Las Vegas Injury & Accident Attorney Blog

Recently, A Nevada Jury awarded $500 Million in punitive damages to a couple infected with Hepatitis from an Endoscopy center.  It is well known the facility and its doctors, primarily Dr. Desai, reused Propofol vials (an anesthestic) on patients mixing the syringes and needles between patients cross contaminating.  It is well known the Doctors did not have the money to compensate the victims who have genetically linked their disease to the outbreak at the facility.   The jury awarded $5.1 Million in compensatory and then awarded the 1/2 billion dollar sum to punish the maker of the drug.  The convincing argument was the 50ml vials should not have been sold to centers that had minimal use for such large doses of medication.

This lawsuit was based on the Strict Products Liability Cause of Action that is a very strong action, if the Plaintiff’s can prove the product failed in its warnings, was defectively designed, or was mis-manufactured in some fashion.  The key here was the defectively designed containers that “encouraged” multi uses for business/profit reasons–allegedly.  The vials do have qualified uses in drip systems and other longer sleep patient procedures.  So, in essence, the company was punished by the jury (in this case Teva and Baxter Pharmaceuticals) for this “encouragement” in that they knew doctors may be reusing the vials and they helped in some fashion by making such a “large” dosage.  Whether or not personal injury lawyers are correct in their allegations, the jury believed the arguments and found not only that these companies were liable, but that they should be punished for their bad behavior.  Given that the combined annual revenue of these companies exceeds $13 billion, even the $500,000,000 is a slap on the wrist–but it would get any accountant’s attention.   So, one must contemplate whether the underlying case was justified.    To understand how a jury gets to this, one must understand that Negligence is not a bar to strict products liability.

The law is founded on the assumption that manufacturers need to make safe products–very safe products, or face severe ramifications for bad design, bad warnings, or bad product.  If a product is misused this is a defense to products liability.  And, arguably the doctors misused the “single” dose vials.  The jury did not believe this argument because they were not allowed to hear it!    The jury was barred from hearing testimony that doctors misused the vials given that this “negligence” was not a factor in the products liability action.  While this author did not sit through the trial and hear all the relevant testimony, the point is clear that the case was tried as a products case, and the jury found that the manufacturer was liable for creating an unreasonably dangerous product.     The absurd response comes from those who compare this scenario to that of a car driver who car drives 100 mph but yet the roads only allow for 55mph.  Should we sue the car manufacturer for the drivers error when he crashes doing 100mph?  Another comparison is one to cough syrup.  It comes in 10 oz bottles.  The consumer is “warned” to only take 2 tablespoons (one ounce).  If a consumer drinks the whole bottle, should we then sue Robitussan or Vick’s Cough syrup because the consumer did not follow the instructions?  Well, the crazier thing here, is not only was warning not obeyed, it was a doctor who did not obey it…

The Nevada Legislature has capped damages from Punitive damage awards limiting it to three times the amount of general damages per NRS 42.005. $300,000 cap for small verdicts (< $100K) and three times the verdict for those over $100K.  These do not, however, apply to Product’s Liability cases, nor insurance bad faith cases.   These are the most common cases a personal injury lawyer will  deal with, except perhaps the DUI driver Defendant where the conduct is so reckless it may amount to crossing the line of intentional conduct.

Given this, the only cap on product’s liability (e.g. Ford Motor, or Tire cases where there was malice or knowledge of the defect and a jury feels compelled to punish the manufacturer) is the Governing Cap developed by our very own US Supreme Court.  The US Supreme Court in a landmark decision BMW vs. Gore  outlined specific notions of fairness in a platform analysis for State Judges.  The platform looks at the following two prongs:  Reprehensibility & Ratio.  How bad was the conduct?  Did the malicious conduct affect safety? = Reprehensible Conduct and Ratio:  Are the two verdicts Compensatory and Punitive Damage awards have a common ratio so as to not deprive one of due process of law…property.  The guideline was basically a 10:1 ratio that they could not exceed when awarding a punitive damages awards.  Since this decision the Court has further narrowed the guidelines in decisions that we will not address here, but the point is clear that the Nevada Legislature has designed the guidelines for Product manufacturer’s to product safe products and do it with some integrity.   Below is the statute on Punitive damage guidelines for Nevada Cases:

NRS 42.005  Exemplary and punitive damages: In general; limitations on amount of award; determination in subsequent proceeding.

1.  Except as otherwise provided in NRS 42.007, in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the compensatory damages, may recover damages for the sake of example and by way of punishing the defendant. Except as otherwise provided in this section or by specific statute, an award of exemplary or punitive damages made pursuant to this section may not exceed:

(a) Three times the amount of compensatory damages awarded to the plaintiff if the amount of compensatory damages is $100,000 or more; or

(b) Three hundred thousand dollars if the amount of compensatory damages awarded to the plaintiff is less than $100,000.

