138 Nev., Advance Opinion 4Z
IN THE SUPREME COURT OF THE STATE OF NEVADA
DESIRE EVANS-WAIAU, No. 79424
INDIVIDUALLY; AND GUADALUPE
PARRA-MENDEZ, INDIVIDUALLY,
Appellants, ra 13,
thz
vs.
BABYLYN TATE, INDIVIDUALLY, JUN 16 2022
Respondent. ELIZASI7F'.-i-: A. rtROWN
CLERK cLgAJPREME COURT
ry • i&A.1".,/
DEPUP: CLERK
Appeal from a district court defense judgment on a jury verdict
in a tort action. Eighth Judicial District Court, Clark County; Mary Kay
Holthus, Judge.
Affirmed.
Prince Law Group and Dennis M. Prince and Kevin T. Strong, Las Vegas,
for Appellants.
Lewis Roca Rothgerber Christie LLP and Daniel F. PoIsenberg, Joel D.
Henriod, and Adrienne Brantley-Lomeli, Las Vegas; Winner Booze &
Zarcone and Thomas E. Winner and Caitlin J. LoreIli, Las Vegas,
for Respondent.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, CADISH, J.:
This appeal presents two separate questions—one procedural
and one substantive. The procedural question is whether a party must
SUPREME COURT
move for a new trial in district court to preserve attorney-misconduct claims
OF
NEVADA
1947A
on appeal. We recently held in Rives v. Farris, 138 Nev., Adv. Op, 17, 506
P.3d 1064 (2022), that a party is not necessarily required to move for a new
trial to preserve its trial error-based arguments or ability to seek a new trial
as an appellate remedy. Respondents argue, however, that our decision in
Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008), requires a party to move
for a new trial to preserve a specific claim that attorney misconduct
warrants a new trial. Respondents read too much into Lince and ignore the
procedural posture of that case, for there we were concerned only with
whether the complaining parties preserved their attorney misconduct
arguments with contemporaneous objections. Although Dace arose from
orders resolving motions for new trials, that distinct procedural posture
does not encumber our review in the context of an appeal from a final
judgment where appellants objected to at least some of the alleged
misconduct. Thus, the rule announced in Rives applies. As no procedural
shortcomings inhibit us from reaching the substantive merits of the appeal,
notably the alleged attorney misconduct, we address appellants claims of
error, and having reviewed the record, we are not persuaded that the
challenged conduct or other alleged trial errors warrant reversal.
Accordingly, we affirm the district court's judgment.
FACTS AND PROCEDURAL HISTORY
In October 2015, appellant Desire Evans-Waiau was driving
westbound on Flamingo Boulevard. She was accompanied by appellant
Guadalupe Parra-Mendez, as well as several children who are not parties
to this appeal. According to Evans-Waiau, she abruptly stopped to avoid a
pedestrian in the crosswalk at the intersection of Flamingo and Ling Lane.
Respondent Babylyn Tate was driving westbound on Flamingo Boulevard
behind Evans-Waiau. According to Tate, Evans-Waiau "braked hard and
abruptly" but Tate did not see a turn signal or a brake light. She testified
2
that she rear-ended Evans-Waiau's car despite braking and swerving to the
left to try and avoid a collision. No one reported any injuries at the scene.
Evans-Waiau reported the accident to the police, who responded
approximately two hours later. After several months passed, during which
appellants obtained medical treatment, appellants filed a complaint,
alleging that Tate negligently operated her car and caused appellants
injury.1 Tate answered, asserting that Evans-Waiau was comparatively
negligent as an affirmative defense and that appellants could not otherwise
prove that their medical treatment was causally related to the October
accident.
At trial, appellants called Jorge Parra-Meza, who is Evans-
Waiau's significant other and Parra-Mendez's brother, as a witness. Parra-
Meza owns the vehicle that Evans-Waiau was driving when the accident
occurred, and he is the father of the children who were in the vehicle with
Evans-Waiau. During his testimony, which primarily focused on Evans-
Waiau's injury claims, Parra-Meza stated he had "smoked-our taillight
covers installed on the vehicle after he purchased it. During cross-
examination, he affirmed that the vehicle had been rear-ended twice,
including this accident, after he added the smoked-out taillights.
