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NEVADA Table of Contents Compiled and Edited by: Robert Dotson and Ilin Rocovits Laxalt & Nomura, LTD 9600 Gateway Drive Reno, Nevada 89521 Contact: Robert A. Dotson, Esq. Phone: (775) 322-1170 Fax: (775) 322-1865 http://www.laxalt-nomura.com Table of Contents TORT REFORM A Compendium of Tort Reform Enactments in All 50 States 1. Introduction – History of Tort Reform in NEVADA 2. Joint and Several Liability 3. Damage Caps 4. Punitive Damages 5. Medical Malpractice Reform 6. Products Liability Reform 7. Attorneys Fees 8. Practice Pointers 9. Special Issues 1. Introduction – Recent History of Tort Reform in Nevada Over the last several years, the Nevada legislature, following a growing trend in this country, has chosen tort reform to address the state’s ever expanding court dockets. While tort reform continues in all areas of litigation, the great majority of Nevada’s legislative enactments have specifically targeted medical malpractice claims. Beginning in 2002, the Nevada Legislature has enacted a series of new laws aimed at both limiting the number of medical malpractice claims filed as well as curbing excessive verdict awards arising out of such lawsuits. 2. Joint and Several Liability In 1987 the Nevada legislature limited the application of joint and several liability to cases involving strict liability, intentional torts, emission, disposal or spillage of toxic or hazardous substances, concerted action by co-defendants, or products liability so long as comparative negligence is asserted as a defense. NRS § 41.141. Thus, in cases where a colorable claim of comparative negligence has been raised each defendant is severally liable to the plaintiff only for that portion of the judgment which represents the percentage of negligence attributable to him. Id. In 2004 the Nevada Legislature further limited the application of joint and several liability in medical malpractice cases. NRS § 41A.045(1) provides that in an action for injury or death against a provider of health care1 based upon professional negligence,2 each defendant is liable to the plaintiff for both economic damages3 and non-economic damages4 severally only. This is a departure from prior medical malpractice statutes which provided several liability with respect to non-economic damages only. NRS § 41A.045(2) further provides that statute is intended to abrogate joint and several liability of a provider of health care in an action for injury or death against the provider of health care based upon professional negligence. 1 As used in this Chapter, "[p]rovider of health care" means a physician licensed under chapter 630 or 633 of NRS, dentist, licensed nurse, dispensing optician, optometrist, registered physical therapist, podiatric physician, licensed psychologist, chiropractor, doctor of Oriental medicine, medical laboratory director or technician, or a licensed hospital and its employees. NRS § 41A.017. 2 As used in this Chapter, "[p]rofessional negligence" means a negligent act or omission to act by a provider of health care in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death. The term does not include services that are outside the scope of services for which the provider of health care is licensed or services for which any restriction has been imposed by the applicable regulatory board or health care facility. NRS § 41A.015. 3 As used in this Chapter, "[e]conomic damages" includes damages for medical treatment, care or custody, loss of earnings and loss of earning capacity. NRS § 41A.007. 4 As used in this Chapter, "[n]oneconomic damages" includes damages to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damages. NRS § 41A.011. 3. Damage Caps a. Court Annexed Alternative Dispute Resolution To further address expanding court dockets, Nevada has enacted multiple court sponsored alternative dispute resolution programs designed to resolve civil disputes outside the district court forum. 1. Arbitration In 1992, to provide a simplified procedure for obtaining a prompt, economical and equitable resolution of certain civil cases, the Nevada Supreme Court created a mandatory court annexed non-binding arbitration program for cases commenced in judicial districts having populations of at least 100,000. Districts with smaller populations may voluntarily elect to participate in the program. NAR 1 & 2. Subject to certain exceptions, all civil cases commenced in Nevada District Court that have a probable jury award value not in excess of $40,000 (this figure varies by judicial district) per plaintiff are subject to the program. NAR 3. This form of alternative dispute resolution allows litigants to obtain relief outside the formal court setting. 2. Mediation Alternatively, any matter otherwise subject to the aforementioned arbitration program may be diverted to the Court Annexed Mediation Program upon stipulation of the parties. NMR 2. The Mediation Program is similarly designed to provide parties with a prompt, equitable, and inexpensive method of dispute resolution. NMR 1. Parties may choose from a randomly selected list of court approved mediators or stipulate to the use of a private mediator. NMR 3. 3. Short Trial Program Any matter not resolved in arbitration automatically enters the Short Trial Program subject to a party’s timely right to file a request to remove the case from the program and return it to the District Court trial docket. Alternatively, parties may agree to bypass arbitration altogether and enter the Short Trial Program directly. NSTR 4. The Short Trial Program expedites civil jury trials through procedures designed to control the length of the trial, including restrictions on discovery, the use of smaller juries, and time limits for presentation of evidence. NSTR 1(a). The parties may stipulate that the results obtained through the Short Trial Program are binding. NSTR 32. 