131 Nev., Advance Opinion 64
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
ANIKA FRAZIER, INDIVIDUALLY; No. 61775
AND RANDY KEYS, INDIVIDUALLY,
Appellants,
vs. FILED
PATRICK DRAKE, INDIVIDUALLY;
AND MS CONCRETE COMPANY, INC., SEP 0 3 2015
Respondents.
Appeal from a district court judgment on a jury verdict in a
personal injury action. Eighth Judicial District Court, Clark County;
Doug Smith, Judge.
Affirmed in part, reversed in part, and remanded.
Greenman Goldberg Raby & Martinez and Aubrey Goldberg, Las Vegas;
Walsh & Friedman, Ltd., and Robert J. Walsh, Las Vegas,
for Appellants.
Hall Jaffe & Clayton, LLP, and Steven T. Jaffe and Ashlie L. Surur, Las
Vegas,
for Respondents.
BEFORE GIBBONS, C.J., TAO and SILVER, JJ.
OPINION
PER CURIAM:
This matter arises from a personal injury action initiated by
appellants following a motor vehicle accident in which their vehicle was
rear-ended by a semitrailer truck driven and owned by respondents. A
jury trial of appellants' claims resulted in a verdict in respondents' favor,
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and the district court later denied appellants' motion for a new trial The
district court further awarded respondents attorney fees and costs, the
latter of which included an award of expert witness fees.
In this appeal, we are presented with two novel issues. First,
we must determine whether a district court abuses its discretion in
awarding attorney fees when parties fail to improve upon rejected offers of
judgment at trial, but the district court concludes that all of the Beattie v.
Thomas, 99 Nev. 579,
668 P.2d 268 (1983), factors other than the
reasonableness of the requested fees favor the parties who rejected the
offers of judgment. Second, we address the considerations that a district
court must weigh in deciding whether to award expert witness fees as
costs in excess of NRS 18.005(5)'s $1,500 per-expert presumed maximum
and, if such an award is to be made, in determining what amount
constitutes a reasonable award beyond this statutory ceiling
Before reaching these issues, however, we must first evaluate
whether the district court properly instructed the jury on sudden
emergencies. The three sudden emergency instructions at issue here all
stated that the jury could find that respondents were not negligent if they
were suddenly placed in a position of peril through no fault of their own
and acted as reasonably prudent people would upon being confronted with
that emergency. We must also determine if a new trial was warranted
because the jury disregarded instructions regarding the applicable
standard of care. Because evidence was presented indicating that bees
flew into the cabin of respondents' truck, and one bee landed on the eye of
the driver, these facts could allow the jury to infer that a sudden
emergency occurred and that respondents were not negligent. Thus, the
district court did not abuse its discretion by giving the sudden emergency
jury instructions. We further conclude that the jury's verdict does not
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demonstrate that the jury disregarded the given instructions. We
therefore affirm the judgment on the jury verdict and the denial of
appellants' motion for a new trial.
Turning to the award of attorney fees, the reasonableness of
the fees requested cannot, by itself, outweigh the other three Beattie
factors. As a result, we conclude the court abused its discretion by
awarding attorney fees to respondents based on the rejected offers of
judgment, and we reverse that award. Finally, with regard to the expert
witness fees award, we note that the Nevada Supreme Court has provided
only limited guidance on this issue. Thus, we adopt factors to guide the
district courts in assessing the reasonableness of such requests and
whether the circumstances surrounding the expert's testimony require an
award in excess of NRS 18.005(5)'s per-expert presumptive maximum.
Here, the district court provided only limited justification for its decision
to award expert witness fees in excess of $1,500 per expert and offered no
explanation for how it arrived at the amount of expert witness fees
awarded. We therefore reverse the award of expert witness fees as costs
and remand this matter to the district court for further proceedings
consistent with this opinion.
BACKGROUND
Respondent Patrick Drake was an employee of respondent MS
Concrete Company, Inc. On the day of the incident, Drake was driving an
MS Concrete semitrailer truck on a major road in North Las Vegas. As he
was driving, bees flew into the truck's cabin,' and one bee purportedly
landed on his eye. While Drake attempted to remove the bee from his eye,
lAccording to Drake, numerous bees flew into the cabin of the truck.
After the accident, a responding police officer noted a few dead bees on the
truck's front grill as well as one live bee inside the cabin.
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he failed to observe a stoplight and rear-ended appellants Anika Frazier
and Randy Keys, whose vehicle was stopped at the light. Frazier and
Keys (collectively referred to as Frazier, except where the context requires
otherwise) suffered injuries in the accident and subsequently initiated the
underlying personal injury action against Drake and MS Concrete
(collectively referred to as Drake).
Approximately one month before trial, and nearly three years
after the complaint was filed, Drake made an offer of judgment to each
appellant pursuant to NRCP 68 and NRS 17.115. Frazier and Keys each
rejected the offers, which were for $50,001 and $70,001, respectively.
During the trial, Drake presented his defense that the bee
landing on his eye constituted a sudden emergency rendering him unable
to avoid the accident. Based on this defense, Drake sought to have the
jury instructed that, if it found that the bee landing on his eye constituted
a sudden emergency, he only had a duty of care equal to that of a
reasonable person faced with the same situation. Over Frazier's
objections, the court instructed the jury on sudden emergencies, 2 and the
jury ultimately found in favor of Drake. Frazier then moved for a new
trial, arguing that the sudden emergency instructions should not have
been given and that the jury ignored the court's instruction regarding
Drake's standard of care in reaching its verdict. Drake opposed this
motion, which the district court ultimately denied.
In addition, Drake moved for attorney fees and costs, citing
Frazier's and Keys' failure to improve upon the offers of judgment at trial
and Drake's status as a prevailing party. Drake's motion sought both
Frazier does not challenge the substance of these instructions on
2
appeal, and thus, they are not reproduced within this opinion.