Tate introduced an audio/video recording that Parra-Meza
made the night of the accident. In the video, Parra-Meza addressed the
damage to the vehicle and stated:
You can see the fuckin bumper is fuckin' totaled.
Look at the shape of this fuckin' big ass dent right
here, too. The lights are obviously out. Light's
fuckin' out here. I don't know how the fuck this
At some point during her treatment, Evans-Waiau was involved in
1
another car accident, and an ambulance transported her to the hospital.
Evans-Waiau underwent spinal surgery after the second accident.
3
happened but look, a big ass dent here, a big ass
dent here. Fuck.
Appellants objected to its admission as irrelevant hearsay.
They also argued that even if it had potential relevancy, it should be
excluded because Parra-Meza's use of profanity carried a potential for
unfair prejudice that outweighed any probative value the recording may
have. The district court concluded that the recording was relevant to the
bias of both Parra-Meza and Evans-Waiau because no one reported an
injury from the crash until after Parra-Meza made the recording while he
wondered who was going to pay for the damage from the wreck. The court
concluded the recording was not hearsay because it was not offered for the
truth of the matter asserted and that the profanity was not prejudicial, as
the jury would likely understand Parra-Meza's frustration with the damage
to his vehicle. The court thus allowed Tate to play the video. On
questioning, Parra-Meza confirmed that his children were in the
background when he made the video. He also confirmed that he was angry
and wondered who would pay for the damage to the vehicle when he made
the video.
The district court also allowed Tate to ask appellants medical
providers questions "regarding the existence of any past working
relationship with [appellants] counsel involving medical liens only."
During trial, Evans-Waiau confirmed that she met with her initial attorney,
Paul Powell, before meeting with any doctors, and that Powell referred her
to a chiropractor. Powell also referred Evans-Waiau to Dr. Garber, who
performed spinal surgery on Evans-Waiau.
Regarding medical liens, Dr. Rosier, a pain management
physician, performed a selective nerve block on Evans-Waiau. He referred
her to Dr. Khavkin, a neurosurgeon, for a neurosurgical evaluation, which
SUPREME COURT
OF
NEVADA
4
showed a structural disc injury. Dr. Khavkin recommended Evans-Waiau
undergo a spinal fusion, which Dr. Garber affirmed when Evans-Waiau
visited him for a second opinion.2 Dr. Rosler billed several thousand dollars,
but he treated Evans-Waiau on a medical lien "on any potential settlement"
she received. Dr. Khavkin also treated Evans-Waiau on a medical lien.
Tate called Dr. Schifini, a board-certified anesthesiologist, as a
witness. He reviewed all available medical records, imaging studies,
deposition testimony, accident-related data, and a video. He did not form
an opinion on whether the accident caused injuries to either Parra-Mendez
or Evans-Waiau because "[Mere was no objective evidence . . . to indicate
that there was any injury in this particular case." Instead, he gave
appellants "the benefit of the doubt" and "assume[d] that they were injured
in the manner described. Based on that assumption, he addressed whether
the treatments appellants received were reasonable and necessary.
Appellants moved to strike Dr. Schifini's testimony, arguing
that it could not help the jury because he did not opine on whether
appellants were injured in the crash. Further, they asserted that his
testimony was not proper under Williams v. Eighth Judicial District Court,
127 Nev. 51,8, 262 P.3d 360 (2011), because it did not consider their theory
of causation. The district court denied the motion, concluding that Dr.
Schifini's testimony satisfied Williams because he "assume[d] that [Evans-
Waiau] had an injury," yet concluded that it was resolved and likely not
caused by the accident. The court also pointed out that appellants failed to
2Whi1e Dr. Rosler testified that he referred Evans-Waiau to Dr.
Garber for a second opinion regarding the necessity of spinal surgery,
Evans-Waiau testified that Powell referred her to Dr. Garber, and on her
patient intake form, Evans-Waiau indicated that she learned of Garber's
practice from Powell.
5
contemporaneously object to the testimony, and thus, in the absence of clear
error, appellants motion to strike failed.
