138 Nev., Advance Opinion 1?
IN THE SUPREME COURT OF THE STATE OF NEVADA
BARRY JAMES RIVES, M.D.; AND No. 80271
LAPAROSCOPIC SURGERY OF
NEVADA, LLC,
Appellants/Cross-Respondents,
vs.
TITINA FARRIS; AND PATRICK
MAR 3 1 2022
FARRIS,
Respondents/Cross-Appellants.
BARRY JAMES RIVES, M.D.; AND No. 81052
LAPAROSCOPIC SURGERY OF
NEVADA, LLC,
Appellants,
vs.
TITINA FARRIS: AND PATRICK
FARRIS,
Respondents.
Consolidated appeals and a cross-appeal from a district court
judgment in a medical malpractice action and a post-judgment order
awarding attorney fees and costs. Eighth Judicial District Court, Clark
County; Joanna Kishner, Judge. -
Reversed in part, vacated in part, and remanded.
Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno,
for Appellants/Cross-Respondents.
Claggett & Sykes Law Firm and Micah S. Echols, Las Vegas; Hand &
Sullivan, LLC, and George F. Hand, Las Vegas; Bighorn Law and Kimball
J. Jones and Jacob G. Leavitt, Las Vegas,
for Respondents/Cross-Appellants.
24,-014191
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, CADISH, J.:
Appellants appeal from a $6 million judgment, challenging
several evidentiary rulings they claim warrant reversal and remand for a
new trial. Respondents assert that because appellants did not move for a
new trial in district court, they waived the issues, such that their
assignments of error on appeal cannot provide the basis for a new trial.
Respondents fail to present a convincing argument that the procedural bars
they claim prohibit our review on the merits apply here. The plain language
of our jurisdictional rules confirms that appellants are not required to file a
motion for a new trial in district court to preserve their ability to request a
new trial on appeal. As to the merits of appellants claims, we conclude that
the district court abused its discretion by admitting evidence of another
medical malpractice case against appellant Barry James Rives, M.D., as
that evidence was not relevant for an admissible purpose, and any potential
relevance was substantially outweighed by the evidence's fairly obvious
prejudicial effect. As this evidentiary ruling was harmful, we reverse the
judgment, vacate the attorney fees and costs order, and remand for a new
trial.
FACTS AND PROCEDURAL HISTORY
Respondent Titina Farris suffered from back pain with pain
and burning in her feet. She was diagnosed with uncontrolled diabetes
causing neuropathy. In 2014, Farris was referred to appellant Barry James
Rives, M.D., for swelling in her upper abdomen. Rives diagnosed Farris
with a hernia, which he surgically repaired on two occasions, first in 2014
2
and second in 2015. During the second surgery, Rives noticed that part of
Ferris's colon was stuck in the mesh from the 2014 surgery. Rives freed the
colon from the mesh; however, he caused two small holes in the colon, which
he repaired with a stapling device. Farris had several problems following
the 2015 surgery, including sepsis. Although a CT scan on July 5 and an
x-ray on July 12 showed no signs of a leak in Farris's colon, a CT scan on
July 15 showed a leak, which another surgeon corrected. But Farris's sepsis
continued, and she eventually developed •drop foot in both feet, hindering
her ability to walk unassisted. Farris and her husband, respondent Patrick
Farris (collectively "respondents"), filed this medical malpractice • lawsuit
against Rives and appellant Laparoscopic Surgery of Nevada LLC
(collectively "appellants"), alleging that Rives fell below the standard of care
in performing the surgery and monitoring Farris after, that Laparoscopic
Surgery of Nevada LLC was vicariously liable for Rives's actions, and for
loss of consortium.
In an unrelated matter, another patient, Vickie Center, sued
Rives for malpractice related to her hernia surgery, which took place five
months before Farris's surgery. The same defense firm represented Rives
in both the Farris and Center cases. In the Center case, Rives responded to
an interrogatory that asked him to provide information concerning other
lawsuits in which he was involved. One month later, Rives responded to a
similar interrogatory request in the Farris ease, and his attorney copied the
interrogatory responses from the Center case without adding - the Center
case to the list of other suits. •
Respondents counsel deposed Rives. At the deposition, counsel
asked questions regarding the other cases Rives disclosed •in• his
interrogatory response. Rives's responses did not mention the Center case,
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but defense counsel interjected with information about that case. Rives was
then asked several questions regarding the Center case, and respondents'
counsel discussed the Center case with Center's counsel "weeks to months
before the trial in" the Center case started.
