130 Nev., Advance Opinion 514
IN THE SUPREME COURT OF THE STATE OF NEVADA
KAMI LEAVITT, No. 59369
Appellant,
vs.
JON L. STEMS, M.D.; AND STEMS
FILED
ADVANCED LASIK AND REFRACTIVE JUL 10 2014
SURGERY CENTER,
E K LINDEMAN
Respondents.
Appeal from a district court judgment on a jury verdict and
post-judgment orders in a medical malpractice action. Eighth Judicial
District Court, Clark County; Jerry A. Wiese, Judge.
Affirmed.
Christensen Law Offices, LLC, and Thomas F. Christensen, Las Vegas,
for Appellant.
Alverson, Taylor, Mortensen & Sanders and Chelsea R. Hueth and David
J. Mortensen, Las Vegas,
for Respondents.
BEFORE THE COURT EN BANC.
OPINION
By the Court, CHERRY, J.:
This appeal principally challenges the defendant's use of
expert testimony from the plaintiffs treating physician to explain a
possible alternate cause of the plaintiffs medical condition. The district
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court admitted the treating physician's testimony even though the entirety
of the testimony was not stated to a reasonable degree of medical
probability. We conclude that the district court correctly applied our
holding in Williams v. Eighth Judicial District Court, 127 Nev. , 262
P.3d 360 (2011), which clarified that a defense expert's alternativecausation testimony need not be stated to a reasonable degree of medical
probability when being used to challenge an element of the plaintiffs
claim.
We also take this opportunity to determine that ex parte
communication with an opposing party's expert witness is improper. If
such improper communication occurs, as it did in this case, a new trial is
warranted if prejudice is demonstrated. Because the expert's testimony
was not affected by the improper communication in this case, however,
appellant Kami Leavitt has not demonstrated prejudice, and thus, the
improper communication does not warrant a new trial.
We further address whether an employee's default may be
used against an employer codefendant who is contesting liability. Because
we conclude that it cannot, we affirm the district court's decision in this
case.'
'Leavitt also challenges the constitutionality of MRS 41A.071's
expert affidavit requirement. However, this issue is not reviewable
because Leavitt's attachment of an expert affidavit to the complaint
removed any element of harm that she may have experienced from the
alleged constitutional violation. Moreover, Leavitt has already paid for an
expert and that alleged injury cannot be redressed by this court.
Accordingly, Leavitt lacks standing because litigated matters "'must
present an existing controversy, not merely the prospect of a future
problem." Resnick v. Nev. Gaming Comm'n, 104 Nev. 60, 66,
752 P.2d
229, 233 (1988) (quoting Doe v. Bryan,
102 Nev. 523, 525,
728 P.2d 443,
continued on next page...
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FACTS
Leavitt met with respondent Jon L. Siems, M.D., for an initial
consultation for Lasik corrective vision surgery. Leavitt noted on her
patient intake form that she "always" had dry eyes. The same day, Dr.
Siems performed Lasik corrective surgery on both of her eyes. After the
surgery, Leavitt lost vision and experienced irritation; she later developed
other ocular complications. In the following years, her eyes suffered from
a number of conditions, including diffuse laminar keratitis (DLK) and
epithelial defects. 2 Leavitt underwent treatment by many specialists.
Leavitt subsequently sued Dr. Siems, respondent Siems
Advanced Lasik and Refractive Center, and a Siems Advanced Lasik
employee, Dr. Kathleen Wall, asserting claims for medical malpractice and
professional negligence. Dr. Siems and Siems Advanced Lasik answered,
asserting affirmative defenses of contributory negligence or wrongful
conduct and assumption of the risk. A default judgment was entered
against Dr. Wall, who was served via publication and did not answer or
appear in the district court.
The case went to trial against Dr. Siems and Siems Advanced
Lasik. By that time, Leavitt was experiencing constant pain and burning
in her eyes, had permanently lost visual function in her right eye, and had
only a possibility of slightly better than legally blind vision in the left eye.
...continued
444 (1986)); see Elley v. Stephens, 104 Nev. 413, 416,
760 P.2d 768, 770
(1988).
2DLK is an inflammatory response. An epithelial defect occurs when
the surface tissue of the eyeball has been abraded or sloughed off from
trauma, dry eyes, an infection, or the use of certain medications.
