Recent Blog Posts in 2008

Although the best practice is to avoid driving in hazardous winter weather, that does not always coincide with life's necessities. When driving in bad winter weather is unavoidable, allow the snow plows time to clear the roads and lay out salt and sand. Also, be sure to leave extra travel time. When conditions become icey, try to heed the following advice:

Driving safely on icey roads:

1. Decrease your speed and leave yourself plenty of room to stop. You should allow at least three times more space than usual between you and the car in front of you.
2. Brake gently to avoid skidding. If your wheels start to lock up, ease off the brake.
3. Turn on your lights to increase your visibility to other motorists.
4. Keep your lights and windshield clean.
5. Use low gears to keep traction, especially on hills.
6. Don't use cruise control or overdrive on icy roads.
7. Be especially careful on bridges, overpasses and infrequently traveled roads, which will freeze first. Even at temperatures above freezing, if the conditions are wet, you might encounter ice in shady areas or on exposed roadways like bridges.
8. Don't pass snow plows and sanding trucks. The drivers have limited visibility, and you're likely to find the road in front of them worse than the road behind.
9. Don't assume your vehicle can handle all conditions. Even four-wheel and front-wheel drive vehicles can encounter trouble on winter roads.

For more winter weather driving tips please go here.

In response to the U.S. Supreme Court's decision in Altria v. Good, the American Association for Justice (AAJ) praised the Court in denying immunity for cigarette manufacturers who break state consumer protection laws with untrue affirmations of lowered tar and nicotine.

AAJ President Les Weisbrod issued the following statement:

"We hope that the court continues to look at claims of corporate immunity from the perspective of consumer health and safety and continues to support the rights of consumers to get justice through the courts."

For more on the AAJ please go to http://www.justice.org/.

In Valdez v. State, the Nevada Supreme Court recently ruled on the constitutional rights and statutory procedures regarding instructing a jury on the separating the finding of guilt from the penalty phase of the legal process in a first-degree murder case.

In Valdez the Court addressed four issues:

1) Whether the district court must explicitly instruct the jury, immediately prior to deliberations in a first-degree murder case, that it is to determine only the question of guilt and not deliberate on the sentence until the separate penalty phase of the proceedings;

2) Whether the jury acted improperly by deliberating the penalty while deciding the issue of guilt, and if so, whether the district court abused its discretion in denying a motion for a mistrial based on this jury misconduct;

3) Whether numerous alleged acts of prosecutorial misconduct require reversal; and,

4) Whether cumulative error warrants reversal in this case.

The Nevada Supreme Court ultimately found that "the district court's failure to give a written instruction regarding bifurcation was an abuse of discretion" and that the ensuing juror misconduct violated Valdez's constitutional rights and therefore warrants reversal.

The entire opinion can be found here.

In Cook v. Sunrise Hospital & Medical Center, issued on October 30, the Nevada Supreme Court clarified the proper treatment of the "mere happening" jury instruction in medical malpractice cases. A "mere happening" jury instruction is an instruction asserting that the mere happening of an accident, is, by itself, an insufficient basis for liability.

The case was a medical malpractice action brought against Sunrise Hospital, in which the Plaintiff, Mrs. Linda Cook, alleged that Sunrise Hospital's negligence during a surgical procedure caused complications which ultimately led to the amputation of Mrs. Cook's leg. The case went to trial and was heard by a jury, who received the following instruction: "the mere fact that an unfortunate or bad condition resulted to the patient involved in this case does not prove, or even imply, that by virtue of that fact, the defendant is negligent." The jury returned a quotient verdict, six to two, in favor of Sunrise, and the district court entered judgment against Mrs. Cook.

Issue: Whether the district court's "mere happening" instruction misstated the law.

The Supreme Court held that the instruction misstated Nevada law because it failed to inform the jury that it could consider all of the circumstances leading to the plaintiff's injury as possible evidence of the defendant's negligence. Thus, the jury instruction may have confused or misled the jury.

The Court reversed the judgment after finding that prejudice resulted because, but for the mistake in instructing the jury, it is probably that the Plaintiff may have won his/her case, as the case was close and the evidence could have supported a finding of negligence against the Defendant.