Before closing arguments, the district court provided two jury
instructions related to Evans-Waiau's potential comparative negligence.
First, the district court gave Instruction No. 34, which provided,
A person shall not drive, move, stop or park any
vehicle . . . if such vehicle . . . [i] s not equipped with
lamps, reflectors, brakes, horn and other warning
and signaling devices . . . required by the laws of
this State . . . under the conditions and for the
purposes provided in such laws.
Next, the court gave Instruction No. 35, which provided that under Nevada
law, lelvery motor vehicle must be equipped with two tail lamps mounted
on the rear, which, when lighted, emit a red light plainly visible from a
distance of 500 feet to the rear." The instruction continued that if the jury
concluded a party violated that law, "it is your duty to find such violation to
be negligence, and you should then consider the issue of whether that
negligence was the proximate cause of injury or damage to the plaintiff."
During closing argument, Tate's attorney discussed "the value
of the dollar" as it relates to appellants' requested damages. He argued as
follows:
The value of the dollar outside the courtroom is
this, if the average family of four makes $50,000 a
year, if the average family of four saves $50,000 a
year makes $50,000 a year [sic] and lees pretend
that family never had to pay a mortgage, never had
to pay rent, never had to buy groceries, never ever
[sic] to pay for a barber, never had to hail a cab,
never went to the movies, never went to a
restaurant, never paid a bill. It would take that
family that makes $50,000 a year, if they never
paid for any clothing, they never paid for children's
clothing, never paid for schoolbooks, they never
made a car payment, they never paid for gas, they
6
never paid for electricity, it would save [sic] that
family of four 20 years to save $1 million.
Appellants objected on the basis that the argument improperly suggested
that the jury consider Tates ability to pay any potential judgment, as the
clear inference of such an argument was that Tate would not be able to pay
appellants projected damages. The district court sustained the objection as
it assumed facts not in evidence but allowed Tate to make a hypothetical
argument of how long it would take a family to save the requested damages
"ftlo put it in perspective on some level how much money it is."
Following the ruling, Tate argued:
If that average family of four managed at the end
of the year to have $5,000 more in the bank than
they have the previous year, they'd be doing—that's
better than most of us. That's $5,000 at the end of
the year that they didn't have the previous year. A
lot of people aren't able to do that.
And if that family was able to save $5,000 a year,
how long would it take them to save $1 million? It
would take them 200 years to save a million dollars.
Thaes how much money they're asking for. 200
years. A million dollars. Thaes 1/3 of one element
of one of the damages they're claiming in this case.
It would take them 600 years to save $3 million.
Thaes not Monopoly money they're asking for.
They're asking for real money. Real money.
Appellants did not object to this argument. The jury returned a general
verdict finding Tate not negligent, and the district court entered judgment
on the verdict. The court of appeals affirmed, and we granted review.
DISCUSSION
Appellants did not waive their attorney-misconduct claims by not moving far
a new trial in district court
Tate argues that appellants waived their attorney-misconduct
SUPREME Couiza
claims because they did not move for a new trial before filing this appeal.
OF
NEVADA
ios 14-11A .2i4k*r-,
7
Relying on Lioce v. Cohen, 124 Nev. 1, 18, 174 P.3d 970, 981 (2008), Tate
contends that a motion for a new trial is required in the attorney-
misconduct realm because the district court "must evaluate the evidence
and the parties and the attorneys' demeanor to determine whether a party's
substantial rights were affected" by the alleged attorney misconduct. Lioce,
124 Nev. at 18, 174 P.3d at 981. We disagree.
We recently addressed whether a party must move for a new
trial to raise a preserved issue on appeal in Rives, 138 Nev., Adv. Op. 17,
506 P.3d at 1068, and held that "a party need not file a motion for a new
trial to raise a preserved issue on appeal or request a new trial as a remedy
for alleged errors below." This general rule applies regardless of the alleged
trial error, and Lioce does not require that a party move for a new trial
before pursuing an appeal pertaining specifically to alleged attorney
misconduct relating to improper arguments.3 Lioce happened to arise from
the post-trial motion process, but that procedural posture does not work as
an encumbrance to appellate review, such that a party who timely objected
to the alleged misconduct but did not move for a new trial cannot appeal
from the final judgment on the basis that the unchecked misconduct
resulted in an unfair trial.