Before the trial in this matter, respondents filed a pretrial
motion for sanctions, contending that Rives intentionally concealed the
Center case. Respondents asserted that they "had no reasonable
oppOrtunity to further• investigate this critical• and admissible information"
and requested that the district court strike appellants answer. Appellants
opposed, arguing that the omission • was accidental and there was no
prejudice to respondents. They also argued that the Center case waS not
admissible, as it was irrelevant, unduly prejudicial, misleading to the jury,
and improper character evidence.
The district court held an evidentiary hearing on the motion, at
which Rives testified that he relied on his counsel to prepare the
interrogatory responses in the Farris case and conceded that he did not read
them. The district court concluded that Rives "relied on counser to prepare
the interrogatory responses and, thus, had "an intent not to read the
interrogatories," which the court considered "intentional conduct"
warranting an adverse-inference instruction.' While the district court
'Ultimately, the district court read the following adverse-inference
instruction before the opening statements and-at the end of trial:
Members of the jury, Dr. Barry Rives •was
sued in a medical malpractice case in case Vickie
Center v. Barry James Rives, M.D., et al. Dr. Barry
Rives was asked about the Vickie Center case under
oath, and he did not disclose the case in his
interrogatories or at his deposition. You may infer
4
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permitted respondents to introduce evidence of the Center case, it did not
make an express ruling on its admissibility until trial.
At trial, respondents mentioned the Center case roughly 180
times in front of the jury. Appellants objected several times, on various
grounds, including that the evidence was irrelevant and that the danger of
unfair prejudice, confusion of the issues, or misleading the jury
substantially outweighed the probative value of the Center case. While the
district court sustained some objections, it often allowed respondents to
point to the Center case in making arguments or questioning witnesses.
Respondents used the Center case to imply that Rives should have known
his behavior was negligent and hinted that Rives had a propensity to
commit malpractice. Respondents elicited that Vickie Center lost her legs
because of Rives's actions. The district court allowed an extended
examination of Rives regarding whether he informed Center's counsel of the
specifics of the Farris case a nd the extent of Vickie Center's similar injuries.
Respondents also mentioned the Center case in their closing argument.
The jury returned its verdict, concluding that Rives negligently
treated Farris, causing her injuries, and awarding respondents
$13,640,479.90 in total damages. The district court reduced the jury's
award of noneconomic damages to $350,000 pursuant to NRS 41A.035 and
entered a judgment for a total of $6,367,805.52. The district court granted
in part respondents motion for attorney fees and costs, awarding
that the failure to timely disclose evidence of a prior
medical malpractice lawsuit against Dr. Barry
Rives is unfavorable to him. You may infer that the
evidence of the other medical malpractice lawsuit
would be adverse to him in this lawsuit had he
disclosed it. This instruction is given pursuant to a
prior [c]ourt ruling.
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$821,468.66 consistent with NRCP 68 and NRS 7.095, or alternatively, as a
sanction for Rives's discovery behavior. Appellants appeal from the
judgment and the attorney fees and costs award, while respondents cross-
appeal from the judgment to contest the district court's application of NRS
41A.035.