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At trial, defense counsel argued that Leavitt's eyes did not heal properly
because she abused numbing eye drops after the surgery, exacerbating her
eye problems. The defense argued that Leavitt's condition was consistent
with eye drop abuse.
To support the eye-drop-abuse argument, defense counsel
called one of Leavitt's treating physicians and expert witnesses, Dr.
Stephen Hansen, M.D., an ophthalmologist, to the stand. Dr. Hansen
testified that he had discharged Leavitt as a patient for noncompliance,
explaining that Leavitt had requested numbing eye drops and he felt that
she was stealing eye drops from his clinic because bottles went missing
after several of her appointments. He testified that the use of the
numbing eye drops may have caused her vision to deteriorate and
contributed to her lack of improvement. He also felt that had she followed
his directions, he could have returned her to her best corrective vision.
Leavitt, on the other hand, presented expert testimony that
Dr. Siems failed to exercise the proper standard of care in his preoperative
workup of the dry eye issue and by deciding to do the procedure on the
same day. Her expert explained that Leavitt's deteriorating vision was
not consistent with someone who abused numbing eye drops and that her
subsequent procedures were all a result of the Lasik surgery and the
ensuing inflammatory responses. Leavitt herself testified that, while she
had been given numbing eye drops by a couple of doctors in the past, she
stopped using the drops on the recommendation of one of her doctors.
Leavitt stated that she never took numbing drops from a doctor's office
without permission.
The jury returned a verdict for the defense, finding that Dr.
Siems was not negligent and did not proximately cause damages to
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Leavitt. Leavitt filed a motion for a new trial, or alternatively, for
judgment as a matter of law, based in part on what Leavitt argued was an
improper drug-abuse defense and on the use of Dr. Hansen's testimony to
establish an alternative cause of her condition without requiring that the
testimony be stated to a reasonable degree of medical probability.
Dr. Siems moved for attorney fees after trial. Attachments to
his motion contained line items for a conversation with Dr. Hansen's
business, Shepherd Eye Center, regarding Dr. Hansen's testimony, four
telephone conferences with Dr. Hansen, and four telephone conversations
with Dr. Hansen's counsel. Based on this, Leavitt's counsel raised the
issue that defense counsel was improperly directly communicating with
one of their witnesses, Dr. Hansen, and his staff.
The motion for new trial, or alternatively, for judgment as a
matter of law, was denied. The district court concluded that the purpose
of the drug-abuse theory was to contradict Leavitt's theory of negligence
and not to propose an independent alternative causation theory. The
court thus determined that Dr. Hansen's testimony was permissible under
Williams v. Eighth Judicial District Court, 127 Nev. , 262 P.3d 360
(2011), which provides that a defense expert's testimony regarding
alternative causation need not be stated to a reasonable degree of medical
probability when it is being used to controvert an element of the plaintiffs
claim, rather than to establish an independent theory of causation.
After judgment on the jury verdict was entered, Leavitt filed a
motion for final judgment in the district court, arguing that, because the
default against Dr. Wall established her liability and the defense had
admitted that Dr. Wall was an employee of Siems Advanced Lasik,
liability therefore attached to Siems Advanced Lasik as Dr. Wall's
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employer, notwithstanding the jury verdict. The district court declined to
impute Dr. Wall's liability to Siems Advanced Lasik. Leavitt appealed.
DISCUSSION
Admission of expert testimony
Leavitt argues that the district court did not properly apply
our holding in Williams v. Eighth Judicial District Court, 127 Nev. ,
262 P.3d 360 (2011), when the court concluded that Dr. Hansen's
testimony regarding the numbing eye drops did not have to meet the
reasonable-degree-of-medical-probability standard. Leavitt therefore
argues that the district court erred in admitting Dr. Hansen's testimony
and in denying her motion for a new trial or judgment as a matter of law.
We conclude that the district court correctly applied Williams.
In Williams, we clarified when medical expert testimony must be stated to
'a reasonable degree of medical probability." 127 Nev. at ,262 P.3d at
367-68 (quoting Morsicato v. Say-On Drug Stores, Inc.,
121 Nev. 153, 157,
111 P.3d 1112, 1115 (2005)). We explained that the application of the
reasonable-degree-of-medical-probability standard hinges on the purpose
of the testimony. Id. at
262 P.3d at 368. "Any expert testimony
introduced for the purpose of establishing causation must be stated to a
reasonable degree of medical probability. However, defense experts may
offer opinions concerning causation that either contradict the plaintiffs
expert or furnish reasonable alternative causes to that offered by the
plaintiff," without having to meet that standard. Id. at ,
262 P.3d at
368.