You can find the full opinion here. 124NevAdvOpNo85.pdf

In Cook v. Sunrise Hospital & Medical Center, issued on October 30, the Nevada Supreme Court clarified the proper treatment of the "mere happening" jury instruction in medical malpractice cases. A "mere happening" jury instruction is an instruction asserting that the mere happening of an accident, is, by itself, an insufficient basis for liability.

The case was a medical malpractice action brought against Sunrise Hospital, in which the Plaintiff, Mrs. Linda Cook, alleged that Sunrise Hospital's negligence during a surgical procedure caused complications which ultimately led to the amputation of Mrs. Cook's leg. The case went to trial and was heard by a jury, who received the following instruction: "the mere fact that an unfortunate or bad condition resulted to the patient involved in this case does not prove, or even imply, that by virtue of that fact, the defendant is negligent." The jury returned a quotient verdict, six to two, in favor of Sunrise, and the district court entered judgment against Mrs. Cook.

Issue: Whether the district court's "mere happening" instruction misstated the law.

The Supreme Court held that the instruction misstated Nevada law because it failed to inform the jury that it could consider all of the circumstances leading to the plaintiff's injury as possible evidence of the defendant's negligence. Thus, the jury instruction may have confused or misled the jury.

The Court reversed the judgment after finding that prejudice resulted because, but for the mistake in instructing the jury, it is probably that the Plaintiff may have won his/her case, as the case was close and the evidence could have supported a finding of negligence against the Defendant.

You can find the full opinion here. 124NevAdvOpNo85.pdf

From the Associated Press' Kevin Freking:

Top scientists and career employees at the Food and Drug Administration opposed agency regulations that weaken consumers' ability to sue drug makers, congressional investigators said Wednesday.

The report said the FDA has yet to provide a complete set of documents that would show communications between the White House and the agency, but some documents suggested the agency and the White House would not go forward with a rule on labeling until the pre-emption changes were included. 

Normally, consumer protection for product liability is provided for by state law. However, documents obtained by the American Association for Justice (AAJ)'s repeated requests pursuant to the Freedom of Information Act revealed a Bush regulatory strategy that has serious implications on consumer protection. The strategy, which the AAJ has termed "Complete Immunity Preemption," provides for federal rules which preempt the rights states possess to protect their citizens with strict safety standards.

The AAJ reported that the documents obtained reveal that protecting corporations escape accountability has been a top priority of the Bush Administration. Since 2005, 7 federal agencies have issued more than sixty proposed or final rules with preambles containing complete immunity language for corporations. Such language has even snuck into the body of the final rules. The preemption language provides corporations with a new legal theory for immunity in product liability cases.

The AAJ wants to get the word out about these far-reaching preambles, and the danger they pose to consumers. 

From the American Association for Justice pressroom:

Washington, DC - The current financial crisis was caused by U.S. Chamber's aggressive lobbying to eliminate accountability and oversight, says a new issue brief that also exposes payments from bailed-out AIG to the Washington corporate lobby.

The issue brief summarizes a small selection of U.S. Chamber lobbying and litigation that has put Wall Street ahead of Main Street and corporations above everyday Americans. To read "Behind the Bailout: How U.S. Chamber Created the 2008 Financial Crisis," visit: http://www.justice.org/pdf/uschamberbehindthebailout.pdf.

According to the Associated Press, Reno Police are making greater efforts to enforce the use of seat belts by actively seeking out violaters of Nevada's law requiring automobile passengers to buckle up.

KTVN Reno News reports:

Reno police and other Nevada law enforcement agencies are stepping up enforcement this month of seat belt laws.

Reno police issued 144 tickets for seat belt violations during a similar two-week campaign in May. 

With prescription drug use at its highest in Nevada, and with overdoses from painkillers, including methadone, on the rise, prescription tracking programs are emerging all over the country.

Nevada was the first to implement such a program. The Nevada Pharmacy Board has developed a database listing every prescription written in Nevada for certain medications. The listing includes the provider and the patient, and is designed to prevent drug-seeking patients from obtaining prescriptions from multiple doctors.