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general costs and $107,635.73 in fees for five expert witnesses. Frazier
opposed the motion, arguing that awarding attorney fees was not proper
under the Beattie factors and that the requested costs, particularly the
expert witness fees, were excessive. Ultimately, the district court granted
Drake's motion in part. Despite finding that three of the four Beattie
factors weighed in favor of Frazier, the district court nonetheless awarded
Drake all of his requested attorney fees. The court also awarded Drake
his general costs but reduced the award for expert witness fees as costs to
$47,400, as it found some of the fees to be unreasonable and excessive. In
total, the court awarded Drake $144,808.59 in attorney fees, general costs,
and expert witness fees. Following the entry of judgment on the jury
verdict, this appeal followed. 3
ANALYSIS
Our examination of the issues presented in this appeal begins
with Frazier's challenges to the judgment on the jury verdict and the
denial of her new trial motion, which focus on the district court's decision
to give the three sudden emergency jury instructions, and her argument
that the jury disregarded the standard of care instructions. We then turn
to Frazier's challenge to the award of attorney fees to Drake, based on
Frazier's and Keys' rejections of the offers of judgment. Lastly, we
conclude by addressing the award of expert witness fees to Drake.
District court decisions regarding whether to give a particular
jury instruction, grant a new trial motion, and award attorney fees and
3 The orders denying Frazier's new trial motion and awarding Drake
attorney fees and costs were entered before the judgment on the jury
verdict and are thus before us as interlocutory orders challenged in the
context of Frazier's appeal from the district court judgment. See Consol.
Generator—Nev., Inc. v. Cummins Engine Co., 114 Nev. 1304, 1312,
971
P.2d 1251, 1256 (1998).
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costs are reviewed for an abuse of discretion. Wyeth v. Rowatt, 126 Nev.
446, 464,
244 P.3d 765, 778 (2010) (jury instructions); Ringle v. Bruton,
120 Nev. 82, 94,
86 P.3d 1032, 1040 (2004) (new trial motions); LaForge v.
State, Univ. & Cmty. Coll. Sys. of Nev., 116 Nev. 415, 423,
997 P.2d 130,
136 (2000) (attorney fees); Bobby Berosini, Ltd. v. PETA,
114 Nev. 1348,
1352,
971 P.2d 383, 385 (1998) (costs). While the abuse of discretion
standard is generally deferential, the reviewing court will not defer to a
district court decision that is based on legal error. AA Primo Builders,
LLC v. Washington, 126 Nev. 578, 589,
245 P.3d 1190, 1197 (2010).
Sudden emergency instructions
Frazier first challenges the district court's decision to give the
jury three sudden emergency instructions. In particular, she contends the
sudden emergency doctrine should not have been applied because Drake
created or contributed to the emergency by failing to apply his brakes
when the bees flew in his cab window. In response, Drake argues the
sudden emergency instructions were proper because the bees flying in his
window, and particularly one bee landing on his eye, created a sudden
emergency that prevented him from avoiding the collision.
In an ordinary negligence action, a plaintiff must
demonstrate, among other things, that the defendant breached a duty of
care owed to the plaintiff. DeBoer v. Senior Bridges of Sparks Family
Hosp., Inc., 128 Nev. „ 282 P.3d 727, 732 (2012). Under a general
negligence standard, a party who owed a duty of care must "exercise
reasonable care to avoid foreseeable harm" to the party to whom that duty
is owed. Butler ex rel. Biller v. Bayer, 123 Nev. 450, 464,
168 P.3d 1055,
1065 (2007). One defense to a negligence claim is the sudden emergency
doctrine, which allows a defendant to argue he was not negligent insofar
as he was confronted with a sudden emergency that did not arise due to
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his own negligence and he acted as a reasonably prudent person would
upon being confronted with that emergency. See generally Posas v.
Horton, 126 Nev. 112,
228 P.3d 457 (2010).
In Posas, the Nevada Supreme Court discussed the
circumstances under which the sudden emergency doctrine may be
applied. See id. In addressing this issue, the Posas court recognized that
"a sudden emergency occurs when an unexpected condition confronts a
party exercising reasonable care." Id. at 115,
228 P.3d at 459 (citing 57A
Am. Jur. 2d Negligence § 198 (2004)). Thus, when a party's negligence is
what caused the emergency, that party's exercise of reasonable care after
the emergency arose will not preclude his liability for the negligent
conduct that created the emergency. Id. (citing Restatement (Second) of
Torts § 296 (1965)).
For a sudden emergency instruction to be warranted,
sufficient evidence must be presented demonstrating that a party was
suddenly placed in a position of peril through no fault of his own and that
he responded to that emergency as a reasonably prudent person would.
Id. Additionally, the emergency must have directly affected the party
seeking the instruction, rather than another party involved in the
incident, even if the emergency resulted in indirect consequences for the
party seeking the instruction. See id. at 118, 228 P.3d at 461 (concluding
that a pedestrian walking into the street in front of a car was not a sudden
emergency for the driver of a second car who was following too closely and
hit the first car when it stopped short to avoid hitting the pedestrian).
Finally, when a sudden emergency instruction is sought in the context of a
motor vehicle accident case, evidence must be presented demonstrating
that the asserted emergency involved something more than the typical
hazards drivers should expect to encounter in the regular course of
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operating a vehicle, such as the sudden appearance of obstacles or people,
crowded intersections, or sudden stops. Id. at 117,
228 P.3d at 460.
In challenging both the judgment on the jury verdict and the
denial of her new trial motion, Frazier asserts the sudden emergency
doctrine did not apply in this case because Drake caused the emergency
situation by failing to apply the brakes while removing the bee from his
eye. Frazier's argument suggests the failure to brake and the resulting
collision constituted the sudden emergency. The emergency asserted by
Drake, and recognized by the district court in its jury instructions,
however, was not Drake's failure to apply the brakes, but instead, was the
entrance of the bees into the truck cabin and, particularly, the proximity
of one of those bees to Drake's eye.
