Written by Joe Tommasino, Esq.
Supreme Court of Nevada
COVID-19 claims: (1) The federal Public Readiness and Emergency Preparedness Act (PREP Act) does not apply to a lack of action or treatment and therefore petitioners are not immune under it from claims based on a failure to enact COVID-19 policies; and (2) Nevada’s Emergency Directive 011 does not directly immunize petitioners from liability because the directive applies to individuals and not health-care facilities. Directive 011 is an emergency declaration issued by then-Governor Steve Sisolak granting immunity to providers of medical services, including skilled personnel, during the pandemic. Similarly, the PREP Act, passed by the United States Congress in 2005, authorizes the Secretary of the Department of Health and Human Services to issue a declaration during a public-health crisis that provides immunity from liability for “claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.” The PREP Act shields covered persons from liability for claims arising from “federal or state law that relate to the use of a covered countermeasure.” Specifically, “[c]overed persons are immune from ‘any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure.’” A covered person includes “a qualified person who prescribed, administered, or dispensed such countermeasure.” Relevant here, “a qualified person” is “a licensed health professional or other individual who is authorized to prescribe, administer, or dispense such countermeasures.” Covered countermeasures include such things as qualified pandemic or epidemic products; emergency-use drugs, biological products, or devices; and respiratory protective devices.Federal courts have found that a failure “to develop proper protocols to stop the transmission and spread of COVID-19” does not implicate the PREP Act because that failure is not a covered countermeasure. The United States Court of Appeals for the Fifth Circuit has also held, however, that the failure to use a covered countermeasure could relate to its administration if there was a “[p]rioritization or purposeful allocation of a [c]overed [c]ountermeasure.” Here, the underlying complaint alleged failure to implement an effective COVID-19 response which led to the victim’s death. None of the complaint’s allegations involve the use of a qualified product; security countermeasure; emergency-use drug, biological product, or device; or respiratory protective device. The complaint also does not allege that the prioritization of another policy over a policy involving a covered countermeasure led to the victim’s death. Instead, the complaint maintains that the inadequate COVID-19 policy led to conditions that caused the victim to become ill and die. Because a general lack of action is not a covered countermeasure under the PREP Act, and because the complaint alleged that the lack of an adequate COVID-19 policy, rather than a drug or device, led to the victim’s death, the PREP Act does not apply, and immunity is not implicated. Separately, Directive 011 does not include health-care facilities in the list of “provider[s] of medical services” immune from liability. The directive lists only individual medical professionals, although the order provides that the immunity conferred is not limited to the listed medical practitioners. The Supreme Court concluded that the executive order was not intended to confer direct immunity on health-care facilities themselves. However, the Court’s interpretation of Directive 011 does not negate traditional respondeat superior if a facility’s liability flows only from actors included in the directive. For instance, if injury stems from an immune individual, then the health-care facility would be immune pursuant to respondeat superior. When injury stems directly from the health care facility, then Directive 011 does not provide the facility with immunity. The Heights of Summerlin, LLC v. Dist. Ct. (Crupi), 140 Nev. Adv. Op. No. 65, ___ P.3d ___ (October 3, 2024).
Criminal procedure: (1) NRS 173.095(1) governs when a court may permit amendment to a charging instrument, and an amendment may not prejudice the defendant’s substantial rights or charge an additional or different offense; and (2) the operation of a federal statute does not entitle a defendant to a jury trial where Nevada statutes do not establish the offense as serious. The trial court has discretion in determining whether to permit an amendment, but the amendment may not prejudice the defendant’s substantial rights or charge an additional or different offense. The substantial right at issue is the defendant’s right to be clearly informed of the nature of the charges in order to adequately prepare a defense. A lesser-included offense is not a new or different offense under NRS 173.095. Misdemeanor battery is a lesser-included offense of misdemeanor battery constituting domestic violence. Accordingly, the municipal court acted within its discretion in allowing the City to amend the charging instrument. Separately, the right to a jury trial attaches to crimes that are considered “serious” and not “petty.” An offense with a maximum sentence of six months’ incarceration is presumptively petty but is deemed a serious offense if it carries an additional penalty of loss of the right to possess a firearm. Here, the defendant faced a possible sentence of six months’ incarceration if convicted of simple battery but did not face the loss of the right to possess a firearm. The Supreme Court of Nevada emphasized that misdemeanor battery constituting domestic violence implicates NRS 202.360 if that offense is specifically charged pursuant to NRS 200.485; the substance of a conviction is relevant only where the conviction was obtained in another jurisdiction. To the extent the district court considered consequences potentially imposed by a federal statute, it was mistaken, since collateral consequences imposed by federal law do not reflect a determination by the Nevada Legislature that the offense is serious. Henderson City Attorney v. Cerrone, 140 Nev. Adv. Op. No. 68, ___ P.3d ___ (October 24, 2024).