DISCUSSION
Appellants did not waive their right to seek reversal and remand for a new
trial on appeal by not filing a motion for a new trial in district court
Appellants assert that the district court committed evidentiary
errors warranting reversal and remand for a new trial. Respondents argue
that by failing to file a motion for a new trial in district court, appellants
waived their ability to request a new trial on appeal. Respondents contend
that the failure to seek a new trial in district court deprives the court of the
chance to consider and correct any errors and prevents this court from
"conduct[ing] a proper review of whether the [d]istrict [c]ourt properly or
improperly granted a new trial because there is no appealable order to
review." They further argue that appellants "ask this Court to review, in
the first instance, their arguments for a new trial, which contain factual
issues and would convert this Court into a factfinder." We disagree.2
on Rust v. Clark County School District, 103 Nev. 686, 747
2 Re1ying
P.2d 1380 (1987), respondents also argue that we lack jurisdiction to
consider appellants challenges to the district court's oral evidentiary
rulings made at trial. In Rust, we held the following:
An oral pronouncement of judgment is not valid for
any purpose. therefore, only a written judgment
has any effect, and only a written judgment rnay be
appealed. The district court's oral pronouncement
from the bench, the clerk's minute order, and even
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While we have not explicitly addressed whether a party must
both object to trial rulings and file a motion for a new trial to preserve the
party's ability to request a new trial on appeal, the plain language of our
jurisdictional rule and the preserved error rule make it clear that a party is
not required to file a motion for a new trial to preserve the party's ability to
request such a remedy on appeal for harmful error to which the party
objected. First, NRAP 3A(a) expressly provides that "[a] party who is
aggrieved by an appealable judgment or order may appeal from that
judgnient or order, .with or without first moving for a new trial." The rule
thus contemplates this very situation. SeCond, it is well-established that a
timely objection alone is sufficient to raise and preserve an issue for
appellate review. See Thomas v. Hardwick, 126 Nev. 142, 155, 231 P.3d
1111, 1120 (2010) (concluding that when a trial court properly declines to
an unfiled written order are ineffective for any
purpose •and cannot be appealed.
Id. at 689, 747 P.2d at 1382 (internal citations omitted).. However. Rust
dealt with a premature notice of appeal filed prior to the district court
entering a written, final judgment and is plainly inapplicable here; where
appellants are appealing from a final, written judgment. Cf. Consol.
Generator-Nev., Inc. v. Cummins Engine Co., 114 Nev. 1304, 1312, 971 P.2d
1251, 1256 •(1998) (explaining that this court will review interlocutory
decisions that "are not independently appealable" in an appeal from a final
judgment). Moreover, NRS 47.040 provides both the authority and
framework for addressing alleged error in evidentiary rulings, depending
on whether a party preserved error through objection, as we have
recognized in various cases. See, e.g., Rimer v. State, 131 Nev. 307, 332, 351
P.3d 697, 715 (2015) (explaining that a party preserves a claim of error by
objecting and stating the grounds for the objection at trial); In re
128 Nev. 462, 468-69, 283 P.3d 842, 846-47 (2012) (observing that the scope
of review depends on whether a party preserved error by objecting to the
admission of evidence). Thus, we have the ability to review appellants'
evidentiary challenges, and nothing in Rust precludes our review.
give a definitive ruling on a pretrial 'notion, the contemporaneous objection
rule requires the party to object at trial in order to preserve its argument
on appeal); Landmark Hotel & Casino, Inc. v. Moore, 104 Nev. 297, 299, 757
P.2d 361, 362 (1988) ([F]ailure to object to a ruling or order of the court
results in waiver of the objection and such objection may not be considered
on appeal."); see also NRS 47.040(1)(a) (requiring "a timely objection or
motion to strike . . . stating the specific ground of objection" to preserve the
issue for appeal); cf. ln re J.D.N., 128 Nev. 462, 468, 283 P.3d 842, 846
(2012) (explaining that a party preserves a claim of error by objecting and
stating the grounds for the objection at trial). Taken together, these
authorities make clear 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. Such a holding is consistent with both the federal
approach and our past decisions considering a preserved error without the
appellant having moved for a new trial below.3 See, e.g., Richardson v.
Oldham, 12 F.3c11373, 1377 (5th Cir. 1994) ("Filing a Rule 59 motion is not
a prerequisite to taking an appeal . . . ."); Floyd v. Laws, 929 F.2d 1390,
1400-01 (9th Cir. 1991) (A question raised and ruled upon need not be
raised again on a motion for a new trial to preserve it for review."):
3While NRAP 3A(a) does not require a party move for a new trial prior
to bringing an appeal, we note that there are several practical benefits to
doing so. First, it allows the district court to correct alleged errors, which
allows for the prompt resolution of a case without potentially unnecessary
appellate litigation. Second, it develops a better record for appellate review
as the parties crystalize their arguments while giving the district court an
opportunity to fully articulate the reasoning for its evidentiary rulings.