To some, the potential privacy invasion from such programs is too invasive.

The Concord Monitor published an editorial on August 24 detailing concerns with the programs:

Some abused drugs are stolen, but most are obtained by filling prescriptions from doctors. Abusers go from doctor to doctor and, since a physician has no way of knowing whether another doctor has just written a prescription for the same drug, get multiple prescriptions. Drug monitoring programs, proponents say, greatly reduce doctor shopping. And they allow doctors, who, when they punch in a security code, see the patient's prescription history, to see when potential harmful or fatal interactions could occur between drugs prescribed by different physicians.

Not enough has changed to recommend that lawmakers change course.

You can see the full article here

FEDERAL INSURANCE COMPANY v. AMERICAN HARDWARE MUTUAL INSURANCE COMPANY, 124 Nev. Adv. Op. No. 31 (May 29, 2008)

In an opinion issued in May, the Nevada Supreme Court addressed the issue of whether, under Nevada law, an additional insured endorsement provides coverage for an injury caused by the sole independent negligence of the additional named insured.

Clark Lift West, Inc. was issued a liability insurance policy by American Hardware Mutual Insurance Company. Clark Lift provided maintenance and repair services at Southern Wine and Spirits of America, Inc., so Southern Wine was listed as an additional insured on Clark Lift's insurance policy with American Hardware. The policy covered Southern Wine, as an additional insured, for liability only arising out of Clark Lift's ongoing operations performed for Southern Wine.

Charles Pierce, a Clark Lift employee, was injured while working at Southern Wine's facility. Pierce initiated a personal injury claim against Southern Wine seeking damages for Southern Wine's negligence in causing his injuries. American Hardware refused to defend the lawsuit, asserting that its additional insured policy did not extend to Southern Wine's negligence.

Using traditional interpretation for ambiguous insurance contracts, in favor of the insured and favoring coverage, the Court held that "when the term "arising out of the operations" of a named insured is included in an additional insured provision, that term must be read to include coverage for acts arising from the additional insured's own negligence."

The Court concluded that "unless the contrary intent is demonstrated by specific language excluding or limiting coverage for injuries caused by the additional insured's independent negligent acts, there is coverage."

See the full opinion here.

The New York Times fielded questions for "Traffic" author Tom Vanderbilt.

Several of the answers were of particular relevance to Nevada drivers.

"Keep to the right, pass only on the left" laws

Q. After driving in Europe -- mostly Germany -- for a number of years, I'm convinced that most highway congestion problems in the United States are caused by failure to observe or enforce "keep to the right, pass only on left" laws. Traffic flows smoothly on autobahns because slow vehicles stay in the right lane. Faster drivers always have the right of way. It works beautifully! Your thoughts? -- Fred Bothwell

That said, even for drivers going within relative bands of the speed limit, but with slightly different speeds, there's a good logic to assigning some order to those speeds, in the same way there's a logic to doing this on things like people movers on airports (one of my pet peeves is the "road hogs" who treat it like a place to stand, blocking all the "lanes"). But in traffic there are always weird exceptions, like an exit or entrance on the left, etc. There's also the notion that someone is always going to want to go faster than someone else, so it raises the question of that one person's desire is really equivalent to the cost of all the other people having to make lane changes, raising the crash risk for every other driver.

55 m.p.h. Speed Limit in light of increasing gas prices

Q. In light of current gas prices and the likelihood of ongoing increases, do you think bringing back the 55 m.p.h. speed limit is a good idea? Do you think it feasible? -- Stephen

A. As this debate could fill an entire book, I'll just say if you're interested in reducing fuel usage (and thus prices) and road casualties, it's a good idea. On the feasibility question, I think we'd need much, much higher fuel prices, speed governors or I.S.A. (intelligent speed adaption) technology in cars, or automated speed camera rollouts. Appealing to people's altruism or common sense (e.g., burning less fossil fuel) seems to fail as an abstract principle, in traffic as elsewhere.