In Lioce, we addressed "the issue of which standards district
courts are to apply when deciding tnotions for a new trial based on attorney
misconduct." 124 Nev. at 14, 174 P.3d at 978 (emphasis added). However,
3As we noted in Rives, while a party need not move for a new trial
before pursuing an appeal, there are several practical benefits to doing so
such as allowing a district court to correct alleged errors without pursuing
potentially unnecessary appellate litigation or developing a better record
for potential appellate review by allowing the district court to articulate its
reasoning for its rulings and the parties to "crystallize" their arguments.
506 P.3d at 1069 n.3.
8
we framed the issue that way because the underlying appeals were taken
from orders granting or denying motions for a new trial based on alleged
attorney misconduct. Id. at 8, 10-11, 14, 174 P.3d at 975, 976-77, 978. Thus,
Lioce arose from the post-trial motion process, and thus, we addressed the
applicable standards for such motions, but we did not impose a requirement
that a party must move for a new trial based on alleged attorney misconduct
to preserve that issue for appeal.4 While Tate raises several prudential
arguments that district courts are best situated to make factual findings
and appellate review may be enhanced if a party first seeks a new trial in
district court, such concerns do not warrant creating a requirement that a
party move for a new trial as a prerequisite to raising preserved issues on
appeal when the rules do not contain such a requirement.5 Accordingly, we
conclude that a party need not move for a new trial as a prerequisite for
preserving its attorney-misconduct claims for appeal when that party
40ur prior caselaw does not require a contrary result. First, in BMW
v. Roth, we reversed a decision to grant a new trial as to one of the plaintiffs
because that plaintiff never moved for a new trial or joined the other
plaintiffs motion for a new trial, and thus, there was no basis for the district
court to grant that plaintiff a new trial. 127 Nev. 122, 132 n.4, 252 P.3d
649, 656 n.4 (2011). Second, in Bato v. Pileggi, we concluded that the
appellant's failure to either contemporaneously object to the attorney
misconduct or move for a new trial based on attorney misconduct
constituted waiver of the claims. No. 68095, 2017 WL 1397327, at *1 (Nev.
Apr. 14, 2017). Finally, in Craig v. Harrah, we noted that we had not
previously held that a party must move for a new trial to preserve an issue
for appellate review and concluded that "it is not necessary to so hold in the
instant case, or to pass, now, finally upon that question." 65 Nev. 294, 308,
195 P.2d 688, 694 (1948).
5Rives squarely forecloses Tates argument that NRAP 3A(a) goes to
jurisdiction only, not issue preservation. 138 Nev., Adv. Op. 17, 506 P.3d at
1068.
SUPREME COURT
OF
NEVADA
1)1 lij.7A
9
objected to the misconduct in district court. As appellants raised objections
to the conduct they challenge on appeal, we next address their arguments
that such misconduct, along with other alleged trial errors, warrants
reversal.
Tate did not make an improper ability-to-pay argument
Appellants contend that Tate made an improper ability-to-pay
argument in closing that constituted reversible attorney misconduct
because it focused on how many years it would take a family to save enough
money to cover the requested damages. They also argue that Tates
attorney's comments improperly encouraged jury nullification and that her
attorney made an improper golden-rule argument. We disagree.
We review whether an attorney's comments constitute
misconduct de novo. Lioce, 124 Nev. at 20, 174 P.3d at 982. "A defendant's
ability or inability to pay a judgment is no more relevant to the issue of
liability than is the fact of insurance." White v. Piles, 589 S.W.2d 220, 222
(Ky. Ct. App. 1979). "[Tlhe ability of a defendant to pay the necessary
damages injects into the damage determination a foreign, diverting, and
distracting issue which may effectuate a prejudicial result." Geddes v.
United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977).
All the cases on which appellants rely focus on whether the
defendant explicitly mentioned or asked the jury to consider the defendant's
lack of wealth or inability to pay any judgment, which Tate did not do here.