Eminent domain: (1) Nevada statutes delegate the government’s eminent-domain power to regulated public utilities for specified public uses, including “[p]ipelines for the transportation of . . . natural gas”; and (2) the Nevada Constitution prohibits taking private property for purposes of transferring the property to another private party for their use, but this section does not prohibit a regulated public utility that “has the power of eminent domain” from taking property for a natural-gas pipeline, a statutorily recognized public use. In Kelo v. City of New London, Connecticut, 545 U.S. 469, 484 (2005), the Supreme Court of the United States upheld a local government’s taking of private property so that it could transfer the property to another private party as part of an economic redevelopment plan. In Nevada, voters amended the Constitution of the State of Nevada to provide: “Public use shall not include the direct or indirect transfer of any interest in property taken in an eminent domain proceeding from one private party to another private party.” Nev. Const, art. 1, § 22(1). The amendment also added procedural protections for landowners, including the right to have a jury determine “whether the taking is actually for a public use” before occupancy is granted. Id. art. 1, § 22(2). This case arose from an eminent-domain action that real party in interest Sierra Pacific Power Company, d/b/a NV Energy, initiated against petitioner Mass Land Acquisition to take an easement across Mass Land’s property for a natural-gas pipeline. Mass Land moved to dismiss the action, arguing that it would violate article 1, section 22(1) of the Nevada Constitution for NV Energy, a for-profit, private company, to use its statutorily delegated eminent domain power to take and thereby transfer another private party’s property to itself. Alternatively, Mass Land asked for a jury to decide whether the taking was actually for a public use. The district court denied the motion to dismiss and granted NV Energy immediate occupancy. Mass Land petitioned for a writ of mandamus or prohibition against the district court’s rulings, and the Supreme Court of Nevada denied the petition. Nevada statutes delegate the government’s eminent-domain power to regulated public utilities for certain specified public uses, including “[p]ipelines for the transportation of . . . natural gas.” By its terms, article 1, section 22(1) prohibits taking private property for purposes of transferring the property to another private party for their use, protecting Nevadans from takings like the one that occurred in Kelo. This section does not prohibit a regulated public utility that “has the power of eminent domain” from taking property for a natural-gas pipeline, a statutorily recognized public use. While article 1, section 22(2) entitles the landowner to a pre-occupancy jury determination on “whether the taking is actually for a public use,” that right is subject to ordinary civil process. A civil case does not go to a jury unless there are issues of fact for the jury to decide, and the record here does not support that any factual issues exist as to whether the taking was actually for a public use. Mass Land Acquisition, LLC v. Dist. Ct. (Sierra Pac. Power Co.), 140 Nev. Adv. Op. No. 67, ___ P.3d ___ (October 17, 2024).
Professional negligence: (1) A vicariously liable professional entity cannot be held more liable than its principal and thus cannot owe more pain and suffering damages or attorney fees than its principal; and (2) attorneys may not waive or contract around the statutory limit for attorney fees in NRS 7.095. NRS 41A.035(1) caps the amount of damages for noneconomic personal injury losses a plaintiff may recover against “a provider of health care” to $350,000. At the time of Respondent Marily Martyn’s surgery in 2009, a “provider of health care” included individual medical practitioners, as well as a “medical laboratory director or technician, or a licensed hospital and its employees.” In 2015, the Legislature expanded the definition to include a “clinic, surgery center, physicians’ professional corporation or group practice that employs any such person [referring to identified individual medical practitioners] and its employees.” NRS 41A.035(1) applies to professional medical entities based on principles of vicarious liability. A vicariously liable party is held liable not because they committed a breach of duty to the plaintiff, but because of legal imputation of responsibility for another’s tortious acts. Under a joint-and-several-liability scheme, each defendant is liable for damages they caused, and a vicariously liable defendant is liable for the same amount as the principal. Because appellant professional entities’ liability cannot exceed the liability of the principal and Nevins’ liability is capped at $350,000 pursuant to NRS 41A.035(1), appellant professional entities also cannot be liable for more than $350,000. Separately, in professional-negligence actions against “providers of health care,” NRS 7.095 limits the amount an attorney may charge pursuant to a contingent-fee agreement. This statute applies to professional entities. The Supreme Court of Nevada concluded that NRS 7.095 serves a significant public policy, and its fee limitations may not be avoided by an attorney-client fee agreement. Finally, the Supreme Court concluded that a judge may apply NRCP 68(f), finding that one party owes the other attorney fees, costs, and expert fees and then turn to NRS 18.005 to determine whether expert-witness fees are capped and whether costs for more than five experts may be awarded. The case of Frazier v. Drake, 131 Nev. 632, 357 P.3d 365 (2015) discusses factors to consider when a district court may award expert fees in excess of the cap under NRS 18.005. The Supreme Court stated that “[w]hen analyzing the Frazier factors, we direct the district court to forgo a summary application of the factors, to consider only the factors that directly apply, and to explain its determinations.” Nevins, M.D. v. Martyn C/W 85247/85541/85596, 140 Nev. Adv. Op. No. 66, ___ P.3d ___ (October 17, 2024).
Resources
- “Advance Opinions” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
- A list of “Forthcoming Opinions” is available at this link every Wednesday: http://nvcourts.gov/Supreme/Decisions/Forthcoming_Opinions/
- “Supreme Court Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Unpublished_Orders/
- “Court of Appeals Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Court_of_Appeals/Unpublished_Orders/
About the author
Joe Tommasino has served as Staff Attorney for the Las Vegas Justice Court since 1996. Joe is the President of the Nevada Association for Court Career Advancement (NACCA).
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This article was originally submitted for publication in the Communiqué (Aug. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-aug-2024/
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