This distinction exists because "when defense expert
testimony regarding cause is offered as an alternative to the plaintiffs
theory, it will assist the trier of fact if it is relevant and supported by
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competent medical research." Id. at ,
262 P.3d at 367-68. Accordingly,
once a plaintiffs causation burden is met, the defense expert's testimony
may be used for either cross-examination or contradiction purposes
without having to meet the reasonable-degree-of-medical-probability
standard, so long as the testimony consists of competent theories that are
supported by relevant evidence or research. Id. "This lowered standard is
necessarily predicated on whether the defense expert includes the
plaintiffs causation theory in his or her analysis." Id. at ,
262 P.3d at
368.
Leavitt argues that Williams should not be applied in this case
because that opinion issued after the close of trial. However, retroactivity
is the default rule in civil cases. See Kaiser Aluminum & Chem. Corp. v.
Bonjorno, 494 U.S. 827, 847 (1990) (Scalia, J., concurring); United States
v. Sec. Indus. Bank, 459 U.S. 70, 79 (1982). The district court thus did not
err in applying Williams to this case.
Dr. Hansen's testimony satisfied the requirements of Williams and
was properly admitted
As to whether the district court properly applied our holding
in Williams, Leavitt contends that the court erred in finding that Dr.
Hansen's testimony was offered merely to contradict her expert's
testimony because the drug-abuse theory was an alternative causation
theory. Leavitt also argues that Dr. Hansen's testimony in that regard
should not have been admitted because it was too speculative, did not
assist the jury, and was not based on a reliable methodology. Leavitt
therefore contends that the district court erred in denying her motion for a
new trial and motion for judgment as a matter of law. Respondents
contend that Dr. Hansen's testimony was properly admitted because it
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merely contradicted Leavitt's causation theory, and thus, satisfied
Williams. They argue that the testimony concerning the eye drop abuse
was based on Dr. Hansen's training and experience with numbing eye
drops through his residency, cornea clinics, and 20 years of practice.
We review a district court's decision to admit expert testimony
for an abuse of discretion. Hallmark v. Eldridge, 124 Nev. 492, 498,
189
P.3d 646, 650 (2008). An abuse of discretion occurs when no reasonable
judge could reach a similar conclusion under the same circumstances. See
Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942).
We conclude that the district court did not abuse its discretion
in allowing the testimony from Dr. Hansen, because the testimony was not
offered as an alternative causation theory but for the purpose of
contradicting appellant's causation theory. Hallmark, 124 Nev. at 498,
189 P.3d at 650. Leavitt argued that her documented history of dry eyes
made her at high risk for complications such that Dr. Siems should have
provided additional testing, obtained additional informed consent, and
waited to perform the procedure and that his failure to do so led to her
long-term visual deterioration. To rebut the argument that the surgery
caused Leavitt's deteriorating vision, respondents called Dr. Hansen to
testify.
Dr. Hansen testified that it was a possibility that use of
numbing eye drops caused Leavitt's vision to deteriorate and that the
drops contributed to her lack of improvement. He testified that in his
opinion, based on speculation, if she had continued to follow his directions,
he could have returned her to her best corrective vision. Dr. Hansen
further testified that the drops did not cause her DLK or her initial
epithelial defect, but caused her additional injury.
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We conclude that respondents did not offer Dr. Hansen's
testimony to establish the alternative causation theory that Leavitt's eye
damage resulted from abuse of anesthetic drops rather than respondents'
actions Instead, his testimony was offered to "contradict the plaintiffs
expert or furnish reasonable alternative causes to that offered by the
plaintiff." Williams, 127 Nev. at , 262 P.3d at 368. It was offered to
rebut Leavitt's contention that her deteriorating eye condition was a result
of her surgery and show that Leavitt's deteriorating eye condition may
have resulted from eye drop abuse. Because Dr. Hansen's testimony was
only being used for cross-examination and contradiction, its admissibility
is determined by whether he offered relevant theories that are competent
and supported by relevant evidence or medical research. Id. at ,
262
P.3d at 368-69. If so, then it is admissible. Dr. Hansen's testimony meets
these requirements because his assessment was premised on his personal
observations that were based on his training and experience with numbing
eye drops' toxicity through his residency, cornea clinics, and 20 years of
practice.