See, e.g., id. (concluding that the district court erred when it considered the
defendant's inability to pay a substantial monetary judgment when
fashioning a judgment). Instead, Tates attorney merely discussed the value
of a dollar and "[told] the jury to determine what amount of money" would
compensate appellants and "what that money means to them." A.C. ex rel.
SUPREME COURT
Cooper v. Bellingham Sch. Dist., 105 P.3d 400, 407 (Wash. Ct. App. 2004).
OF
NEVADA
i 7A .cias, 10
This argument did not ask the jury to reject appellants claims based on
Tate's inability to pay a judgment and did not even discuss Tate's financial
circumstances. Accordingly, while such an argument would be improper,
Tate did not make an ability-to-pay argument here.
Although appellants contend that this argument also
improperly encouraged jury nullification, Tate's attorney "did not implore
the jury to disregard the evidence." Capanna v. Orth, 134 Nev. 888, 891,
432 P.3d 726, 731 (2018). Jury nullification is the "knowing and deliberate
rejection of the evidence or refusal to apply the law either because the jury
wants to send a message about some social issue . . . or because the result
dictated by law is contrary to the jury's sense of justice, morality, or
fairness." Lioce, 124 Nev. at 20, 174 P.3d at 982-83 (quoting Jury
Nullification, Black's Law Dictionary (8th ed. 2004)). The argument here,
as reframed, provided a hypothetical as context for the damages amount
appellants sought, and Tate ultimately argued that evidence did not
support negligence or the necessary element of causation; this does not
amount to an improper jury-nullification argument. Cf. Capanna, 134 Nev.
at 890-91, 432 P.3d at 731 (rejecting argument that defendant's counsel
advocated for jury nullification, as the record showed that, in context,
counsel "merely argued the role of the jury in the deliberative process," and
to the extent counsel asked the jury to send a message, the argument was
not prohibited because counsel did not ask the jury to ignore the evidence).
As to whether the argument constituted an impermissible
golden-rule argument, appellants focus particularly on Tate's statement
that if a family was able to save $5,000, 'they'd be doing—that's better than
most of us." But appellants did not object to this revised closing argument
as an improper golden-rule argument, and thus, waiver applies. See Lioce,
SUPREME COURT
124 Nev. at 19, 174 P.3d at 981 (holding that a "party rnust object to
OF
NEVADA
101 1947A
11
purportedly improper argument to preserve this issue for appear and
explaining that the issue is "generally deem [ecll" waived if the party fails to
object to it). While appellants objected to the initial hypothetical, they
objected only on the ground that it was an impermissible ability-to-pay
argument. They did not make a golden-rule objection, despite that a golden-
rule objection is distinct from an ability-to-pay objection. Compare Lioce,
124 Nev. at 22, 174 P.3d at 984 (explaining that a golden-rule argument "is
an argument asking jurors to place themselves in the position of one of the
partiee), with Geddes, 559 F.2d at 560 ("Mhe ability of a defendant to pay
the necessary damages injects into the damage determination a foreign,
diverting, and distracting issue which may effectuate a prejudicial result.").
While a party must object to an improper attorney argument to
preserve the issue for appeal, when a party fails to object, we may still
review allegations of such misconduct for plain error. Lioce, 124 Nev. at 19,
174 P.3d at 981-82. To succeed on plain-error review of unobjected-to
attorney misconduct, a party must show "that no other reasonable
explanation for the verdict exists." Id. at 19, 174 P.3d at 982 (quoting Ringle
v. Bruton, 120 Nev. 82, 96, 86 P.3d 1032, 1041 (2004)). Here, assuming that
Tates attorney made an improper golden-rule argument by stating that a
family able to save $5,000 would be doing better "than most of us," that
statement does not offset the evidence supporting the jury's verdict. See id.
("This standard addresses the rare circumstance in which the attorney
misconduct offsets the evidence adduced at trial in support of the verdict.").
