RIVES, M.D. v. FARRIS C/W 81052
2022 NV 17
| Nev. | 2022Background
- Titina Farris underwent two hernia surgeries by Dr. Barry Rives (2014 and 2015); during the second, Rives caused two small colonic perforations that were stapled; Farris later developed sepsis and bilateral drop foot.
- Five months before Farris’s surgery, a different patient (Vickie Center) sued Rives for malpractice after a hernia surgery; the same defense firm represented Rives in both matters.
- Rives did not list the Center lawsuit in his interrogatory responses in the Farris case; respondents discovered the omission, deposed Rives, and moved for sanctions alleging intentional concealment.
- The district court found Rives relied on counsel and gave an adverse-inference instruction; at trial the court permitted repeated references (≈180 mentions) to the Center case and details of Center’s severe injuries.
- The jury awarded over $13 million; statutory noneconomic damages were reduced, producing a judgment of about $6.37 million; the court awarded attorneys’ fees and costs; appellants appealed and respondents cross-appealed.
- The Nevada Supreme Court reviewed whether (1) appellants waived appellate review by not moving for a new trial, (2) the Center-case evidence and the adverse-inference instruction were admissible, and (3) any error was harmless.
Issues
| Issue | Plaintiff's Argument (Farris) | Defendant's Argument (Rives) | Held |
|---|---|---|---|
| Whether failing to move for a new trial below waived the right to ask for a new trial on appeal | A new-trial motion is not required; timely objections preserve appellate rights | Failure to move below waived review and deprived courts opportunity to correct errors | Court: No waiver — NRAP 3A(a) and preserved objections suffice; moving for new trial not required (but practically advisable) |
| Admissibility of evidence of prior malpractice (Center case) | Inserting Center case was relevant to foreseeability/knowledge and supported sanctions; admissible for impeachment/modus operandi/knowledge | Prior suit is irrelevant to negligence in this case; admission was prejudicial and encouraged propensity inference | Court: Abuse of discretion to admit — prior malpractice suit not probative of negligence here and was substantially outweighed by unfair prejudice |
| Appropriateness of adverse-inference instruction for nondisclosure | Instruction justified to sanction concealment and inform jury of adverse inference | Instruction improper because evidence was not lost/destroyed and underlying evidence was inadmissible | Court: Instruction improper — sanction could not justify admitting otherwise inadmissible evidence nor an adverse-inference instruction in these circumstances |
| Harmless-error and remedy (verdict, fees, cross-appeal) | Admission and instruction were harmless given other evidence (respondents' position at trial) | Errors were prejudicial and affected substantial rights | Court: Error was harmful — reversed judgment, vacated fees/costs, remanded for a new trial; cross-appeal moot as to noneconomic damages |
Key Cases Cited
- Rust v. Clark County School Dist., 103 Nev. 686, 747 P.2d 1380 (1987) (oral bench pronouncements are without effect absent a written judgment)
- Thomas v. Hardwick, 126 Nev. 142, 231 P.3d 1111 (2010) (timely objection preserves evidentiary claims for appeal)
- Rimer v. State, 131 Nev. 307, 351 P.3d 697 (2015) (preservation rule for evidentiary objections)
- In re J.D.N., 128 Nev. 462, 283 P.3d 842 (2012) (scope of review depends on preserved objections)
- Hansen v. Universal Health Servs. of Nev., Inc., 115 Nev. 24, 974 P.2d 1158 (1999) (excluding collateral prior cases to avoid confusion and prejudice)
- Bongiovi v. Sullivan, 122 Nev. 556, 138 P.3d 433 (2006) (prior bad-acts evidence inadmissible to prove propensity)
- Bass-Davis v. Davis, 122 Nev. 442, 134 P.3d 103 (2006) (adverse-inference instruction reviewed for abuse of discretion)
- Khoury v. Seastrand, 132 Nev. 520, 377 P.3d 81 (2016) (prejudice standard for reversible error)
- LaBarbera v. Wynn Las Vegas, LLC, 134 Nev. 393, 422 P.3d 138 (2018) (remand for new trial for erroneous exclusion/admission of evidence)
- Richardson v. Oldham, 12 F.3d 1373 (5th Cir. 1994) (federal precedent that filing a new-trial motion is not a prerequisite to appeal)
- Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991) (a question ruled upon need not be raised again in a new-trial motion to preserve review)