proposes that tobacco companies should be required to make.

Here are a few of the statements, as reported by the AP:

"A federal court is requiring tobacco companies to tell the truth about cigarette smoking. Here's the truth: ... Smoking kills 1,200 Americans. Every day."
"We falsely marketed low tar and light cigarettes as less harmful than regular cigarettes to keep people smoking and sustain our profits."
"For decades, we denied that we controlled the level of nicotine delivered in cigarettes," a third statement says. "Here's the truth. ... We control nicotine delivery to create and sustain smokers' addiction, because that's how we keep customers coming back."
"We told Congress under oath that we believed nicotine is not addictive. We told you that smoking is not an addiction and all it takes to quit is willpower. Here's the truth: Smoking is very addictive. And it's not easy to quit."
"Just because lights and low tar cigarettes feel smoother, that doesn't mean they are any better for you. Light cigarettes can deliver the same amounts of tar and nicotine as regular cigarettes."
"The surgeon general has concluded" that "children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome, acute respiratory infections, ear problems and more severe asthma."

Not surprisingly, these statements are met with opposition from the tobacco companies. Phillip Morris wants the Justice Department to water down those corrective statements to comply with an appellate court decision stating that corrective statements must be purely factual and uncontroversial.

The tobacco companies must respond to the proposed statements by March 3.

Credit Pete Yost of AP via MSNBC