Specifically, the jury considered evidence that (1) Evans-Waiau's vehicle
suffered minimal damage and no injuries were apparent at the scene
although the parties stayed there for two hours after the accident;
(2) Evans-Waiau may have contributed to the accident; (3) appellants did
SUPREME COURT
not speak to a doctor until after visiting an attorney; (4) before surgery,
OF
NEVADA
I,R7A
12
Evans-Waiau was in another automobile accident that required immediate
transport to a hospital; and (5) appellants' medical care was not reasonable.
This evidence supports the jury's verdict such that we cannot conclude that
the allegedly improper argument affected appellants substantial rights,
and thus, appellants cannot show plain error. See id. at 19 n.32, 174 P.3d
at 982 n.32 (explaining that "[arreparable and fundamental error.. . . is only
present when it is plain and clear that no other reasonable explanation for
the verdict exists" (internal quotation marks omitted)).6
Appellants' remaining arguments do not warrant reversal
Appellants argue that the district court abused its discretion
when it (1) admitted the Parra-Meza audio/visual recording, (2) gave two
comparative-negligence jury instructions regarding appellants' taillights,
and (3) allowed Dr. Schifini to testify as an expert witness.
6Appellants also argue that Tate's counsel engaged in attorney
misconduct by using evidence that appellants were treated on medical liens
to argue that appellants' medical care was attorney driven despite the lack
of evidence to support that claim. However, the core of this argument is
that Tate's counsel violated the district court's order granting a motion in
limine, which precluded such an argument absent supporting evidence in
the record. Because appellants did not object to this argument at trial, and
a motion in limine preserves an error that violates the initial order only if
the complaining party objects at trial, BMW, 127 Nev. at 137, 252 P.3d at
659, this argument is waived, Lioce, 124 Nev. at 19, 174 P.3d at 981.
Regardless, as explained above, sufficient evidence supports the jury's
verdict, and thus, any error in allowing the argument does not warrant
reversal. See Lioce, 124 Nev. at 19, 174 P.3d at 981-82. For similar reasons,
we reject appellants' contention that Tate's counsel engaged in attorney
misconduct by arguing that Evans-Waiau's insistence on waiting for police
to respond to the accident undermines her credibility. See id. (explaining
that unobjected-to attorney misconduct is not reversible unless the
complaining party shows "that no other reasonable explanation for the
verdict exists" (internal quotation marks omitted)).
SUPREME COURT
OF
NEVADA
t0 1447A 20;C:=4,
-•
13
First, as to the district court's decision to admit the Parra-Meza
audio/visual recording, we conclude that the district court did not abuse its
discretion, as it properly found that the recording was relevant to Parra-
Meza's credibility and motivation in testifying. See Daisy Tr. v. Wells Fargo
Bank, N.A., 135 Nev. 230, 232, 445 P.3d 846, 848 (2019) (reviewing a district
court's decision admitting evidence for an abuse of discretion). Parra-Meza
testified in support of Evans-Waiau's alleged injuries, and the recording and
his associated testimony could show Parra-Meza was motivated to inflate
Evans-Waiau's injuries, especially in light of the relatively minor damage
to the vehicle. Robinson v. G.G.C., Inc., 107 Nev. 135, 143, 808 P.2d 522,
527 (1991) (concluding that evidence of a witness's motivation to testify is
admissible for impeachment purposes); cf. Rish v. Simao, 132 Nev. 189, 197,
198 n.4, 368 P.3d 1203, 1209, 1210 n.4 (2016) (noting that "even in the
absence of supporting expert testimony, there is a common-sense
correlation between the nature of the impact and the severity of the
injuries," but acknowledging that "Ell ow-impact collisions can cause serious,
as well as minor, injuries"). Further, as the evidence was offered to show
Parra-Meza's motivation in testifying about Evans-Waiau's injuries, it is
not hearsay. NRS 51.035 (defining hearsay as an out-of-court statement
"offered in evidence to prove the truth of the matter asserted"). Finally, the
use of profanity itself does not make a recording per se unduly prejudicial,
see, e.g., United States v. Bufalino, 683 F.2d 639, 647 (2d Cir. 1982)
(concluding that a tape recording of an extortion threat that contained
several obscenities was not highly prejudicial); Foster v. Schares, No. 08-
0771, 2009 WL 606232, at *5 (Iowa Ct. App. Mar. 11, 2009) (explaining how
"the profanity in question has become commonplace throughout all
segments of society," and concluding that the district court therefore did not
SUPREME COURT abuse its discretion by admitting evidence that the plaintiff told the
OF
NEVADA
01 1447A 14
defendant he "better have Ying insurance), and we perceive no abuse of
discretion in the district court's finding that the jury would likely not be
surprised at the profanity, given the context and circumstances in which
Parra-Meza used it.