4. Punitive Damages Nevada has also limited recovery of punitive damages. NRS § 42.005, enacted in 1989, provides that an award of exemplary or punitive damages may not exceed three times the amount of compensatory damages awarded to the plaintiff if the amount of compensatory damages is $100,000 or more or three hundred thousand dollars if the amount of compensatory damages awarded to the plaintiff is less than $100,000. The limitations on the amount of a punitive damage award do not apply, however, to cases involving products liability, insurance bad faith, federal or state discrimination statutes with punitive damage provisions, toxic waste, or defamation. 5. Medical Malpractice Reform a. Caps to Non-Economic Damages Nevada also recently limited the amount of non-economic damages recoverable in medical malpractice actions. NRS § 41A.035 enacted in 2004 provides that in an action for injury or death against a provider of health care based upon professional negligence, the injured plaintiff may recover non- economic damages, but the amount of non-economic damages awarded in such an action must not exceed $350,000. b. Emergency Room Negligence Enacted in 2002, NRS § 41.503 limits the liability of an individual who, in good faith, renders care or assistance in an emergency room setting. Any civil damage award arising out of any act or omission in rendering such care or assistance is capped at a maximum of $50,000. This limitation does not apply, however, to cases involving gross negligence or reckless, willful or wanton conduct. c. Other Limitations on Medical Malpractice Claims 1. Affidavit Requirement In 2002, the Nevada Legislature did away with the screening panel formerly charged with evaluating the viability of medical malpractice cases prior to filing. This screening process was replaced with a requirement that complaints in all such cases include an affidavit verifying the allegations contained therein. NRS § 41A.071 directs the district court to dismiss without prejudice any medical or dental malpractice action filed without an affidavit, supporting the allegations contained in the complaint. This affidavit must be executed by a medical expert who practices or has practiced in an area of medicine that is substantially similar to the type giving rise to the malpractice action. 2. Evidence of Collateral Source in Medical Malpractice More liberal evidentiary rules have impacted the way medical malpractice claims are litigated as well. NRS § 42.021 provides that defendants in medical malpractice actions may introduce evidence of any related collateral source payments including Social Security benefits, state or federal worker's compensation benefits, insurance benefits, or group medical benefits. If the defendant elects to introduce such evidence, however, the plaintiff may introduce evidence of any payments made to secure his right to any insurance benefits, which the defendant has introduced into evidence. 6. Product Liability Reform Nevada has not implemented any tort reform related to product liability. In fact, as described in section 4 above, the Nevada statute related to limiting exemplary and punitive damages specifically does not apply to cases involving product liability. 7. Attorneys Fees a. Cases Where Prevailing Party has Recovered less that $20,000 In Nevada the Court has discretion to award attorney’s fees in cases where the prevailing party has not recovered over $20,000. NRS 18.010. b. Offers of Judgment Nevada has both a statute and rule of civil procedure allowing offers of judgment. In Nevada an offer of Judgment can be made by Plaintiff or Defendant. (Standard info) 8. Practice Pointers a. Mandatory Pretrial Conference NRCP 16 provides to the Court discretion to direct attorneys and parties to appear before it for a conference. In the last several years many departments have incorporated this practice into their standard scheduling order and some require the event to occur very early in the litigation. It is not unusual to require the attendance of a party representative and/or insurer representative with complete settlement authority and many departments require that telephonic attendance or non-attendance be excused in writing and sanctions can and are often leveled for failure to comply. b. Trial Brief in Clark County As a consequence of a local rule unique to Clark County a civil trial memoranda can be submitted to the court prior to the commencement of trial without filing the same or serving the pleading upon opposing counsel. However, the pleading must be filed and served on opposing counsel at or before the close of trial. EJDCR 7.27. 9. Special Issues a. Amendments to the Nevada Rules of Civil Procedure In 2004, the Nevada Supreme Court issued an order amending the Nevada Rules of Civil Procedure. Effective January 1, 2005, these amendments were designed to bring the Nevada rules closer to their federal counterparts, although many differences still exist. Regardless, these amendments, specifically those addressing discovery, have had a notable impact on the way tort cases are litigated in this state. 1. NRCP 16.1 NRCP 16.1 addressing mandatory discovery requirements contains many revisions. Most significantly, the Rule imposes an affirmative duty to disclose certain basic information without a formal discovery request. Additionally, the new rule requires the disclosure of information regarding expert testimony including a written report delineating all opinions to be advanced at trial. 2. NRCP 30 Key revisions to NRCP 30 governing the noticing and taking of depositions include a provision allowing parties to choose the method of recording including nonstenographic means. Parties should be aware of the possibility that deposition testimony may be videotaped and advise their clients accordingly. A party can also now instruct a deponent not to answer a question under three circumstances: (1) to protect a privileged matter; (2) to enforce a court-directed limitation; or (3) to present a motion that the deposition is being taken in bad faith. 3. NRCP 37 Rule 37, governing the imposition of discovery sanctions, provides for the enforcement of new discovery requirements under NRCP 16.1 and NRCP 26. Rule 37 is also now the exclusive source for discovery sanctions in Nevada district court up to and including dismissal or default.
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