To that end, during trial, Drake presented evidence indicating
that bees flew into the cabin of his truck shortly before the accident
occurred and that one of the bees landed on his eye. He further presented
expert testimony indicating that, when people are confronted with an
emergency, their brain focuses all of its attention on dealing with the
emergency until it is resolved, such that Drake's brain would respond to a
bee landing on his eye as an emergency and would "lock [I into dealing just
with that trauma." The expert concluded that, under these circumstances,
Drake was unable to focus on stopping or avoiding a collision with
Frazier's car until the bee was no longer in his eye.
Moreover, Frazier does not contend that Drake did anything to
cause the appearance of the bees in the cabin or that he otherwise acted
negligently prior to their entry into the cabin. And to the extent Frazier's
arguments can be read as suggesting that bees flying into a vehicle, with
one bee landing on the driver's eye, constitute the sort of typical driving
hazard that would preclude application of the sudden emergency doctrine,
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relevant authority supports the conclusion that these circumstances would
constitute more than an ordinary driving hazard. See id. at 115 n.5,
228
P.3d at 459 n.5 (noting that other courts have given sudden emergency
instructions based on, among other things, dust clouds, dense patches of
fog, an unexpected brake failure, and a stopped vehicle without hazard
lights activated at night).
Based on the foregoing, we conclude Drake presented
sufficient evidence to allow the jury to determine that, through no fault of
his own, Drake was directly placed in a position of peril beyond the
ordinary hazards of driving and responded to that situation as a
reasonably prudent person would. See id. at 115,
228 P.3d at 459. Under
these circumstances, we will not disturb the jury verdict based on the
district court's decision to instruct the jury regarding the law on sudden
emergencies. 4 Id.; Wyeth, 126 Nev. at 464,
244 P.3d at 778 (stating that a
party is entitled to have the jury instructed on its theory of the case so
long as that theory is supported by the evidence and that the district
court's decision to give a particular jury instruction will not be overturned
absent an abuse of discretion or judicial error). For the same reasons, we
determine the district court did not abuse its discretion in refusing to
grant a new trial on these grounds. See Ringle, 120 Nev. at 94,
86 P.3d at
1040 (reviewing a district court's resolution of a new trial motion for an
abuse of discretion).
4 Frazier also contends that giving three separate sudden emergency
instructions was improper because doing so had the effect of directing the
jury to find that a sudden emergency occurred. As Frazier provides no
authority to support this position, however, we decline to consider it. See
Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38,
130 P.3d
1280, 1288 n.38 (2006) (stating that the court need not address issues not
cogently argued or supported by relevant authority).
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Disregard of jury instructions
Frazier next argues the district court abused its discretion by
not granting a new trial based on the jury's alleged disregard of the court's
instructions regarding the applicable standard of care. The Nevada
Supreme Court has held that, when a party seeking a new trial argues
that the jury manifestly disregarded its instructions under NRCP
59(a)(5), 5 the district court is obligated to grant the new trial motion "if
the jury could not have reached the verdict that it reached if it had
properly applied the district court's instructions." Paul v. Imperial Palace,
Inc., 111 Nev. 1544, 1550,
908 P.2d 226, 230 (1995); see also Carlson v.
Locatelli, 109 Nev. 257, 261,
849 P.2d 313, 315 (1993) (concluding that
"[t] his basis for granting a new trial may only be used if the jury, as a
matter of law, could not have reached the conclusion that it reached"
(quoting Brascia v. Johnson, 105 Nev. 592, 594,
781 P.2d 765, 767 (1989))).
Regarding Drake's duty of care, the jury was instructed that a
driver has a duty to decrease his speed as necessary to avoid colliding with
another vehicle and that, if the jury found Drake violated this duty, it
"should then consider the issue of whether that was negligence and was a
proximate and legal cause of injury or damage to the plaintiff." The
sudden emergency instructions, however, allowed the jury to find Drake
was not negligent if it concluded that he was confronted with a sudden
emergency not caused by his own negligence and that he acted as any
reasonably prudent person would when faced with a similar emergency.
5 NRCP 59(a)(5) provides that the district court may grant a new
trial if there was a "[m]anifest disregard by the jury of the instructions of
the court" that materially affected a party's substantial rights.
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Taking the sudden emergency instructions into account,
Frazier contends a reasonably prudent person would have applied the
brakes under the circumstances faced by Drake. In this regard, Frazier
points to testimony by three witnesses asserting that they experienced
having bees in their cars and that they either rolled down the window,
allowing the bees to escape, or applied their brakes and pulled the car over
until the bees flew out of the car. But as Drake points out, none of these
witnesses testified that a bee had landed on their face or on their eye.
Moreover, Drake presented expert testimony indicating that, when the bee
landed on his eye, his brain would have focused all of its attention on
dealing with the bee, such that he could not focus on stopping or avoiding
a collision with Frazier's car until the bee was no longer in his eye.
Based on this evidence, the jury could have found that, when
faced with the sudden emergency of a bee in his eye, Drake acted as a
reasonably prudent person would act under the same circumstances. See
Posas, 126 Nev. at 115,
228 P.3d at 459. Thus, it cannot be said that the
jurors did not follow the district court's instructions when they found for
Drake. See id.; see also Krause Inc. v. Little, 117 Nev. 929, 937,
34 P.3d
566, 571 (2001) (holding that jurors are presumed to follow the district
court's instructions). Accordingly, because Frazier cannot demonstrate
that, as a matter of law, the jury could not have reached a verdict in
Drake's favor without manifestly disregarding its instructions, the district
court properly denied Frazier's request for a new trial on this basis. See
Paul, 111 Nev. at 1550,
908 P.2d at 230; Carlson,
109 Nev. at 261,
849
P.2d at 315. Having determined that the jury instructions and the denial
of the motion for a new trial were proper, we now turn our attention to
Frazier's arguments regarding the district court's awards of attorney fees
and expert witness fees as costs to Drake.