Second, the district court did not abuse its discretion when it
gave the comparative-negligence jury instructions. MEI-GSR Holdings,
LLC v. Peppermill Casinos, Inc., 134 Nev. 235, 237-38, 416 P.3d 249, 253
(2018) (reviewing a decision to give a jury instruction for an abuse of
discretion). Both Evans-Waiau and Parra-Meza testified that Parra-Meza
installed aftermarket taillight covers that "smoked out" the rear taillights
to the vehicle. Parra-Meza agreed with the "interpretation" that regular
taillights are more visible than smoked-out taillights and acknowledged
that the vehicle had been rear-ended twice after he installed the smoked-
out taillight covers. That testimony, coupled with Tates testimony that she
did not see "any turn signal" or brake lights and "would have seen a turn
signal" had Evans-Waiau used one, supports the district court's decision to
give the challenged instructions regarding required safety equipment and
taillight visibility requirements. See Banks v. Sunrise Hosp., 120 Nev. 822,
832, 102 P.3d 52, 59 (2004) NA] party is entitled to jury instructions on
every theory of her case that is supported by the evidence." (alteration in
original) (internal quotation marks omitted)).
Third, we are not persuaded that the district court abused its
discretion by allowing Dr. Schifini's testimony. Leavitt v. Siems, 130 Nev.
503, 509, 330 P.3d 1, 5 (2014) (reviewing a decision to allow expert
testimony for an abuse of discretion). His testimony assumed that
appellants were injured in the crash and suffered the symptoms they
reported, and based on those assumptions, he concluded that several
SUPREME COURT aspects of the medical care appellants received were not reasonable.
OF
NEVADA
14.17A
15
Because his testimony "include[d] the plaintiffs causation theory in his
analysis," the district court properly allowed it as rebuttal expert
testimony.7 FGA, Inc. v. Giglio, 128 Nev. 271, 284, 278 P.3d 490, 498 (2012)
("[F]or defense expert testimony to constitute a contradiction of the party
opponent's expert testimony, the defense expert must include the plaintiffs
causation theory in his analysis."), Williams, 127 Nev. at 530-31, 262 P.3d
at 368 (same).
CONCLUSION
Consistent with Rives, an appellant need not move for a new
trial to raise claims of improper attorney arguments on appeal if they
preserved the issue with an objection. As to the merits, on this record, we
conclude that the alleged improper ability-to-pay argument and golden-rule
argument do not warrant reversal, either because they fall within a
permissible range of argument or because appellants did not timely object
and are unable to show plain error. As to the other alleged trial errors, we
perceive no abuse of discretion in the district court's decision to (1) admit
the audio/video recording of Parra-Meza, as the recordings met relevancy
criteria; (2) give comparative-negligence jury instructions in light of
undisputed testimony regarding alteration of the taillight covers and
conflicting testimony about turn signal use; and (3) allow Dr. Schifini to
testify, because his testimony met the requirements for expert witness
7We decline to consider appellants other argument that an expert can
testify to the reasonableness of a party's medical treatment only if that
expert also asserts a medical causation theory that contradicts the party
opponent's medical causation theory because appellants did not provide any
authority supporting that argument. Edwards v. Emperor's Garden Rest.,
122 Nev. 317, 330 n.38, 130 P.2d 1280, 1288 n.38 (2006) (explaining that
this court will not consider claims unsupported by cogent argument and
relevant authority).
SUPREME COURT
OF
NEVADA
101 19-17A
16
testimony on causation. Accordingly, we affirm the district court's
judgment on the jury verdict.
Cadish
ati/X, , J.
We concur:
6'
9611.1.7"
C.J.
