Recent Blog Posts in March 2010

Hydrolyzed vegetable protein (HVP) is a flavor enhancer contained in a large amount of processed foods. The FDA has been investigating the finding of salmonella in HVP manufactured in Las Vegas, by Basic Food Flavors, Inc. The contaminated HVP affects hundreds of food products, but no reports of illness have been reported to the FDA.

The investigation has resulted in preventative and voluntary recalls of bouillon products; dressings and dressing mixes; flavoring and seasoning products; frozen foods; gravy mix products; prepared salads; ready-to-eat products; sauces and marinade mixes; snack and snack mix products; soup and soup mixes; dip and dip mixes; spreads; and stuffing products. and Dip/Dip Mix Products.

The brands affected by the recall include Herbox; Follow Your Heart; Reser's; Trader Joe's; Garden Harvest; Minor's; Publix; Casa Solana; E-Z Eats!; El Pasado; Giant Eagle; Jose Ole; Posada; Tornados; McCormick; Durkee; French's; Weber; Austinuts; Barcel; CVS; Great Nut Supply; HK Anderson; Hawaiian; Herr's; National Pretzel Company; President's Choice; Pringles; Quaker; Rouses Louisiana's Best; Safeway; Spec's Wines & Fine Foods; Sunflower Markets; Castella; Concord Foods; Culinary Circle; De la Casa; Dean's; Delicioso; Fresh Food Concepts; Great Value; Healthwise; Homemade Gourmet; Johnny's Fine Foods; Kroger; Mrs. Gerry's; Oak Lake Farms; Produce Valley; Rojo's; T. Marzetti; and Spreadables.

For the FDA database of recalled foods, click here. For the FDA searchable database, click here.

The Las Vegas Sun reports that the Ninth Circuit Court of Appeals upheld a Nevada law restricting advertising for brothels. The law was challenged under the First Amendment for violating the right to free speech.

The Nevada law prohibits brothels from advertising in any county where the sale of sexual services is prohibited by state law or local ordinance. The law also limits advertising in counties where brothels are legal: advertisements are prohibited in public theaters, on the public streets of any city or town, or on any public highway.

The court found that the law targets pure commercial speech, which enjoys less protection under the First Amendment than other types of speech. The court held that the restrictions imposed by the law are constitutional, because they "attain a reasonable fit between ends and means."

The court stated, "By keeping brothel advertising out of public places where it would reach residents who do not seek it out, but permitting other forms of advertising likely to reach those already interested in patronizing the brothels, Nevada strikes a balance between its interest in maintaining economically viable, legal regulated brothels and its interest in severely limiting the commoditization of sex."

NRS 41.133 states that when "an offender has been convicted of the crime which resulted in the injury to the victim, the judgment of conviction is conclusive evidence of all facts necessary to impose civil liability for the injury."

In Cromer v. Wilson, 126 Nev. Adv. Op. No. 11 (March 11, 2010), the Nevada Supreme Court addressed the effect of this conclusive evidence of liability on the issues of comparative negligence and damages. The defendant was convicted of felony DUI and felony reckless driving in an accident that severely injured the plaintiff.

The district court had allowed the jury to decide the issue of liability instead of granting the plaintiff's motion for summary judgment. The jury found the defendant liable. In determining liability, the jury was allowed to consider comparative negligence, and it found the plaintiff 25% at fault and the defendant 75% at fault. The jury returned a verdict in favor of the plaintiff and awarded $4,530,785.50 in damages.

On appeal, the Nevada Supreme Court held that NRS 41.133 establishes a conclusive presumption of liability when an offender has been convicted of the crime that resulted in the injury to the victim. Thus, the district court should have granted the plaintiff's motion for summary judgment on the issue of liability, and the trial should have resolved only the issue of damages.

However, the Court also held that NRS 41.133 does not abrogate the law regarding comparative negligence or damages. Therefore, while NRS 41.133 establishes a conclusive presumption of liability, a defendant may argue comparative negligence pursuant to NRS 41.141 to reduce an award of damages at a trial as to damages only.

According to the Reno Gazette Journal, the Reno Police are relaunching a $36,000 campaign to increase traffic safety. Under the campaign, pedestrians and bicyclists may receive citations for violating safety laws.

Reno Wheelmen official Spencer Ericksen estimates that 25 percent of bicyclists regularly break traffic laws.

Common problem areas are bicyclists failing to stop at stop signs, riding against traffic, and riding on sidewalks. Bicyclists are not allowed to ride on sidewalks in downtown Reno, but they can ride on sidewalks elsewhere as long as they yield to pedestrians.

The Reno Police Dept. offers tips to bicyclists and motorists:

Bicyclist safety tips:

• Ride with traffic, not against it.
• Make turns the same way drivers do, using the same turn lanes.
• Signal turns.
• Maintain bicycles, including checking brakes and tires.
• In darkness, use good reflectors and wear bright clothing.
• Wear helmets.
• Use a rear view mirror attached to a helmet, glasses or handle bars.

Motorist Safety Tips

• Look for bicyclists before opening car doors when parked on the street.
• Do not overtake a bicyclist and make a right turn in front of the bicyclist.

The Nevada Supreme Court addressed the applicability of NRS 41A.097, Nevada's medical malpractice statute of limitations, to equitable indemnity and contribution claims.

In Saylor v. Arcotta, 126 Nev. Adv. Op. No. 9 (March 4, 2010), a taxicab passenger was injured when his cab was in an accident. The passenger died during surgery after being hospitalized for a heart attack two weeks after the taxicab accident.

The passenger's heirs sued Jack Saylor, the taxicab driver, and the cab company, Deluxe Taxi Cab Service. Saylor and the Deluxe Taxi learned through discovery that medical malpractice may have been the cause of the passenger's death. Saylor and Deluxe Taxi filed a third-party complaint against the passenger's treating physicians, respondents Dr. Karen Arcotta, Dr. Muhammad Bhatti, and Dr. Nancy Donahoe, for equitable indemnity and contribution.

The one year statute of limitations for medical malpractice imposed by NRS 41A.097 had already passed. The issues presented to the Court were what limitations period applied to the third-party actions for equitable indemnity and contribution.

Equitable Indemnity

The Court held that "equitable indemnity claims that arise out of medical malpractice allegations are not subject to NRS 41A.097(2)'s limitations period for medical malpractice claims, but are instead subject to NRS 11.190(2)(c)'s limitations period for actions on implied contracts."

Contribution

The Court explained that "a contribution claim arises 'where a judgment has been entered in an action against two or more tortfeasors for the same . . . wrongful death.' " Pursuant to NRS 17.285(3), a contribution claim must be filed within 1 year after the judgment has become final by lapse of time for appeal or after appellate review.

Thus, the Court concluded that "once a contribution claim arises, it is subject to a one-year statute of limitations."

Click here for the Advanced Opinion