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Attorney fees
Under NRCP 68 and MRS 17.115, 6 either party may make an
offer of judgment and serve it on another party to the case at least ten
days before trial. If the party to whom the offer is made rejects it and then
fails to obtain a more favorable judgment at trial, the district court may
order that party to pay the offeror "reasonable attorney fees." NRCP
68(0(2); MRS 17.115(4)(d)(3). Although the decision to award such fees
lies within the district court's discretion, the Nevada Supreme Court has
emphasized that, while Nevada's offer of judgment provisions are designed
to encourage settlement, they should not be used as a mechanism to
unfairly force plaintiffs to forego legitimate claims. Beattie v. Thomas, 99
Nev. 579, 588-89,
668 P.2d 268, 274 (1983).
To that end, in Beattie, the Nevada Supreme Court held that,
when determining whether to award attorney fees based on a rejected
offer of judgment, the district court is to evaluate
(1) whether the plaintiffs claim was brought in
good faith; (2) whether the defendants' offer of
judgment was reasonable and in good faith in both
its timing and amount; (3) whether the plaintiffs
decision to reject the offer and proceed to trial was
grossly unreasonable or in bad faith; and (4)
whether the fees sought by the offeror are
reasonable and justified in amount.
Id. Notably, the first three factors all relate to the parties' motives in
making or rejecting the offer and continuing the litigation, whereas the
fourth factor relates to the amount of fees requested. See id. None of
6 NRS 17.115 has been repealed by the 78th Nevada Legislature
effective October 1, 2015. A.B. 69, 78th Leg. (Nev. 2015). Because the
statute was in effect at the time the award of attorney fees and costs was
made, however, we nonetheless consider the parties' NRS 17.115-based
arguments to the extent that they are properly before us.
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these factors are outcome determinative, however, and thus, each should
be given appropriate consideration. Yamaha Motor Co., U.S.A. v. Amoult,
114 Nev. 233, 252 n.16,
955 P.2d 661, 673 n.16 (1998).
When a district court properly evaluates the Beattie factors,
its decision to grant or deny attorney fees will not be disturbed absent a
clear abuse of discretion. LaForge v. State, Univ. & Cmty. Coll. Sys. of
Nev., 116 Nev. 415, 423,
997 P.2d 130, 136 (2000). Such an abuse occurs
when the court's evaluation of the Beattie factors is arbitrary or capricious.
Yamaha Motor Co., 114 Nev. at 251,
955 P.2d at 672.
In challenging the award of attorney fees to Drake, Frazier
does not challenge the district court's findings with regard to the
individual Beattie factors. Her lack of argument in this regard is not
surprising, as the district court found that the first three factors weighed
in her favor, while only concluding that the factor regarding the
reasonableness of the amount of fees weighed in favor of Drake. Under
these circumstances, Frazier essentially argues that, when the district
court's individual findings regarding these factors are combined, they do
not support the decision to award the requested fees. Drake, on the other
hand, argues the district court properly considered each of the Beattie
factors and maintains that the fact that the district court determined that
certain of those factors weighed in Frazier's "favor is irrelevant and does
not establish [an] abuse of discretion." 7
Because offers of judgment are designed to encourage
settlement and are not intended to unfairly force plaintiffs to forego
legitimate claims, three of the four Beattie factors require an assessment
7 Like Frazier, Drake does not argue that the district court's
determinations regarding any of the individual Beattie factors were
incorrect.
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of whether the parties' actions were undertaken in good faith.
Specifically, the district court must determine whether the plaintiffs
claims were brought in good faith, 8 whether the defendant's offer was
reasonable and in good faith in both timing and amount, and whether the
plaintiffs decision to reject the offer and proceed to trial was grossly
unreasonable or in bad faith. Id. The connection between the emphases
that these three factors place on the parties' good-faith participation in
this process and the underlying purposes of NRCP 68 and NRS 17.115 is
clear. As the Nevada Supreme Court recognized, "fill* the good faith of
either party in litigating liability and/or damage issues is not taken into
account, offers would have the effect of unfairly forcing litigants to forego
legitimate claims." Yamaha Motor Co., 114 Nev. at 252,
955 P.2d at 673.
In contrast, the fourth Beattie factor—the reasonableness of the amount of
fees requested—does not have any direct connection with the questions of
whether a good-faith attempt at settlement has been made or whether the
offer is an attempt to force a plaintiff to forego legitimate claims.
As Frazier points out, the district court found that Frazier's
and Keys' claims were brought in good faith, that Drake's offers of
judgment were not reasonable or made in good faith in either timing or
amount, and that Frazier's and Keys' decisions to reject Drake's offers
were not grossly unreasonable or in bad faith. Despite finding that each of
the three good-faith-participation factors favored Frazier and Keys, and
that only the reasonableness of the amount of attorney fees requested
sAfter the Beattie factors were adopted, the Nevada Supreme Court
held that, where the defendant is the offeree, the factor regarding whether
the plaintiffs claims were brought in good faith drops out and is replaced
by an examination of whether the defendant's defenses were litigated in
good faith. Yamaha Motor Co., 114 Nev. at 252,
955 P.2d at 673.
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favored Drake, the district court nonetheless awarded Drake the entirety
of his requested attorney fees. In reaching this conclusion, the district
court penalized Frazier and Keys for rejecting offers of judgment the court
deemed unreasonable and not made in good faith and opting to pursue
claims the court found to have been brought in good faith, while
simultaneously determining that Frazier's and Keys' decisions to reject
Drake's offers were neither unreasonable nor made in bad faith.