Thus, while not required, moving for a new trial prior to pursuing an appeal
provides distinct benefits that litigants should consider prior to bringing an
appeal.
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LaBarbera v. Wynn Las Vegas, LLC, 134 Nev. 393, 398, 422 P.3d 138 142
(2018) (concluding the district court abused its discretion by excluding
certain pieces of evidence and remanding for a new trial without mentioning
whether the appellant filed a motion for a new trial before pursuing the
appeal).
Respondents contrary arguments are not persuasive, as the
Nevada cases on which they rely are either inapposite or distinguishable.
Neither Old Aztec Mine, Inc. u. Brown, 97 Nev. 49, 623 P.2d 981 (1981); nor
Schuck u. Signature Flight Support of Nevada, Inc., 126 Nev. 434, 245 P.3d
542 (2010), require a motion for a new trial as a prerequisite to filing an
appeal regarding an otherwise preserved error. In Old Aztec, this court
declined to consider the appellant's argument regarding its counterclaim
because it failed "to direct the trial court's attention to its asserted omission
to mention the counterclaim expressly in its judgment." 97 Nev. at 52-53,
623 P.2d at 983-84. It thus determined that the waiver doctrine rendered
the claim of unpreserved error unreviewable. In Schuck, the appellant
challenged summary judgment by raising several new legal arguments,
which this court refused to consider for the first time on appeal. 126 Nev.
at 436-38, 245 P.3d at 544-45. Neither case addressed whether a motion for
a new trial is required to preserve a claim of error for appellate review.
Further, the cases from other jurisdictions to which respondents point are
factually dissimilar in that the appellants either failed to preserve their
appellate arguments with timely objections at trial or the jurisdictions,
unlike Nevada, have procedural rules requiring a new trial motion before
appealing. See, e.g., State v. Davis, 250 P.2d 548', 549 (Wash. 1952)
(concluding that the appellant, who failed to object at the time the
prejudicial conduct occurred or to preserve the issue raised on appeal in any
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way, waived his argument. while observing that a new trial motion gives
"the trial court an opportunity to pass upon questions not before submitted
for its ruline without addressing whether the appellant would be required
to seek a new trial if he had objected to the prejudicial conduct during trial);
Spotts v. Spotts, 55 S.W.2d 977, 980 (Mo. 1932) (applying a Missouri statute
in concluding that appellant must object and file a new trial motion to
preserve a "writ of erroe challenge to a jury verdict). Accordingly,
appellants did not need to move for a new trial below to raise preserved
issues on appeal or to request a new trial as an appellate remedy for those
alleged errors.4
The district court abused its discretion by allowing evidence of the Center
malpractice case, and the error is not harmless
Appellants argue that the district court abused its discretion in
admitting evidence of the Center case because that evidence is irrelevant,
since an unrelated, prior medical malpractice suit does not address whether
Rives's conduct in this specific case fell below the applicable standard of
care. They further contend that the Center case evidence, even if relevant,
4R.espondents' remaining arguments on this issue are without merit.
They conflate the abuse-of-discretion standard of review •that applies to an
order granting or denying a motion for a new trial with the appellate
remedy of a new trial for harmful error. See NRCP 61 (addressing
correction of errors that affect the party's substantial rights at all stages of
the proceeding). Although they point out that there is no "order to review,"
appellants did not file a motion for a new trial, and thus, this court is not
tasked with determining whether the district court abused its discretion by
denying a motion for a new trial. Instead, appellants seek our review in
evaluating whether the district court erred by admitting or excluding
several pieces of evidence and whether those errors, preserved by timely
objections, are harmful. Similarly, respondents argument that appellants
seek to "convert this Court into a factfindee is misplaced, as this court is
merely conducting routine error analysis of several evidentiary rulings.
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is inadmissible because the danger of unfair prejudice, confusing the issues,
or misleading the jury substantially outweighs its probative value. We
agree.