We further conclude that Dr. Hansen properly testified as to
his opinions and inferences to rebut Leavitt's theory of causation and that,
even if portions of his testimony were speculative, it was for the jury to
assess the weight to be assigned to his testimony. NRS 50.305; Houston
Exploration Inc. v. Meredith, 102 Nev. 510, 513,
728 P.2d 437, 439 (1986)
(explaining in the context of a challenge to expert testimony as speculative
that it is "for the jury to determine the weight to be assigned such
testimony"). Accordingly, for the foregoing reasons, the district court did
not abuse its discretion in admitting Dr. Hansen's testimony on the basis
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that his testimony met the standard for expert testimony set forth in
Williams. 3
Witness tampering
Leavitt also argues that the district court erred in not
granting a new trial based on witness tampering where defense counsel
had direct, unauthorized communications with Dr. Hansen, who was
Leavitt's treating physician and was disclosed by Leavitt as an expert. 4 In
response, respondents argue that their communications with Dr. Hansen
and his staff were necessary to schedule and coordinate the trial
testimony. They contend that, accordingly, the communications did not
constitute attorney misconduct and were not improper. They also point
3 In light of this conclusion, reversal of the order denying judgment
as a matter of law and a new trial is not warranted. See Wyeth v. Rowatt,
126 Nev. „ 244 P.3d 765, 775 (2010) (reviewing a denial of a motion
for new trial for abuse of discretion and reviewing a district court's order
on a judgment as a matter of law de novo); Sheeketski v. Bortoli, 86 Nev.
704, 706,
475 P.2d 675, 676 (1970) ("[Al directed verdict. . . is permissible
only when all reasonable inferences from the facts presented to the jury
favor the moving party."); see NRCP 59(a) (stating that a party is entitled
to a new trial only if his or her substantial rights were materially
affected).
4 Leavitt was first apprised of this issue after trial when reviewing a
motion for attorney fees from defense counsel that contained line items of
the ex parte conversations. Her counsel then orally raised this issue at
the hearing on the motion for new trial. While the district court did not
address this argument in its new trial order, we consider the district
court's silence as a denial of the sought-after relief. See Sicor, Inc. v.
Sacks, 127 Nev. „ 266 P.3d 618, 620 (2011) (explaining that this
court has "construed a district court's silence or refusal to rule as denial of
the relief sought").
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out that Leavitt failed to demonstrate how her substantial rights were
affected by their communication with Dr. Hansen.
Bringing a claim for personal injury or medical malpractice
results in a limited waiver of the physician-patient privilege with regard
to directly relevant and essential information necessary to resolve the
case. See Heller v. Norcal Mitt. Ins. Co., 876 P.2d 999, 1019 (Cal. 1994)
(Kennard, J., concurring and dissenting). In this context, we have yet to
address whether opposing counsel may contact or communicate with a
treating physician directly, or whether all communications must be
through formal discovery methods. While numerous courts have already
addressed this issue, no clear-cut answer has emerged. See King v.
Ahrens, 798 F. Supp. 1371, 1373 (W.D. Ark. 1992) ("It appears that there
is no easy answer to this question and a variety of rules have developed.");
Heller, 876 P.2d at 1019 (Kennard, J., concurring and dissenting)
("Published decisions of federal courts and courts of our sister states have
debated this question with great thoroughness and have given conflicting
answers.").
Some courts permit ex parte communications between defense
counsel and a plaintiffs treating physician. See, e.g., Felder v. Wyman,
139 F.R.D. 85, 88 (D.S.C. 1991); Doe v. Eli Lilly & Co.,
99 F.R.D. 126, 128-
29 (D.D.C. 1983); Trans-World Divs. v. Drobny, 554 P.2d 1148, 1151-52
(Alaska 1976); Domako v. Rowe, 475 N.W.2d 30, 36 (Mich. 1991); Lewis v.
