Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

In Fernandez v. Fernandez, the Nevada Supreme Court held that a stipulation between the parties that a child support order will not be modified cannot supersede statutory provisions allowing modification, up or down, upon a material change in circumstances.  

The Court stated “The formula and guideline statutes are not designed to produce the highest award possible but rather a child support order that is adequate to the child’s needs, fair to both parents, and set at levels that can be met without impoverishing the obligor parent or requiring that enforcement machinery be deployed.” Absent legislative approval of parents’ ability to waive the right to modify on the basis of changed circumstances, the parties cannot stipulate around those statutory provisions.

3-0 decision authored by Pickering, with Parraguirre and Douglas concurring.

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Successive dispositive motions weren’t exactly the issue in Dictor v. Creative Management Services, but the Court did cite the two week old 9^th Circuit decision in Hoffman v. Tonnemacher, [discussed here] with approval.  Therefore, it looks like the Court will follow the federal court lead on this issue.

In Dictor, the Nevada Supreme Court clarified the law of the case doctrine and choice of law decisions. 

In this case, involving an insurance subrogation claim, the Court had previously determined in an unpublished decision that because the neither the insured nor the claimant were Nevada residents, NRS 687A.095, which bars suit against an insured of an insolvent insurer, did not apply. 

On remand, the District court determined that a similar Missouri statute barred the suit, and granted summary judgment again.

Dictor appealed again, claiming that the Missouri law should not have applied, because the Supreme Court had decided that statutory defenses did not apply. It seems an amicus brief filed days before the oral argument in the first appeal had raised the Missouri statute. However, the Court had not considered or ruled on the applicability of that statute.  

The Court stated the rule of the case doctrine bars reconsideration only of issues actually decided by the appellate court, and does not apply if the issue  presented in a subsequent appeal differ from those previously presented.   Application of the Missouri statute had not been addressed in the previous appeal, and the Court’s remand order had not prevent consideration of other statutory defenses.

The Court also addressed choice of law considerations for subrogation, adopting the comment d to Restatement of Conflicts, § 145, which states “the local law of the state where the parties are domiciled, rather than the local law of the state of conduct and injury, may be applied to determine whether one party is immune from tort liability to the other.”  This is consistent with the Court’s previous adoption of the Restatement analysis for choice of law decisions in General Motors Corp. v. District Court, 122 Nev. 466, 134 P.3d 111 (2006), and emphasizes that whichever Restatement section is most specific to the facts should apply.

3-0 decision authored by Hardesty, with Parraguirre and Pickering concurring.

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The Court’s first published opinion of 2010, Higgs v. State,  was initially released in May 2009, as an unpublished order. The Court rejected Higgs’ various challenges to his conviction for the murder of his wife, Kathy Augustine, including the argument that a failure to grant a continuance to allow a defense expert a longer opportunity to review the prosecution’s

The opinion  was noteworthy for its extensive discussion of the different standards for admission of expert testimony presented by NRS 50.572  and the near identically worded FRE 702. Amicus curiae Nevada Justice Association moved for the publication of the ruling, which the Court granted.

Although in federal courts, the admission of expert testimony is governed by the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in Nevada, the test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) continues to be the appropriate standard. The Court noted that to the extent Daubert presents a flexible approach, it may be considered persuasive, but a mechanistic application of the factors cited in Daubert is not appropriate in Nevada courts.

Under Frye, expert opinion based on a scientific technique is inadmissible unless the technique has “gained general acceptance in the particular field in which it belongs.” Under Daubert, admissibility is based upon the testimony’s “relevance and reliability.”  The difficulty of Daubert, however, is the tendency to apply the factors listed therein in a mechanical way, even those such factors were expressly not intended to be a definitive checklist, and would not even logically apply to situations outside scientific fields. In Higgs, the Court clarifies that admissibility standards for expert testimony in Nevada courts are not limited to the factors set forth in Daubert.

Hardesty drafted the 4-2 opinion, issued January 14, 2010.  Pickering recused.  Cherry and Saitta each filed separate dissents, with Cherry’s more strongly worded. 

The dissents, however, were  not directed at the Frye/Daubert debate, but instead, were directed at the Court’s conclusion that Higgs’s rights had not been violated by the denial of the continuance.  Both Cherry and Saitta expressly concurred with the Court’s reaffirmance of Frye as the appropriate evidentiary standard.

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