Generally, relevant evidence is admissible, while •irrelevant
evidence is not admissible. NRS 48.025. Evidence is relevant if it "ha[s]
any tendency to make the existence of any fact . . . of consequence . . . more
or less probable than it would be without the evidence." NRS 48.015.
However, relevant "evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice, of confusion of
the issues or of misleading the jury." NRS 48.035(1). While evidence of a
doctor's other acts is inadmissible to show propensity, such evidence
"may.. . . be admissible for other purposes," such as to show "absence of
mistake or accident." NRS 48.045(2).
Reviewing for an abuse of discretion, Hansen v. Universal
Health Servs. of Nev., Inc., 115 Nev. 24, 27, 974 P.2d 1158, 1160 (1999), we
conclude that respondents did not present evidence regarding the Center
case for an admissible, relevant purpose, and thus it should have been
excluded. While respondents argue that the case is relevant to establish
that Rives's actions would cause foreseeable harm, the fact that Rives was
sued or acted inconsistently with the standard of care in a prior case does
not make it more or less probable that he acted below the standard of care
in this case. See Stottlernyer v. Ghramm, 597 S.E.2d 191, 194 (Va. 2004)
(affirming district court's exclusion of evidence of the doctor-defendant's
past medical malpractice • suits because lelvidence that a defendant was
negligent on a prior occasion simply has no relevance or bearing upon
whether the defendant was negligent during the occasion that is the subject
of the litigation"); cf. Mitchell v. Eighth Judicial Dist. Court, 131 Nev. 163,
11
174-75, 359 P.3d 1096, 1103-04 (2015) ("Of legal consequence to a medical
malpractice claim is whether the practitioner's conduct fell below the
standard of care, not why. Put another way, [plaintiff] wins if she shows
that [the practitioner's] misadministration of the anesthetic fell below the
standard of care and caused [the victim's] injuries; legally, [the
practitioner's] diminished capacity doesn't matter." (emphases and citation
omitted)). Thus, the alleged foreseeability of the harm is not relevant in
this kind of case, aside from the establishment of the standard of care
through experts. See Rees v. Roderiques, 101 Nev. 302, 304, 701 P.2d 1017,
1019 (1985) ("The standard of care to be applied in a medical malpractice
case is to be established by the testimony of expert witnesses with
knowledge of the prevailing standards.").
Even if the Center case evidence had been offered for an
admissible purpose, we conclude the district court abused its discretion in
admitting the evidence and allowing it to be presented so extensively
because the danger of unfair prejudice, confusing the issues, or misleading
the jury substantially outweighed the probative value of that evidence. The
Center case is somewhat factually similar to this case, but it arises from a
different surgery on a different patient on a different day with different
consequences. Introduction of such evidence injects a collateral matter into
appellants trial that would likely confuse the jury. See Hansen, 115 Nev.
at 27-28, 974 P.2d at 1160 (affirming a district court's exclusion of a •report
containing brief descriptions of medical complications experienced by the
doctor-defendant's patients who underwent the same surgery as the
plaintiff because "injecting these other cases into [the plaintiffs] trial would
prolong the trial, confuse the issues and divert the jury from [the plaintiffs]
case to collateral mattere); see also Kunnanz v. Edge, 515 N.W.2d 1.67, 171
12
(N.D. 1994) ("The purpose of [plaintiffs] proffered evidence was to show that
[defendant] was negligent in treating [a third party]. However, that
evidence was not admissible to show that [defendant] was negligent in
treating [plaintiff], and its introduction would have injected a collateral
matter into this trial and confused the jury."). Further, in addressing
whether appellants should be sanctioned for intentional concealment of the
Center case, respondents acknowledged that they thought the case was
useful to show propensity when •they stated that appellants "didn't want us
to know what [Rives] knew, what his knowledge level was. [Appellants]
didn't want us to know that he had gone through this exact same thing, had
the same opportunity to make good decisions and protect this patient but
failed to do so." Nevada law precludes admitting evidence for propensity
purposes.5 NRS 48.045(2) (prohibiting use of other wrongs or acts to prove
a person's character or to show •the•person acted in conformity therewith);
Bongiovi v Sullivan, 122 Nev. 556, 574, 138 P.3d 433, 447 (2006) (holding
that prior bad-acts evidence is inadmissible to prove propensity); see also
Bair v. Callahan, 664 F.3d 1225, 1229 (8th Cir. 2012) (concluding that
evidence of prior malpractice is inadmissible under Federal Rule of
Evidence (FRE) 404, which prohibits evidence of a person's character to
prove that on a particular occasion the person acted in accordance
therewith, because it allows the jury to infer the doctor has a propensity for
5This opinion does not concern the exception to this rule in NRS
48.045(3), which "permits the di-strict court to admit evidence of a separate
sexual offense for purposes of proving propensity in a sexual offense
prosecution" so long as that evidence is relevant, proven by a preponderance
of the evidence, and the danger of unfair prejudice does not substantially
outweigh the probative value of the evidence. Franks v. State, 135 Nev. 1,
2, 432 P.3d 752, 754 (2019).