The district court's award of attorney fees to Drake under
these circumstances effectively deemed the respective good faith of the
parties to be of no import. Such an approach elevates the reasonableness
of the attorney fees sought to a position of higher importance than the
other Beattie factors in direct contravention of well-established Nevada
authority. See Yamaha Motor Co., 114 Nev. at 252 n.16,
955 P.2d at 673
n.16 (cautioning the district courts that no one Beattie factor is outcome
determinative). Further, this approach transforms offers of judgment into
a vehicle to pressure offerees into foregoing legitimate claims in exchange
for unreasonably low offers of judgment, which is the exact result that the
Nevada Supreme Court sought to avoid by requiring that the parties' good
faith be considered when awarding attorney fees under Nevada's offer of
judgment provisions. Id. at 252,
955 P.2d at 673 (emphasizing that the
parties' good faith must be taken into account, lest offers "have the effect
of unfairly forcing litigants to forego legitimate claims").
We conclude that where, as here, the district court determines
that the three good-faith Beattie factors weigh in favor of the party that
rejected the offer of judgment, the reasonableness of the fees requested by
the offeror becomes irrelevant, and cannot, by itself, support a decision to
award attorney fees to the offeror. Thus, because the district court found
that the fees' reasonableness alone supported an award of attorney fees,
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we conclude that the district court's weighing of the Beattie factors was
arbitrary and capricious, id. at 251,
955 P.2d at 672, and constituted legal
error, rendering its decision to award attorney fees to Drake a clear abuse
of discretion. See LaForge, 116 Nev. at 423, 997 P.2d at 136; see also AA
Primo Builders, LLC v. Washington, 126 Nev. 578, 589,
245 P.3d 1190,
1197 (2010) ("While review for abuse of discretion is ordinarily deferential,
deference is not owed to legal error."). Accordingly, we reverse the district
court's award of attorney fees.
Expert witness fees
Turning to the district court's award of expert witness fees as
costs to Drake pursuant to NRS 18.020(3) and NRS 18.005(5), the parties
do not dispute that Drake is a prevailing party entitled to recover costs
under NRS 18.020(3). Instead, the parties' arguments focus on whether
the amount of expert witness fees awarded was excessive. 9 In this regard,
NRS 18.005(5) provides for the recovery of "H easonable fees of not more
than five expert witnesses in an amount of not more than $1,500 for each
witness, unless the court allows a larger fee after determining that the
circumstances surrounding the expert's testimony were of such necessity
as to require the larger fee." A district court's decision to award more than
$1,500 in expert witness fees is reviewed for an abuse of discretion. See
Gilman v. State Bd. of Veterinary Med. Exam'rs, 120 Nev. 263, 272-73,
89
P.3d 1000, 1006-07 (2004), disapproved of on other grounds by Nassiri v.
9While Frazier also addresses the district court's award of
$50,741.09 in general costs to Drake, her arguments provide no
explanation as to why she believes this award was unreasonable. We
therefore decline to consider these arguments and necessarily affirm this
award. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38,
130 P.3d 1280, 1288 n.38 (2006) (holding that an appellate court need not
consider issues that are not cogently argued).
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Chiropractic Physicians' Bd., 130 Nev. „ 327 P.3d 487, 490-91
(2014).
Drake sought fees for five expert witnesses in amounts of
$32,657.52, $10,804.00, $20,325.00, $36,449.21, and $7,400.00
respectively. Although the district court awarded fees for each expert, it
reduced the award to $10,000 per expert for the first four experts while
awarding the full $7,400 for the fifth expert. In making this
determination, the court found that, while Drake had hired the top experts
in the country, the amounts sought were nonetheless excessive and
unreasonable. The district court did not, however, explain why the fees
requested for the first four experts were excessive or unreasonable or how
it arrived at the flat $10,000 awards for each expert. The court similarly
did not explain why it found the $7,400 fee to be reasonable. Further,
despite concluding that $1,500 was not a reasonable sum to cover the cost
of retaining an expert, the court did not address NRS 18.005(5)'s
requirement that fees over $1,500 per expert should only be awarded if the
court determines that the circumstances surrounding the expert's
testimony were of such necessity as to require the larger fees.
On appeal, Frazier argues the award of expert witness fees
was excessive because the awards for each expert greatly exceeded $1,500.
Drake disagrees, 1 ° arguing the district court properly assessed the
ImFrazier and Drake both reference the factors set forth in Beattie v.
Thomas, 99 Nev. 579, 588-89,
668 P.2d 268, 274 (1983), to support their
respective arguments as to the propriety of the expert witness fees award.
The Beattie factors, however, "merely guide[ I the district court's discretion
to award attorney fees" following a rejected offer of judgment, see Albios v.
Horizon Cmtys., Inc., 122 Nev. 409, 420 n.17,
132 P.3d 1022, 1030 n.17
(2006), and are thus not relevant to an award of expert witness fees under
NRS 18.005(5).
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reasonableness of the requested fees before making its award. 11 In this
regard, Drake points to the court's determination that he hired the top
experts in the country and that $1,500 is "not a reasonable amount to hire
a competent expert."
For an award of expert witness fees in excess of $1,500 per
expert to be proper, the fees awarded must not only be reasonable, but
"the circumstances surrounding [each] expert's testimony [must be] of
such necessity as to require the larger fee." NRS 18.005(5); see also Logan
v. Abe, 131 Nev. „ 350 P.3d 1139, 1144 (2015) (stating that "NRS
18.005(5) allows the district court to award more than $1,500 for an
expert's witness fees if the larger fee was necessary"). In line with these
requirements, in Gilman, the Nevada Supreme Court affirmed an award
of $7,145 in expert witness fees on the basis that the expert's testimony
constituted most of the party's evidence in the underlying case. 120 Nev.