Roderick, 617 A.2d 119, 122 (R.I. 1992). Other jurisdictions prohibit such
ex parte communications undertaken without express consent. See, e.g.,
Roosevelt Hotel Ltd. P'ship v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986);
Alsip v. Johnson City Med. Ctr., 197 S.W.3d 722, 727 (Tenn 2006); Smith
v. Orthopedics Ina, Ltd., 244 P.3d 939, 943 (Wash. 2010); see also Daniel
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P. Jones, Annotation, Discovery: Right to Ex Parte Interview With Injured
Party's Treating Physician, 50 A.L.R.4th 714, 716-18 (1986).
Our adoption of one approach over the other greatly depends
on the existing rules relating to the physician-patient privilege and expert
witnesses in Nevada. The physician-patient privilege is codified at NRS
49.225 and states that "[a] patient has a privilege to refuse to disclose and
to prevent any other person from disclosing confidential communications
among the patient, the patient's doctor or persons who are participating in
the diagnosis or treatment under the direction of the doctor, including
members of the patient's family." Only under certain circumstances does
the privilege not apply. As germane to this case, the privilege does not
apply "to written medical or hospital records relevant to an issue of the
condition of the patient in any proceeding in which the condition is an
element of a claim or defense." NRS 49.245(3) (emphasis added).
As to expert witnesses, the Nevada Rules of Civil Procedure
affirmatively allow only formal depositions of experts. NRCP 26(b)(4), the
discovery provision governing experts, provides in relevant part that:
(A) A party may depose any person who has
been identified as an expert whose opinions may
be presented at trial. . . .
(B) A party may, through interrogatories or
by deposition, discover facts known or opinions
held by an expert who has been retained or
specially employed by another party in
anticipation of litigation or preparation for trial
and who is not expected to be called as a witness
at trial, only as provided in Rule 35(b) [5] or upon a
NRCP 35(b) provides that the party causing the examination shall,
5
upon request, provide a written report setting out all findings
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showing of exceptional circumstances under which
it is impracticable for the party seeking discovery
to obtain facts or opinions on the same subject by
other means.
(Emphasis added.) This rule does not contemplate ex parte
communications with the opposing party's expert witnesses.
Moreover, as previously explained by the Ninth Circuit Court
of Appeals, professional ethics rules preclude defense counsel from
speaking directly to the opposing counsel's expert. Erickson v. Newmar
Corp., 87 F.3d 298, 301 (9th Cir. 1996). In Erickson, the Ninth Circuit
interpreted the Nevada Rules of Professional Conduct to determine
whether an attorney's ex parte communications with the opposing party's
witness constituted misconduct. 87 F.3d at 301-02. The court concluded
that legal ethics precluded defense counsel from speaking directly to
opposing counsel's expert and offering him a job. Id. at 300-02. In doing
so, the court explained that a leading legal ethics treatise states that:
"Since existing rules of civil procedure carefully
provide for limited and controlled discovery of an
opposing party's expert witnesses, all other forms
of contact are impliedly prohibited." Therefore, an
attorney who engages in prohibited
communications violates the attorney's ethical
duty to obey the obligations of the tribunal.
Id. at 301-02 (citation omitted) (quoting 2 Geoffrey C. Hazard & W.
William Hodes, The Law of Lawyering § 3.4:402 (2d ed. Supp. 1994)); see
RPC 3.4(c). "Moreover, since the procedure for the discovery of experts is
well established, an attorney may also be in violation of the rule
prohibiting conduct prejudicial to the administration of justice." Erickson,
87 F.3d at 302 (citing former SCR 203(4) (1986) (now RPC 8.4(d))).
Because 'formal discovery procedures enable defendants to
reach all relevant information while simultaneously protecting the
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patient's privacy by ensuring supervision over the discovery process,' we
see no need to allow for such ex parte contact. Alsip, 197 S.W.3d at 727
(quoting Crist v. Moffatt, 389 S.E.2d 41, 46 (N.C. 1990)). There are also
methods available to defense counsel to ensure that plaintiffs experts
appear to testify at trial, such as subpoenas. See NRCP 45. While we
recognize that the use of formal discovery procedures burdens defendants,
this burden is outweighed by problems intrinsic in ex parte contact.
Smith, 244 P.3d at 943. Given our adversarial system, allowing ex parte
communications opens the door for abuse. Alsip, 197 S.W.3d at 729 n.5;
see Manion v. N.P.W.•Med. Ctr., Inc., 676 F. Supp. 585, 594 (M.D. Pa.
