Las Vegas Sun

January 18, 2018

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State Supreme Court set to hear Clark County cases

The Nevada Supreme Court is scheduled next week in Carson City to consider five Clark County cases that include disputes involving medical malpractice, eminent domain, smoking, hepatitis C and construction.

Monday’s docket includes:

Winn v. Sunrise Hospital and Medical Center — Appellant Robert Winn filed a medical malpractice lawsuit on behalf of his minor daughter, whose surgery resulted in permanent brain damage that left her a quadriplegic. In addition to the hospital, defendants named include Dr. Michael Ciccoli, Clinical Technician Associates, Robert Wells and Lee Steffen. Prior to trial, the District Court granted summary judgment to the defendants because the lawsuit was not filed within the one-year statutory time limit for medical malpractice actions.

The Supreme Court will decide whether the lower court erred in granting summary judgment because of questions as to whether the hospital concealed relevant medical records. The court will also decide whether the girl’s constitutional rights to equal protection and due process were violated because state law does not provide for the automatic expiration of a minor’s medical malpractice claim until the minor reaches age 18.

Moldon v. Clark County District Court Clerk — This eminent domain case involves a dispute over the calculation of interest owed to the property owner. The City of Las Vegas Downtown Redevelopment Agency initiated eminent domain against Paul and Laurel Moldon in 1995, deposited $725,000 as its estimated value for just compensation with the District Court clerk and took possession of the property.

The agency and the Moldons settled the case in 2005, with the Moldons seeking release of the funds plus accrued interest.

The court agreed to release the funds but refused to direct the court clerk to deliver the interest, citing a state law that authorized the clerk to transfer the interest to the county’s general account.

The Supreme Court initially held that the Moldons were entitled to the interest and remanded the case to District Court to determine the amount owed. But the Moldons charged that the court clerk spoiled evidence related to the case and the two sides continued to disagree over the way the interest should be calculated. The Supreme Court will now rule on whether the lower court erred in the way it calculated the interest to be paid to the Moldons.

Bent Barrel v. Sands — This case began when the Southern Nevada Health District inspected Bilbo’s Bar & Grill for compliance with the Nevada Clean Indoor Air Act. The health district observed numerous violations, including smoking by customers and ashtrays and matches provided by Bilbo’s. Lawrence Sands, chief health officer for the district, filed a civil complaint against Bent Barrel, the corporation doing business as Bilbo’s. Prior to trial, a preliminary injunction was granted. Health district inspectors subsequently found numerous other violations, including that Bilbo’s provided receptacles for patrons to use as ashtrays. At trial the District Court granted a permanent injunction against Bilbo’s.

The Supreme Court will decide whether the indoor air act unconstitutionally violates Bilbo’s right to commercial free speech and whether the term “smoking paraphernalia” is unconstitutionally vague. The court will also consider whether the District Court improperly required Bilbo’s to inform employees that smoking is prohibited in certain areas, and whether the health district’s enforcement was unfairly arbitrary and discriminatory. The court will also address whether the indoor air act’s use of a distinction in gaming licensees to determine whether an establishment can allow smoking violates the constitutional right to equal protection.

Cervantes v. Health Plan of Nevada Inc. — Margerita Cervantes received health care benefits through a self-funded plan run by the Hotel Employees and Restaurant Employees International Union Welfare Fund in Las Vegas.

Cervantes received treatment from the Endoscopy Center of Southern Nevada in January 2007 and alleged that she contracted hepatitis C as a result of her treatment. She alleged that the defendants breached their responsibility to her when they should have known that the Endoscopy Center engaged in unsafe medical practices. She also charged that the defendants failed to ensure the quality of care from the clinic, which was the epicenter of a hepatitis C outbreak revealed in 2008. But the defendants argued in part that they owed her no duty of care and won summary judgment from district court.

The Supreme Court will consider whether the lower court erred by denying Cervantes’ motion for discovery, concluding that her claims were preempted by the Employee Retirement Income Security Act, and determining that the defendants did not owe a duty to Cervantes.

The Supreme Court on Tuesday will also consider a dispute involving CityCenter construction and lien master litigation. This case involves the disqualification of two attorneys and a paralegal in a construction dispute who erroneously gained electronic access to privileged information.

The case involves a challenge of a District Court order that disqualified three employees of the law firm Morris Peterson from participating in a case against Perini Building Company involving CityCenter on the Strip. Morris Peterson serves as counsel to MGM Mirage Design Group, CityCenter Land LLC and other defendants against Perini. Morris Peterson also represents Queensridge Towers LLC in an unrelated lawsuit against Perini.

During the Queensridge litigation, attorneys for both sides negotiated a search protocol for electronically stored information. The intent was to segregate Queensridge information from CityCenter information. Morris Peterson hired computer forensic company Stroz Friedberg LLC to load information into a secure database to facilitate access and review during discovery by Queensridge and Morris Peterson. But Stroz failed to follow established protocol and allowed two attorneys and a paralegal from Morris

Peterson to access 142 documents identified by Stroz as potentially related to the CityCenter litigation.

The District Court conditionally denied Perini’s motion to disqualify Morris Peterson from representing CityCenter but ordered the three Morris Peterson employees to be precluded from involvement because Perini incurred prejudice by the disclosure of the privileged information.

The Supreme Court will consider CityCenter’s petition seeking to overturn the disqualification of the three employees.

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