2.  The limitations on the amount of an award of exemplary or punitive damages prescribed in subsection 1 do not apply to an action brought against:

(a) A manufacturer, distributor or seller of a defective product;

(b) An insurer who acts in bad faith regarding its obligations to provide insurance coverage;

(c) A person for violating a state or federal law prohibiting discriminatory housing practices, if the law provides for a remedy of exemplary or punitive damages in excess of the limitations prescribed in subsection 1;

(d) A person for damages or an injury caused by the emission, disposal or spilling of a toxic, radioactive or hazardous material or waste; or

(e) A person for defamation.

3.  If punitive damages are claimed pursuant to this section, the trier of fact shall make a finding of whether such damages will be assessed. If such damages are to be assessed, a subsequent proceeding must be conducted before the same trier of fact to determine the amount of such damages to be assessed. The trier of fact shall make a finding of the amount to be assessed according to the provisions of this section. The findings required by this section, if made by a jury, must be made by special verdict along with any other required findings. The jury must not be instructed, or otherwise advised, of the limitations on the amount of an award of punitive damages prescribed in subsection 1.

4.  Evidence of the financial condition of the defendant is not admissible for the purpose of determining the amount of punitive damages to be assessed until the commencement of the subsequent proceeding to determine the amount of exemplary or punitive damages to be assessed.

5.  For the purposes of an action brought against an insurance company.

In 2003, the Nevada Legislature created political campaign entitled, “Keep our doctors in Nevada.”  The argument was that due to medical malpractice insurance premium increases local doctors could no longer practice affordable medicine due to the escalating costs.   The Victim’s rights groups and Personal injury attorneys banned together to unsuccessfully fight this tort reform legislation.  In essence the laws were reformed to:

1.) Limit the amount of pain and suffering a victim could collect to $350,000; therefore a person who dies or is paralyzed gets only $350,000!

2.) Limit the attorney fees to discourage attorneys from taking good cases from 40-50% to 15% on amounts over $600,000.

3.) Reducing the time Victims have to sue from 2 years to 1 year; aka, the statute of limitations.

4.) Medical expenses and Wage losses (economic damages) are not part of the pain and suffering cap and are unlimited, but truly these costs are just reimbursement of costs and wages the client/victim would have made or need to make.

What these rules have done is effectively stopped good lawyers from taking good cases.  Unless a person understands why, they may disagree with this author.  We need to fight for just and fairer laws.  A laymen’s perspective may ask, “attorney fees seem like a lot for $15% over $600,000?”  Not true.  When personal injury lawyers decide whether they want to take a case they ask themselves:  Does the case have merit?  Is the case Just? Can we prove it?  Is the case worth it from a business standpoint? The official rule for attorney fees is: Forty percent of the first $50,000 awarded; 33 and one-third percent of the next $50,000; 25 percent of the next $500,000 awarded; and a cap of 15 percent for awards of $600,000 or more.

The first question is usually easy:  we simply ask another medical expert their opinion on the facts of the case and whether the doctor deviated from the standard of care.  Often, this is even easier if the facts indicate an obvious error. The next question is whether the case is Just?  This is simply a balancing test on whether the victim was so injured as to justify the need of litigation over the need to sue a caregiver.  Some cases are so minor that they don’t warrant a lawsuit.  The third question is a matter of proof.  Cancer victims often cry fowl that the doctor misdiagnosed the disease leading to a death.  These can be tough to prove:  would you have survived if they had diagnosed properly? –Tough question that borders on speculation, which is a fundamental basis, the law does not allow.  Can you prove that the doctor accidentally cut your bowels during the stomach operation leading to your infection, or was that an appendicitis issue?

THE BUSINESS DECISION:  RISK VS. REWARD

Also, a legal practitioner will always ask, “Does this case make economic sense?”  Most people don’t understand the personal injury lawyers take the case and front all the expenses necessary to perform a jury trial.  This is very, very expensive.  Each doctor that testifies, as an expert must be paid.  The victim usually can’t afford this, so the attorney’s front these costs.  Why would an attorney represent a victim that has suffered immensely, but the case is too expensive and the risk of losing is great.  They won’t.  Remember that law firms are businesses that employ many persons.  A firm can’t take too many losses or they wont operate; hence the art of case selection.  These laws create public policy; in essence, reducing the number of attorneys taking cases, which in turn, means they only take the most horrific, easy to prove, profitable cases.  The rest of the maimed public is stuck.