Parraguirre
Hardesty
Piek,Ady
Pickering
SUPREME COURT
OF
NEVADA
17
t 417A
STIGLICH, J., with whom SILVER and HERNDON, JJ., agree, dissenting:
I respectfully dissent because, in my view, Tates counsel's
comments during closing amounted to an impermissible ability-to-pay
argument. These comments infected the sanctity of the trial and potentially
the jury's verdict. Therefore, I would reverse the judgment and remand for
a new trial.'
Tate's comments during closing argument impermissibly commented on
Tate's ability to pay
During closing arguments, Tate argued that it would take
hundreds of years for an "average family" to save the $3 million in damages
that appellants sought in this case. Tate maintained that these comments
were only meant to remind the jurors of "the value of the dollar." The
majority concludes that Tate did not make an ability-to-pay argument here
because Tate "did not ask the jury to reject appellants claims based on
Tates inability to pay a judgment and did not even discuss Tate's financial
circumstances."
I disagree. This line of argument was introduced to
demonstrate the severity of Tates potential liability with the clear inference
'I also believe that these comments violated the prohibition against
invoking the "golden rule" because they may have "infect[ed] the jury's
objectivity" by asking them to consider if they could save up the $5,000 per
year required to pay off the potential judgment. See Lioce v. Cohen, 124
Nev. 1, 22, 174 P.3d 970, 984 (2008) (explaining that a golden rule argument
"is an argument asking jurors to place theinselves in the position of one of
the parties"). However, reviewing for plain error because appellants did not
preserve this claim, I agree with the majority that reversal is not warranted
on this issue because "other reasonable explanation[s] for the verdict
exists." Id. at 19, 174 P.3d at 982 (quoting Ringle v. Bruton, 120 Nev. 82,
96, 86 P.3d 1032, 1041 (2004)).
SUPREME COURT
OF
NEVADA
1()) 1447A •=415:,
.,,
being that she would not be able to pay. Cf. Geddes v. United Fin. Grp., 559
F.2d 557, 560 (9th Cir. 1977) (observing that "the ability of a defendant to
pay the necessary damages injects into the damage determination a foreign,
diverting, and distracting issue which may effectuate a prejudicial result").
True, Tate did not explicitly ask the jury to consider Tate's ability to pay or
Tate's financial circumstances. But Tate's emphasis that it would take an
"average family" over 600 years to pay off the damages that appellants
sought strongly—and impermissibly—implied that Tate could never pay
back such a judgment. Tate did not mention the "value of the dollae in the
abstract. Rather, Tate contended concretely that "[a] lot of people aren't
able to [pay $5,000 a year]." This is a quintessential ability-to-pay
argument that all but explicitly references Tate specifically.
This improper argument prejudiced the jury's verdict and warrants a new
trial
In my view, Tates ability-to-pay argument during closing
warrants reversal because I believe that the jury may have found that Tate
was negligent had Tate's comments been disallowed. These comments
urged the jurors to consider the value of the dollar and implied that such an
onerous financial burden would be impossible for the "average family" to
pay off. This line of argument focused not on whether Tate was negligent
as a matter of law but rather on whether Tate could pay the judgment as a
matter of fact. Cf. Taylor u. State, 132 Nev. 309, 323, 371 P.3d 1036, 1045
(2016) (observing that "[t]he purpose of closing arguments is to 'enlighten
the jury, and to assist . . . in analyzing, evaluating, and applying the
evidence, so that the jury may reach a just and reasonable conclusion"'
(quoting 23A C.J.S. Criminal Law § 1708 (2006))). I believe that excluding
these improper comments may have reasonably led to a different verdict
below, and I would reverse on this issue. See Wyeth v. Rowatt, 126 Nev.
SUPREME COURT
OF
NEVADA
om 1047A <•:-,
...Z40, 2
446, 465, 244 P.3d 765, 778 (2010) (concluding that prejudicial error occurs
when "the error affects the party's substantial rights so that, but for the
alleged error, a different result might reasonably have been reached").
I believe that the court has erred in resolving this appeal. I
respectfully dissent.
L—f2, 7 J.
Stiglich")
We concur:
Silver
J.
Herndon
3