"Anti-civility suit"

Q. Mr. Vanderbilt, do you believe, as I do, that as many people enter their vehicles they feel they're putting on a kind of "anti-civility suit" that somehow absolves them of all requirements to function as polite, humane participants in society? -- Sixto Fernandez

A. By all means. Walt Disney got at this brilliantly in Motor Mania, the 1950 short that shows Goofy changing from "Mr. Walker" to "Mr. Wheeler." I think the reasons are varied, ranging from the sensorial isolation of being in a car to lingering class issues to anonymity and lack of feedback or consequences for acting rudely in traffic, to the very stress of driving itself, amongst other things. Of course, some people simply act in the car like they do off-road. It's been shown, for example, that people with more off-road criminal violations are more likely to commit on-road violations.

For more of Vanderbilt's discussion, in which he addresses roundabouts, geographical differences in honking behavior, ramp meters, and traffic light timing, check out the full question/answer session here.

In Hallmark v. Eldridge, 124 Nev. Adv. Op. No. 48 (published July 24, 2008), the Nevada Supreme Court reviewed the often dubious role of so-called "biomechanical engineers" as experts and concluded that (1) the district court below abused its discretion when it allowed a physician with an engineering background to testify as a biomechanical expert against a personal injury plaintiff because, among other reasons, the testimony did not assist the jury in understanding the evidence as the testimony was not based on a reliable methodology; (2) prejudice stemming from errors in the admission of evidence bearing upon a damage claim requires reversal when the error substantially affects the rights of the complaining party on appeal; and (3) such an error substantially affects those rights when the appellant establishes, based upon a sufficient appellate record, the reasonable probability of a different result in the absence of the error.

The Court's entire decision can be readHERE.

Surprisingly, state budget cuts to doctors' reimbursement rates for Medicaid patients have not discouraged physicians from seeing Medicaid patients. The state cuts will result in reductions in reimbursements for some physicians.

The Las Vegas Sun reported the results of a survey conducted by the state Health Care Financing and Policy Division, in its article entitled "No pay hike, but specialists seem OK with Medicaid," written by David McGrath Schwartz and Cy Ryan. Overall, the survey found that the number of specialists seeing Medicaid patients had actually increased.

Among other findings of the survey:

Increases

--Among Nevada's obstetrician/gynecologists, 93.6% have signed up to serve Medicaid recipients this year, up from 71% in 2006.

--Psychiatrists increased to 88 % from 58%.

--Dermatologists, gastroenterologists and neurologists seeing Medicaid patients increased by 20%.

Decreases

--General practice physicians declined from 71 percent participation to 68 percent

--General surgeon participation decreased from 77 percent to 58 percent

--Internist participation dropped from 94 percent to 79 percent.

--Not a single urology surgeon is signed up with Medicaid.

From the Reno Gazette Journal Today:
Local law enforcement agencies launch a region-wide drunk driving enforcement campaign beginning Monday that will consist of saturation patrols through Labor Day weekend.
Law enforcement officers urge people who drink to do so responsibly and not drive while under the influence. Instead they can use public transportation like a bus or taxicab or having non-drinking, designated drivers to prevent alcohol-related deaths or injuries. Most drunk drivers come from neighborhood bars and individual parties, Sgt. Pat Dreelan of the Reno Police Department traffic division said in a statement.

There were 1,592 DUI arrests by Reno police officers in 2007, a significant increase over the 1,014 arrests in 2006, the statement said. Reno police say this is noteworthy because about half of the 14 fatal vehicle accidents in the city of Reno in 2007 involved drugs or alcohol.

First time DUI offenders face penalties that can include arrest, impounding of the vehicle being driven, two days to six months in jail or community service, a fine of $400-$1,000.00, a chemical test fee, attending DUI school or substance abuse treatment, and participation before a victim impact panel. In addition, first-time offenders can have their drivers license revoked and have to pay license reinstatement and other related feeds and may see a substantial increase in vehicle insurance fees, if the insurance carrier retains the individual as a client. A DUI arrest and or conviction remain in criminal history files for the rest of the individuals life, and convictions and license revocations also remain in an individuals DMV record for the rest of their life. Repeat DUI offenders face increased penalties.

Law enforcement officers suggest people help law enforcement by reporting drivers who may be under the influence. When a potential drunk driver is seen the vehicles license plate number and vehicle description should be reported to dispatch by calling 334-COPS.