"In awarding expert witness fees, the district court referenced the
reasonableness requirements in both NRS 18.005(5) and NRS
17.115(4)(d)(1) (providing for an award of "[a] reasonable sum to cover any
costs incurred" for certain expert witnesses to a party whose offer of
judgment was rejected). But in responding to Frazier's assertion that the
expert witness fees award was not reasonable, Drake's answering brief
addresses only NRS 18.005(5), even though Drake made extensive
arguments regarding why such fees should be awarded under both NRS
17.115(4)(d)(1) and NRCP 68 in the district court. Drake's answering brief
does, however, discuss the offer of judgment provisions in NRS 17.115 and
NRCP 68 in arguing that the awards of attorney fees and general costs
should be affirmed. At oral argument, Drake sought to resurrect his NRS
17.115- and NRCP 68-based arguments in support of the expert witness
fees award, contending that, under these provisions, the district court
could have awarded dollar-for-dollar costs for any amounts incurred after
the offers were made. But given his failure to incorporate these
arguments into his answering brief despite making extensive arguments
based on these provisions in the district court, we decline to consider
Drake's NRS 17.115- and NRCP 68-based arguments in resolving Frazier's
challenge to the expert witness fees award.
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at 272-73, 89 P.3d at 1006-07. Aside from Gilman, however, the Nevada
Supreme Court has not provided further guidance as to when an award of
expert witness fees of more than $1,500 per expert under NRS 18.005(5) is
warranted. 1 As a result, we look to other jurisdictions for additional
-2
guidance regarding what should be considered in determining whether
expert witness fees requested in excess of $1,500 per expert are reasonable
and whether the circumstances surrounding the expert's testimony are of
such necessity as to require a larger fee.
1 The Nevada Supreme Court recently addressed the award of
-2
expert witness fees in excess of $1,500 per expert as costs in Logan v. Abe,
131 Nev. , 350 P.3d 1139 (2015). In that case, the expert witness had
been retained to rebut the testimony of the opposing party's expert
witness, but the opposing party decided on the eve of trial not to call their
expert. Id. at , 350 P.3d at 1144. Under those circumstances, the
Nevada Supreme Court concluded the district court did not abuse its
discretion by awarding expert witness fees greater than $1,500 as costs.
Id. In setting up the discussion, the Logan court contrasted the case
before it with a situation in which a party seeks to recover less than
$1,500, which the Logan court noted "does not require an expert witness to
testify." Id. In light of this contrasting language, and the Logan court's
emphasis on the particular circumstances of that case leading to the
expert not testifying, Logan suggests that, ordinarily, an expert must
testify in order for a party to recover more than $1,500 in costs for that
expert's fees under NRS 18.005(5). This conclusion is consistent with an
earlier Nevada Supreme Court case, Mays v. Todaro, 97 Nev. 195, 199,
626 P.2d 260, 263 (1981), in which the court noted that expert witness fees
could be awarded "if the witness had been sworn and testified." Id. The
Mays court, however, did not limit this language only to situations in
which the fees sought exceeded $1,500. See id. Conversely, in Bergmann
v. Boyce, 109 Nev. 670, 679-80,
856 P.2d 560, 566 (1993), the court
affirmed an award of expert fees below the statutory cap, holding that an
expert need not be called as a witness as a predicate for awarding fees
without overtly limiting the court's conclusion to fees that do not exceed
the statutory cap or discussing Mays. Id. Because Frazier does not assert
that any of the fees at issue here should be excluded due to the expert not
being called to testify at trial, however, we need not resolve the apparent
inconsistency between these decisions.
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Extrajurisdictional authority
Our survey of extrajurisdictional authority addressing the
recovery of expert witness fees reveals that only Idaho has a statute or
court rule similar to NRS 18.005(5).Th Specifically, Idaho Rule of Civil
Procedure 54(d)(1)(C)(8) provides for the recovery of "Heasonable expert
witness fees for an expert who testifies at a deposition or at a trial of an
action not to exceed the sum of $2,000 for each expert witness for all
appearances." This cap may be exceeded, however, if it can be
demonstrated "that [the] costs were necessary and exceptional costs
reasonably incurred, and should in the interest of justice be assessed
against the adverse party." Idaho R. Civ. P. 54(d)(1)(D). Applying this
rule to an award of approximately $24,000 in expert witness fees arising
from an eminent domain action, the Idaho Supreme Court upheld the
award, concluding the expert aided the court in understanding the
incomprehensible issues presented, the testimony was helpful due to the
exceptional nature of the case, and the expert's testimony was necessary
13 Indeed, many jurisdictions do not allow the recovery of any expert
witness fees as costs, see, e.g., Wood v. Tyler, 877 S.W.2d 582, 583 (Ark.
1994); TruServ Corp. v. Ernst & Young LLP, 876 N.E.2d 77, 85 (Ill. App.
Ct. 2007), while other jurisdictions limit the recoverable fees to the
nominal amount generally provided for witnesses, see, e.g., Calhoun v.
Hammond, 345 N.E.2d 859, 862 (Ind. Ct. App. 1976); Grant v. Chappell,
916 P.2d 723, 725 (Kan. Ct. App. 1996), or limit the award to encompass
only fees covering time the expert actually spent testifying or in
attendance at trial, thereby precluding any award for preparation time.
See, e.g., Arbitrium (Cayman Islands) Handels AG v. Johnston, 705 A.2d
225, 238 (Del. Ch. 1997) (but also recognizing that extraordinary
circumstances may allow for an additional award of costs, without
explaining what those circumstances might be); Springs v. City of
Charlotte, 704 S.E.2d 319, 327 (N.C. Ct. App. 2011); Chaffin v. Ellis,
211
S.W.3d 264, 293 (Tenn Ct. App. 2006).
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due to the complexity of the issues presented. See State, Dep't of Transp.
v. HJ Grathol, 343 P.3d 480, 494-95 (Idaho 2015).
Despite not having statutes or court rules directly analogous
to NRS 18.005(5), other jurisdictions nonetheless permit such fees in
certain circumstances. To the extent that such fees are permitted, those
jurisdictions generally require trial courts to consider factors related to the
reasonableness and necessity of an expert's testimony in determining
whether to make an award of expert witness fees. For example, Louisiana
appellate courts have adopted two separate sets of somewhat related
factors for use in determining whether expert witness fees should be
awarded as part of a general costs award, 14 with both courts noting that
such awards turn on the particular facts and circumstances of each case.
See Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll. v. 1732
Canal St., LLC, 133 So. 3d 109, 118 n.6, 119-20 (La. Ct. App. 2014)
(addressing an award of costs under Louisiana Code of Civil Procedure art.
1920, which provides that "the court may render judgment for costs ... as
it may consider equitable"); Randolph v. Gen. Motors Corp., 646 So. 2d
1019, 1029 (La. Ct. App. 1994) (reviewing an award of expert witness fees
as costs but failing to specify under what rule the award was made).
In Board of Supervisors, the Louisiana Court of Appeals held
that, in deciding whether to award expert witness fees as costs, courts
should consider the amount of time the expert spent in court, preparing a
report, and preparing for trial; the amount charged to the hiring party; the
14 Because Louisiana has multiple intermediate appellate courts,
within the state, appellate court holdings are precedential only in the
district in which the court sits. See Bernard v. Ellis, 111 So. 3d 995, 1000
(La. 2012) (addressing an issue because of a split among the appellate
courts).
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expert's expertise and the difficulty of the expert's work; the amount of the
award; and "[Che degree to which the expert[s] . opinion aided the court
in its decision." 133 So. 3d at 120. The court further provided that this
list of factors was nonexhaustive and that each case would require a casespecific examination of appropriate factors. Id. Applying some of these
factors to the approximately $250,000 award before it on appeal, the
Board of Supervisors court affirmed the award in light of the complexity of
the case, the length and scope of the testimony given, the nature and
helpfulness of the testimony, and the deductions already made from the
requested fees by the district court. See generally id. at 120-28.
In Randolph, another Louisiana Court of Appeals considered a
slightly different set of factors covering essentially the same general
considerations identified in Board of Supervisors. 646 So. 2d at 1029. The
Randolph court indicated that trial courts should consider the time spent
testifying, preparing for trial, and waiting to testify; the extent and nature
of the work performed; the knowledge, attainments, and skill of the
expert; the helpfulness of the expert's testimony; the amount in
controversy; the complexity of the issues addressed by the expert; and
awards to other experts in similar cases. Id. The court then went on to
affirm an award of approximately $3,000 in expert witness fees for three
experts, albeit by simply concluding that, "[c] onsidering these factors in
light of the discretion accorded the trial court," it could not be said that the
trial court abused its discretion in making the award. Id. at 1029-30.
Connecticut courts have considered a similar set of factors
when evaluating the reasonableness of expert witness fees sought for time
the expert spent responding to discovery from an opposing party under a
former court rule that required parties seeking discovery to "pay the
expert a reasonable fee" for this time. See Rose v. Jolly, 854 A.2d 824, 825
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(Conn. Super. Ct. 2004) (providing that courts should evaluate the expert's
area of expertise, education, and training; the prevailing rates earned by
"comparably respected available experts"; "the nature, quality, and
complexity" of the discovery responses provided; the fee incurred to retain
the expert; the "fees traditionally charged by the expert on related
matters"; and any additional factors that would assist the court "in
balancing the interest implicated" by the rule in determining the amount
of expert witness fees to award (quoting former Connecticut Superior
Court Rule § 13-4(3))). These same factors are also utilized by Maryland
courts and several federal district courts in evaluating requests for expert
witness fees under similar rules providing for the recovery of expert fees
incurred in responding to the opposing party's discovery. See, e.g.,
Kilsheimer v. Dewberry & Davis, 665 A.2d 723, 736 (Md. Ct. Spec. App.
1995); Fisher-Price, Inc. v. Safety 1st, Inc., 217 F.R.D. 329, 333 (D. Del.
2003); Goldwater v. Postmaster Gen., 136 F.R.D. 337, 339-40 (D. Conn.
1991),
The Massachusetts Supreme Judicial Court has likewise
adopted similar factors for consideration in awarding reasonable expert
witness fees pursuant to a consumer protections statute providing for an
award of 'costs incurred in connection with said action." Linthicum v.
Archambault, 398 N.E.2d 482, 488 (Mass. 1979) (quoting Mass. Gen. Laws
ch. 93A, § 9(4)) (giving trial courts discretion to award reasonable costs
under a statute providing that "the petitioner shall. .. be awarded
reasonable. . . costs incurred"), abrogated on other grounds by Knapp
Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 640 N.E.2d 1101, 1105 n.7 (Mass.
1994). Specifically, the Linthicum court held that, in evaluating a request
for expert witness fees, courts should consider "factors such as the time
spent by the expert in testimony, the number of appearances, preparation
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time, the degree of learning and skill possessed by that witness, as well as
the assistance such testimony gave to the trier of fact." Id. Finally, the
South Dakota Supreme Court has held that an examination of the
reasonableness of an expert witness fees award turns on whether the fees
are in excess of the customary rate for the services of a similar expert
where the trial was held. See State v. Guthrie, 631 N.W.2d 190, 195-96
(S.D. 2001) (making this determination in reviewing an order requiring
payment of an expert witness fee as a discovery sanction under a statute
authorizing the imposition of any discovery sanctions that a court deems
warranted).
As our examination of these cases illustrates, in those
jurisdictions that do not bar or strictly limit the recovery of expert witness
fees, the factors utilized to determine the amount of fees that should be
awarded are largely similar With these extrajurisdictional authorities in
mind, we now determine what factors Nevada courts should consider in
assessing the reasonableness of expert witness fees requested as costs in
excess of $1,500 per expert and whether "the circumstances surrounding
the expert's testimony were of such necessity as to require the larger fee"
under NRS 18.005(5).