THE ULTIMATE RECOVERY

I don’t think anyone besides doctors will argue that $350,000 cap is fair.  There are just too many horrific injuries that justify more compensation.  This is just an idiotic law.  Forget attorneys, forget doctors, this is about injured victims—people who have been harmed and in essence are tortured for life.

THE TIME FRAME:  1 YEAR

This is also a horrible law.  One year is not enough time to realize you are injured due to malpractice, you must interview possible attorneys, collect all the necessary medical records which are normally stored in other states, hire an expert (which will also be located out of state), and finally, allow for a party to grieve.   If you lose a loved one, litigation and suing is not on the forefront of someone’s mind.  One year is simply too soon to be the cut-off.

THE OTHER TIME FRAME:  NOT MORE THAN THREE YEARS

If you have a sponge left in your abdomen after surgery, but it is not recognized for five years, you can’t sue!  Is that fair? No.  Enough said.

Our law firm handles mal-practice cases because we believe the system needs experience attorneys to protect the public from harmful doctors and to encourage proper medical treatment.  No one is above the law.  Contact  Benson and Bingham if you have been injured through no fault of your own.

NRCP 68 and NRS 17.115 are the governing rules for Offers of Judgments as they relate to prevailing parties.  These rules are extremely important for Las Vegas personal injury lawyers who litigate cases in Nevada.  A failure to properly submit an Offer of Judgment can cost your client dearly in attorney fees and costs.  Normally, costs are awarded to the prevailing party in a lawsuit.  The award of attorney fees, however, are governed under the rules of offers of judgment.  An offer of judgment (OOJ) can be submitted anytime after a party is served.  There are factors known as “Beatty Factors” that control specifics of the fairness of the OOJ; for example, the timing of the OOJ, and the fairness of the other parties knowledge of the facts so that they could actually make a reasonable assessment of the risk.  The failure of accepting an offer of judgment can cost the losing party thousands in attorney fees.

In the Estate of Miller, 125 Nevada Adv. Op. No. 42 September 24, 2009, the court ruled that judgment on Appeal can qualify as a “more favorable judgment” for purposes of the fee shifting provisions of the NRCP 68.  It also rules that appellate fees are recoverable, and that those pro se persons who represent themselves and later hire an attorney can get those fees awarded for the attorney who defended or prosecuted the case.

Settlements are sometimes the best way to go.   Victims in accident cases are often challenged with difficult questions arising from whether to settle a personal injury case, or whether to take the case in front of a jury.  In Nevada, 8 jurors and 1 or 2 alternates will make up the jury panel.  Of those 8 persons, 6 must agree (75%) on the verdict.  The verdict is a culmination of past and future pain and suffering, medical expenses, and wage loss in a personal injury case.   The jury must determine three things:  fault (liability), damages (the amount of appropriate compensation), and legal causation (what percentage or apportionment of the injuries claimed in the case are actually related to accident

Sometimes the Defendant will agree they are liable for the accident, but may dispute the neck injuries relate to the subject car accident; they may argue the cervical neck injuries relate to a previous accident or high school football injury for example.  Given the decisions that must be made by the jury, the decision to settle a case prior to a jury trial eliminates undue risk.

When liability and causation are clear, a damages trial is a great way to go given their is not as much risk.  The case then shifts from a “can we win” strategy to a “how much is it worth?” case.  So, when evaluating whether a case should be settled the risk factors must be considered.  Las Vegas Personal injury attorneys must educate their clients on the risks of taking a case to trial given that losing can not only be devastating to the victim’s emotions, but also their pocketbook as a losing party may incur attorney fees and litigation costs to the non-prevailing party.   The accident attorneys at Benson & Bingham understand that litigation has risks and appropriately advise when and when not to take the case to trial.

Never let your attorney make vital decisions without your knowledge.  Often this occurs when the clients are not available or have moved for whatever reason.  The difficulty is realizing this rule is the reality that some clients truly do disappear and the lawyer must make some decision to do the right thing. 

OPINION 35 - 12/11/06  It is unethical pursuant to RPC 1.2(a) for an attorney to include in a fee agreement a provision granting the attorney full and absolute discretion and authority to settle the case upon terms decided by the attorney.   Naturally, this rule does protect the client.

OPINION 36 – 01/08/07 An attorney may ethically borrow funds from a third-party lending institution for the purpose of obtaining funds for use in paying litigation costs. The attorney must agree to be responsible for the repayment of the loan, interest, and associated reasonable fees irrespective of the outcome of the litigation. Repayment of the loan may not be contingent on the success of the litigation for which the loan is obtained.  This now allows small firms to finance larger litigation cases without the need for in house capital.  Is this a correct rule?