Paul Revere Life Insurance Company and UnumProvident Corporation were hit with a combined $60 million dollar verdict in a retrial of a disability insurance bad faith case originally tried in 2004. The June verdict in Las Vegas was six times the punitive damage award originally awarded to Plaintiff G. Clinton Merrick.

Summarized by Friedman, Rubin & White, attorneys for Merrick:

As vice president at General Foods in the 1970s, Merrick was instrumental in the development of the Kool-Aid Man and Country-Time Lemonade advertising campaigns and had thereafter become a successful venture capitalist. Merrick was a founder and managing director of Consumer Venture Partners of Greenwich, CT, and also a founding investor and director of Samuel Adams Brewing Co. He purchased a Paul Revere disability insurance policy in 1989. In 1991, Merrick began to suffer the affects of Lyme disease with chronic fatigue syndrome, though it went undiagnosed for a period of time. His work performance suffered and he tried to continue working. By 1994 he could not meet the grueling business travel and analytic requirements of a venture capitalist and he moved to Summerlin, NV, for his health. He put his insurer, Paul Revere on notice of claim in 1994 and filed his claim in 1995. Paul Revere accepted liability in 1995 and continued to pay benefits until December 1996. At that time, Paul Revere was in the process of being acquired by Provident Companies, Inc. which in 1999 became, UnumProvident Corp., which subsequently changed its name to Unum Group in 2007.

Merrick's lawyers alleged that improper claims handling practices begun at Provident were brought to Paul Revere and influenced its claim handling with respect to Merrick's claim both before the initial denial and afterward. These practices at the Unum Group of disability insurers have been the subject of media scrutiny including exposés on 60 Minutes and Dateline NBC as well as in multiple governmental investigations. "The jury heard evidence of a fifteen year scheme to cheat disabled people," said Rick Friedman, Merrick's lead trial attorney. "The money made off this scheme is in the hundreds of millions, if not billions of dollars. Jury after jury, and regulator after regulator has condemned their practices, but still they continue." According to Friedman, "The verdicts will keep coming until their practices change." 

The Nevada Supreme Court issued a decision last week in Vredenburg v. Sedgwick CMS allowing surviving family members to recover workers' compensation death benefits under certain circumstances when an injured employee commits suicide.

NRS 616C.230(1) provides for workers' compensation benefits for accidental employee deaths but precludes surviving family members from recovering when a the employee's death was caused by his "willful intention to injure himself."

The Supreme Court ruled that a suicide is not "willful" for the purpose of denying workers' compensation death benefits if a sufficient causal chain links an employee's work related injury to the employee's suicide. The precedent setting standard requires a surviving family member to show the following:

(1) the employee suffered an industrial injury,
(2) the industrial injury caused some psychological condition severe enough to override the employee's rational judgment, and
(3) the psychological condition caused the employee to commit suicide.

The full opinion can be found here

From IndoxConsulting.com:

Using enoxaparin or heparin to bridge long-term anticoagulation therapy with warfarin for secondary stroke prevention has been associated with a high risk for serious bleeding in patients with cardioembolic stroke (CES). A retrospective study of 204 CES patients showed that only those who received bridging with enoxaparin went on to have symptomatic intracranial bleeding. Similarly, all CES cases with systemic bleeding were treated with intravenous heparin.

Arch Neurol. Published online July 14, 2008. Abstract

Keeping up with the hepatitis cases against the Endoscopy Center of Southern Nevada, the Reno Gazette Journal reports today that patients from the center who were not physically injured may still be able to recover damages from the Center. Clark County District Court Judge Allan Earl dismissed the Center's argument that emotional distress claims unrelated to actual injuries should not be allowed to recover.

While allowing emotional distress claims to survive, Judge Earl dismissed products liability and warranty claims against the Center, saying that the Center did not sell supplies to its patients.

The RGJ reports that the Center currently faces 121 lawsuits.

Meanwhile, according to Fox News Las Vegas, the Southern Nevada Health District confirmed a ninth case of hepatitis C contracted from exposure at the Endoscopy Center.