Factors for consideration in awarding expert witness fees as costs in excess
of 81,500 per expert under NRS 18.005(5)
While the Nevada Supreme Court has provided only limited
guidance regarding what district courts must consider in awarding expert
fees in excess of $1,500 per expert, the court has made clear that the
importance of the expert's testimony to the party's case plays a key role in
assessing the propriety of such an award. See Gilman v. State Bd. of
Veterinary Med. Exam'rs, 120 Nev. 263, 273,
89 P.3d 1000, 1006-07 (2004),
(affirming an award of $7,145 in fees made under NRS 18.005(5) because
COURT OF APPEALS the expert's testimony constituted most of the party's evidence),
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disapproved of on other grounds by Nassiri v. Chiropractic Physicians' Bd.,
130 Nev. , 327 P.3d 487, 490-91 (2014). In addition, to be
recoverable, any requested costs must have been actually incurred. Cadle
Co. v. Woods & Erickson, LLP, 131 Nev. , , 345 P.3d 1049, 1054
(2015). Similar to these requirements, many of the extrajurisdictional
authorities discussed above also require that trial courts consider the
impact the expert's testimony had on the case and the amount of fees
actually incurred in determining the amounts that should be awarded.
E.g., Bd. of Supervisors, 133 So. 3d at 120; Randolph,
646 So. 2d at 1029;
Kilsheimer, 665 A.2d at 736; Lint hicum,
398 N.E.2d at 488.
In light of these pronouncements from our supreme court and
our review of extrajurisdictional authority, we conclude that any award of
expert witness fees in excess of $1,500 per expert under NRS 18.005(5)
must be supported by an express, careful, and preferably written
explanation of the court's analysis of factors pertinent to determining the
reasonableness of the requested fees and whether "the circumstances
surrounding the expert's testimony were of such necessity as to require
the larger fee." See NRS 18.005(5); el Young v. Johnny Ribeiro Bldg., Inc.,
106 Nev. 88, 93,
787 P.2d 777, 780 (1990) (requiring an "express, careful
and preferably written explanation" of the district court's analysis of
factors pertinent to determining whether a dismissal with prejudice is an
appropriate discovery sanction). In evaluating requests for such awards,
district courts should consider the importance of the expert's testimony to
the party's case; the degree to which the expert's opinion aided the trier of
fact in deciding the case; whether the expert's reports or testimony were
repetitive of other expert witnesses; the extent and nature of the work
performed by the expert; whether the expert had to conduct independent
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investigations or testing; the amount of time the expert spent in court, 15
preparing a report, and preparing for trial; the expert's area of expertise;
the expert's education and training; the fee actually charged to the party
who retained the expert; the fees traditionally charged by the expert on
related matters; comparable experts' fees charged in similar cases; and, if
an expert is retained from outside the area where the trial is held, the fees
and costs that would have been incurred to hire a comparable expert
where the trial was held. 16
We emphasize that not all of these factors may be pertinent to
every request for expert witness fees in excess of $1,500 per expert under
NRS 18.050(5), and thus, the resolution of such requests will necessarily
require a case-by-case examination of appropriate factors. See Bd. of
Supervisors, 133 So. 3d at 120. Moreover, the factors set forth in this
opinion are nonexhaustive and other factors may therefore be appropriate
for consideration depending on the circumstances of a case. See id.; see
also Rose, 854 A.2d at 825. Finally, before any award of expert witness
fees as costs may be made under NRS Chapter 18, the district court must
have evidence before it demonstrating "that the costs were reasonable,
necessary, and actually incurred" that goes beyond a mere memorandum
of costs. See Cadle Co., 131 Nev. at , 345 P.3d at 1054; see also Bobby
Berosini, Ltd. ix PETA, 114 Nev. 1348, 1352,
971 P.2d 383, 385-86 (1998)
(stating that costs awarded under NRS 18.005 must be reasonable, and
15 This may include, for example, consideration of whether it was
necessary for the expert to be in court to listen to other witnesses'
testimony for the purpose of offering rebuttal testimony.
16 The relevance of comparing the costs and fees incurred by hiring
an expert from outside the area in which the trial is held to those that
would be incurred to retain a comparable local expert will necessarily turn
on the availability of comparable experts where the trial is held.
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that "reasonable costs must be actual and reasonable," rather than an
estimate, even if the estimate itself is reasonable (internal quotation
marks omitted)).
The district court's award of expert witness fees as costs
In making the award of expert witness fees at issue here, the
district court failed to explain why it found the fees for four of Drake's
experts to be unreasonable or how it determined that $10,000 constituted
a reasonable fee for each of these experts. Indeed, Drake conceded at oral
argument that the amounts awarded for the experts appeared to simply be
"guesstimates." The district court similarly provided no explanation for
why it deemed the $7,400 fee requested for the fifth expert reasonable.
And while the court did note that Drake had hired the top experts in the
country and that $1,500 was not a reasonable sum to cover the cost of an
expert, it did not address NRS 18.005(5)'s requirement that fees over
$1,500 per expert should be awarded only if the court determines that the
circumstances surrounding the experts' testimony were of such necessity
as to require the larger fees.
Given the district court's failure to adequately set forth the
basis for its decision or address why the circumstances surrounding the
expert's testimony necessitated the larger fee, we conclude the district
court abused its discretion in awarding Drake his expert witness fees.
Thus, we reverse that award and remand this matter to the district court
for reconsideration of Drake's request for expert witness fees as costs
under NRS 18.005(5) in light of the principles set forth in this opinion.
CONCLUSION
Based on the foregoing analysis, we affirm the judgment on
the jury verdict and the denial of the new trial motion in the underlying
case. We further conclude the district court's decision to award attorney
COURT OF APPEALS fees based on Frazier's rejection of the offers of judgment was an abuse of
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discretion, and we therefore reverse that award. Finally, we reverse the
award of expert witness fees as costs and remand this issue to the district
court for further proceedings consistent with this opinion.
Gibbons
Tao
J.
Silver
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10) 194Th cFej249)