13
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negligence); Lai v. Sagle, 818 A.2d 237, 247 (Md. 2003) ([S]imilar acts of
prior malpractice litigation should be excluded to prevent a jury from
concluding that a doctor has a propensity to commit medical malpractice.").
Respondents arguments to the contrary are unpersuasive.
First, they argue "that bias is a relevant inquiry into the Center case" but
fail to explain--here or below—how a prior medical malpractice case shows
that the doctor-defendant is biased. Thus, we need not consider this
argument. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38,
130 P.3d 1280, 1288 n.38 (2006) (explaining that this court will not consider
claims unsupported by cogent argument and relevant authority). Second,
they argue that the Center case is admissible under NRS 48.045(2) as modus
operandi evidence. However, modus operandi is a narrow exception
typically applied in criminal cases when there is a question regarding the
defendant's identity and a defendant has committed prior offenses in the
same unique way that would establish he is the offender in the present case.
See Rosky v. State, 121 Nev. 184, 197, 111 P.3d 690, 698 (2005) (holding that
the district court abused its discretion by admitting evidence of the
defendant's prior bad acts as modus operandi evidence because the
defendant's identity was not at issue during the trial). Here, it appears
respondents argue that the modus operandi exception applies to show
Rives's negligent surgical techniques, which is an inadmissible propensity
use of the evidence, as it encourages the jury to infer from Rives's prior act
that Rives has a propensity to commit medical malpractice; clearly, there
was no question about Rives's identity here.6
6At oral argument before this court, respondents asserted that the
evidence of the Center case was admissible for impeachment purposes. But
we need not consider this argument, as it was raised for the first time at
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Further, respondents arguments to the contrary
notwithstanding, the Center case evidence is not admissible to show
knowledge. The knowledge exception is typically applied to refute, among
other things, a defendant's claim that he was unaware of the illegality of
his conduct, not that he was aware his professional actions were negligent
on an earlier occasion, and thus, he knew he could potentially injure another
party in rendering similar professional services. See, e.g., Fields v. State,
125 Nev. 785, 792, 220 P.3d 709, 714 (2009) (explaining that a defendant's
"knowing participation in prior bad acts with" coconspirators may be used
to refute the defendant's claim that he was an unwitting or innocent
bystander to the crime); Cirillo v. State, 96 Nev. 489, 492, 611 P.2d 1093,
1095 (1980) (concluding that "evidence of previous instances of [drug]
possession may be used to show the defendant's knowledge of the controlled
nature of a substance, when such knowledge is an element of the offense
charged"); see also United States v. Vo, 413 F.3d 1010, 1019 (9th Cir. 2005)
(concluding that the defendant's prior conviction for drug trafficking was
admissible under FRE 404(b) because it "was evidence of his knowledge of
drug trafficking and distribution in generar and "tended to show that [the
defendant] was familiar with distribution of illegal drugs and that his
actions in this case were not an accident or a mistake"). Moreover, other
jurisdictions that addressed this issue have concluded that prior medical
oral argument. See State ex rel. Dein of Highways v. Pinson, 65 Nev. 510,
530, 199 P.2d 631, 641 (1948) ("The parties, in oral arguments, are confined
to issues or matters properly before the court. and we can consider nothing
else . . . ."). Even if we consider this argument, however, the numerous
times respondents mentioned the Center case and the scope of what was
mentioned far exceeded what would have been permissible for impeachment
purposes.