1987), disagreed with by MacDonald v. United States, 767 F. Supp. 1295,
1299 n.5 (M.D. Pa. 1991).
Moreover, "'it is undisputed that ex parte conferences yield no
greater evidence, nor do they provide any additional information, than
that which is already obtainable through the regular methods of
discovery.' Alsip, 197 S.W.3d at 727 (quoting Petrillo v. Syntex Labs.,
Inc., 499 N.E.2d 952, 956 (Ill. App. Ct. 1986)). Additionally, "ex parte
discussions tend to place the physician in the position of having to make
legal conclusions about the scope of the privilege and the relevancy of the
material requested." King, 798 F. Supp. at 1373. "Asking the physician,
untrained in the law, to assume this burden is a greater gamble and is
unfair to the physician." Roosevelt Hotel, 394 N.W.2d at 357. The use of
formal discovery procedures is also motivated by "the potential tort
liability of physicians for breach or invasion of privacy, the potential that
defense counsel may seek to improperly influence plaintiffs treating
physician or may discourage the physician from testifying, the duty of
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loyalty from the physician to the patient, and the view that discovery rules
determine the extent of waiver of the physician-patient privilege." Jones,
supra, at 717-18.
This approach also protects the confidential and intimate
nature of the relationship between the physician and patient. Alsip, 197
S.W.3d at 726; see also King,
798 F. Supp. at 1373; Heller,
876 P.2d at
1021 (Kennard, J., concurring and dissenting). Patients have a right to
expect that their medical information will be safeguarded by the discovery
process. Manion, 676 F. Supp. at 594; Petrillo,
499 N.E.2d at 961-62.
Balancing the desire for confidentiality with the need for full
disclosure of relevant medical information, we conclude that there is no
need to allow ex parte communication with the opposing party's experts
absent express consent. Thus, the respondents' conversations• with
Leavitt's expert witness were improper.
Respondents acted suspiciously when they failed to inform
Leavitt that they were using their reserved right to call Dr. Hansen to the
stand and instead coordinated his testimony directly. Under the standard
of proof required for motions for a new trial, however, Leavitt failed to
show that she had been harmed because Dr. Hansen's testimony did not
change as a result of the communications. Edwards Indus., Inc. v.
DTE I BTE, Inc., 112 Nev. 1025, 1037,
923 P.2d 569, 576 (1996) (stating
that if the challenged issues would not have changed the outcome of the
case, there is no violation of the party's substantial rights and thus no
basis for granting a new trial); see also Bayerische Motoren Werke
Aktiengesellschaft v. Roth, 127 Nev. „ 252 P.3d 649, 656 (2011) ("To
justify a new trial, as opposed to some other sanction, unfair prejudice
affecting the reliability of the verdict must be shown.").
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In his pretrial deposition, Dr. Hansen indicated that he
discharged Leavitt after treating her for several months because he
believed that she was noncompliant and was stealing eye drops from
examination rooms. He testified that he had repeatedly stressed to
Leavitt that she should not use topical anesthetics because of the
resultant damage to her eyes, and that it was his opinion that Leavitt's
abuse of the drops contributed to her worsening condition. Dr. Hansen
further testified that he felt that great progress had been made and that
she likely would have recovered her vision if she had allowed him to treat
her and had stopped using the topical anesthetics.
This testimony is consistent with the testimony provided by
Dr. Hansen at trial. Because Dr. Hansen's testimony did not change as a
result of respondents' counsel's contact with Dr. Hansen, Leavitt failed to
demonstrate any prejudice resulting from the improper ex parte
discussions. Thus, a new trial was not warranted. Wyeth v. Rowatt, 126
Nev. „ 244 P.3d 765, 775 (2010) (stating that the denial of a motion
for new trial is reviewed for abuse of discretion). We therefore affirm the
district court's denial of Leavitt's new trial motion on this basis. 6
Default judgment
Finally, Leavitt argues that the district court erred in entering
default judgment solely against Dr. Wall individually, and not also as an
employee of Siems Advanced Lasik, because Leavitt alleged that Dr. Wall
6 Leavitt also takes issue with the propriety of a plaintiff's treating
physician testifying as an expert for the defense, but her failure to object
to his testimony on this basis in the district court results in waiver of this
issue. See Holcomb w Ga. Pac., L.L.C., 128 Nev. , n.3, 289 P.3d
188, 191 n.3 (2012) (recognizing that this court will not consider an
argument raised for the first time on appeal).
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was acting within the scope of her employment. Leavitt asserts that
because liability and causation against Dr. Wall were established upon
entry of the default, Siems Advanced Lasik was precluded from asserting
any defenses available to Dr. Wall and, thus, must be held vicariously
liable for Dr. Wall's negligence. Respondents argue that the use of
vicarious liability against Siems Advanced Lasik would deprive it of its
right to have a jury determine the validity of its defense.
We decline to extend Dr. Wall's inability to contest liability
and causation to Siems Advanced Lasik. In Nevada, "the answer of a co-defendant inures to the benefit of a defaulting defendant when there
exists a common defense as to both of them." Sutherland v. Gross, 105
Nev. 192, 198,
772 P.2d 1287, 1291 (1989) "Likewise, when the defenses
interposed by the answering co-defendant call into question the validity of
plaintiffs entire cause of action and when such defenses prove successful,
the defenses inure to the benefit of the defaulting co-defendant." Id.
In arguing that Dr. Wall's default should attach to answering
codefendants, Leavitt attempts to turn Sutherland on its head. Default
judgments are punitive sanctions that are not favored by the law.
Stillwell v. City of Wheeling, 558 S.E.2d 598, 605-06 (W. Va. 2001). And
we decline to use a default judgment as a foundation for vicarious liability
against an answering codefendant. See W. Heritage Ins. Co. v. Superior
Court, 132 Cal. Rptr. 3d 209, 221 (Ct. App. 2011) ("It is an established
principle of law that admissions implied from the default of one defendant
ordinarily are not binding upon a codefendant who, by answering,
expressly denies and places in issue the truth of the allegations thus
admitted by the absent party." (internal quotations omitted)); Morehouse
v. Wanzo, 72 Cal. Rptr. 607, 611 (Ct. App. 1968) ("The general contractor,
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as an employer liable under the doctrine of respondeat superior, may take
advantage of any favorable aspects of the judgment against the employee,
but he is not bound by the issues resolved against the employee by the
latter's default."); Dade Cnty. v. Lambert, 334 So. 2d 844, 847 (Fla. Dist.
Ct. App. 1976) (finding that county could not be held vicariously liable
based on its employee's failure to plead, and stating "[t]he default of one
defendant, although an admission by him of the allegations of the
complaint, does not operate as an admission of such allegation as against
a contesting co-defendant"); United Salt Corp. v. McKee, 628 P.2d 310, 313
(N.M. 1981) (holding that an employer is not foreclosed from litigating
issues of negligence, respondeat superior, and damages based on an
employee's default); Balanta v. Stanlaine Taxi Corp., 763 N.Y.S.2d 840,
842 (App. Div. 2003) (stating that "[t]he granting of a default judgment
against [the employee] does not preclude [the employer] from contesting
the issue of [the employee's] negligence"). We thus decline to impose Dr.
Wall's default on Siems Advanced Lasik, and therefore, we affirm the
district court's order entering judgment against Dr. Wall individually
only. 7
CONCLUSION
We conclude that the district court appropriately applied our
decision in Williams v. Eighth Judicial District Court, 127 Nev. , 262
P.3d 360 (2011), which clarified existing law on medical expert testimony,
to the case at hand. We also reiterate that ex parte communication with
an opposing party's expert witness is improper. Because Leavitt has not
7 Having considered all of the other issues raised by the parties, we
conclude that they either lack merit or need not be addressed given our
disposition of this appeal.
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demonstrated prejudice, however, the improper communication does not
warrant a new trial in this instance. We further determine that Dr. Wall's
default may not be used against Siems Advanced Lasik as an answering
employer codefendant who is contesting liability. Accordingly, we affirm
the district court's judgment and post-judgment orders in this case.
, C.J.
Gibbons
ti(44 J.
Pickering
J.
Hardesty
P LAAn
Parraguirre
, J.
\Dail /(42 J.
Dougla
J.
Saitta
SUPREME COURT
OF
NEVADA
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(0) I947A .4E>