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malpractice suits do not fall within the knowledge exception, and we find
their reasoning persuasive. See, e.g., Bair, 664 F.3d at 1229 (rejecting the
appellant's argument that the doctor's past treatment of other patients is
admissible to show the doctor did not know how to properly carry out the
surgery because that "is not the kind of 'knowledge Rule 404(b)
contemplates," as the doctor "had the knowledge to perform the surgery"
due to his training and the appellant's evidence allows the jury to infer the
defendant "had a propensity to commit malpraCtice" (internal • quotation
marks omitted)).
Because the Center case was mentioned over 180 times during
trial, including details of how the patient went septic and her legs were
amputated, similar to—but worse than—the injuries suffered by Farris, the
error in admitting it was not harmless. Rather, the evidence had no
probative value, drew the jury's attention to a collateral matter, and likely
led to the jury drawing improper conclusions about Rives's propensity to
commit malpractice, unfairly prejudicing him.7 See Bongiovi, 122 Nev. at
7Whi1e the district court may have correctly determined that RiveS's
discovery behavior warranted sanctions, it nonetheless abused its
discretion by giving an adverse-inference instruction. See Bass-Davis v.
Davis, 122 Nev. 442, 447-48, 134 P.3d 103, 106 (2006) (reviewing a district
court's decision to give an adverse-inference instruction for an abuse of
discretion). As discussed above, the Center case evidence was inadmissible,
and a district court may not admit •otherwise inadmissible evidence as a
discovery sanction. See NRS 48.025(2) (Evidence which is not relevant is
not admissible."); NRS 48.035(1) (providing that otherwise relevant
evidence is not admissible if the danger of unfair prejudice substantially
outweighs the evidence's probative value). Further. an adverse inference
instruction is appropriate when evidence is lost or. destroyed. See Bass-
Davis, 122 Nev. at 448-49, 134 P.3d at 106-07. Here: the evidence was not
lost or destroyed, and Farris presented details regarding the Center case at
trial. Accordingly, the adverse inference instruction was improper.
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575, 138 P.3d at 447 (explaining that evidence is inadmissible if the danger
of unfair prejudice substantially outweighs the evidence's probative value).
Thus, we reverse the district court's judgment and remand for a new tria1.8
See Khoury v. Seastrand, 132 Nev. 520, 539, 377 P.3d 81, 94 (2016)
(concluding that an error is prejudicial, and thus reversible, when it affects
the party's substantial rights).
CONCLUSION
An appellant who made an evidentiary objection during trial
need not move for a new trial in the district court before filing an appeal to
preserve the appellate rem.edy of reversal and remand for a new trial.
Further, an appellate court has jurisdiction to review a district court's oral
evidentiary rulings made during the course of trial on appeal from a final
judgment. Additionally, evidence of a doctor's prior medical malpractice
suits is generally not relevant to whether the doctor met the standard of
care in the current malpractice lawsuit. On this record, we conclude the
district court abused its discretion by admitting evidence of the Center case
and that the error was not harmless due to the evidence's tendency to
encourage the jury to reach an improper propensity conclusion, as wéll as
to cause unfair prejudice to Rives due to the severe injuries suffered by that
81n light of our conclusion, we need not address appellants remaining
arguments. Similarly, we vacate the district court's order awarding
attorney fees and costs. As we are remanding for a new trial, the cross-
appeal regarding the district court's reduction of the noneconomic damages
awarded is similarly moot.
SUPREME COURT
OF
NEVADA
(0) 1947A 4E*
17
•
patient. Accordingly, we reverse the district court's judgment, vacate the
corresponding fees and costs order, and remand for a new trial.
J.
Cadish
We concur:
Parraguirre
Hardesty
AQ J.
Stiglich
J.
Silver
Pickering
Poe. J.
.
Herndon
SUPREME COURT
Of
NEVADA
18
(0) 1947A .41/p),
RIVES, M.D. v. FARRIS C/W 81052
Combined Opinion