Spilsbury, D.D.S. v. Rynders ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
DARRELL K. SPILSBURY, D.D.S., No. 64368
Appellant,
vs.
CARRIE RYNDERS,
FILED
Respondent. JAN 2 2 2016
TRACE K UNDEMANI
ORDER OF AFFIRMANCE CLERK OF SUPREME COURT
BY
DEPUTY CLERK
This is an appeal from a district court judgment on a jury
verdict in a dental malpractice action and from post-judgment orders
retaxing costs and denying judgment as a matter of law or a new trial.
Eighth Judicial District Court, Clark County; Gloria Sturman, Judge.
Respondent Carrie Rynders brought a dental malpractice
action against appellant Darrell K. Spilsbury, D.D.S., an orthodontist
practicing in Las Vegas, for injuries she sustained during the course of
orthodontia treatment performed by Dr. Spilsbury. The jury found that
Dr. Spilsbury was 85 percent at fault for Rydners' injuries and awarded
her $474,880.11 in damages and costs. After the district court partially
granted Dr. Spilsbury's post-trial motion to retax costs, an amended
judgment was entered in the amount of $472,380.11.
On appeal, Dr. Spilsbury argues that he is entitled to
judgment as a matter of law, or alternatively, a new trial because Rynders'
expert witness, orthodontist Kamal Al-Fakiani, D.D.S., was not qualified
to establish the standard of care in this case and• that the district court's
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rejection of his proposed "mere happening" jury instruction was an abuse
of discretion.' We do not agree.
Dr. Al-Fakiani was qualified to be an expert witness
To establish malpractice, "a plaintiff must present expert
medical testimony." Staccato v. Valley Hosp., 123 Nev. 526, 530, 170 P.3d
503, 506 (2007). We "review[ ] a district court's decision to allow expert
testimony for abuse of discretion." Hallmark v. Eldridge, 124 Nev. 492,
498, 189 P.3d 646, 650 (2008).
Dental malpractice is defined as "failure on the part of a
dentist to exercise the degree of care, diligence and skill ordinarily
exercised by dentists in good standing in the community in which he or
she practices." NRS 631.075. To determine whether an expert is
qualified, we consider "whether (1) the subject matter is distinctly related
to some scientific field or profession beyond the average person's
knowledge; and (2) the witness has sufficient skill, knowledge, or
experience in the area at issue so that the opinion will aid the jury."
Staccato, 123 Nev. at 533, 170 P.3d at 507; see also NRS 50.275.
There is no doubt that the field of orthodontics is beyond the
average person's knowledge. It is also evident from the record that Dr. Al-
Fakiani has "sufficient skill, knowledge, or experience" in general
orthodontics to qualify as an expert. Staccato, 123 Nev. at 533, 170 P.3d
Spilsbury also appears to appeal from the district court's order
granting in part and denying in part his motion to retax costs. However,
Dr. Spilsbury fails to address this issue in his briefs, and we therefore do
not 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 issues not cogently
argued or supported by relevant authority need not be considered).
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at 507. Dr. Al-Fakiani graduated from dental school, passed the dental
boards, completed orthodontic training, and taught orthodontics for a
number of years. He is also part of a private orthodontic practice where he
sees an average of 400 patients a week.
Dr. Spilsbury argues that because Dr. Al-Fakiani did not
possess the skill, knowledge, and experience on the orthodontic procedure
at issue in this case, he should not have been allowed to testify that Dr.
Spilsbury breached the applicable standard of care. 2 This case involves
lingual braces using an iBrace system, meaning that the brackets and
wires were placed on the back of Rynders' teeth, and Dr. Al-Fakiani
specializes in the Invisalign system of orthodontics. Dr. Spilsbury argues
that this makes Dr. Al-Fakiani unqualified to render an opinion on lingual
braces. However, as the district court found and we agree, the treatment
at issue involved more than just the application of the iBraces.
Dr. Al-Fakiani opined on three major issues regarding Dr.
Spilsbury's treatment: (1) whether Rynders' gums were of sufficient health
to withstand the treatment, (2) whether extraction of some of Rynders'
teeth prior to treatment was required, and (3) whether sufficient oral
hygiene instructions were given by Dr. Spilsbury and his staff. Dr. Al-
Fakiani's opinions were not specific to lingual braces, but rather, went
toward whether Dr. Spilsbury exercised due care in his general
orthodontic practices. Accordingly, we conclude that Dr. Al-Fakiani
possessed the requisite "skill, knowledge, or experience in the area at
issue," Staccato, 123 Nev. at 533, 170 P.3d at 507, and the district court
2 Dr. Spilsbury objected at district court to Dr. Al-Fakiani being an
expert witness, but the court overruled the objection.
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did not abuse its discretion by allowing Dr. Al-Fakiani to provide expert
testimony. 3
The district court's denial of Dr. Spilsbury's request for a "mere happening"
jury instruction was not an abuse of discretion or judicial error
"[T]he district court has broad discretion to settle jury
instructions." Skender v. Brunsonbuilt Constr. & Dev. Co., LLC, 122 Nev.
1430, 1435, 148 P.3d 710, 714 (2006) (internal quotations omitted). "A
district court's decision to give or decline a proposed jury instruction is
reviewed for an abuse of discretion or judicial error." Atkinson v. MGM
Grand Hotel, Inc., 120 Nev. 639, 642, 98 P.3d 678, 680 (2004). "An abuse
of discretion occurs if the district court's decision is arbitrary or capricious
or if it exceeds the bounds of law or reason." Skender, 122 Nev. at 1435,
148 P.3d at 714 (internal quotations omitted).
Rynders' husband testified that he attended his wife's last
appointment with Dr. Spilsbury during which Dr. Spilsbury admitted that
he was at fault. Dr. Spilsbury testified that at one point he did offer to
complete Rynders' treatment at no cost and to reimburse Rynders for the
cost of her orthodontic treatment with him. As a result, Dr. Spilsbury
proposed a mere happening jury instruction under Gunlock v. New
Frontier Hotel Corp., 78 Nev. 182, 185, 370, P.2d 682, 684 (1962),
abrogated on other grounds by Foster v. Costco Wholesale Corp., 128 Nev.,
3 Dr.Spilsbury further argues that under NRS 41A.100(1), Dr. Al-
Fakiani was required to show "a foundation from his study of the
literature, communications with colleagues, or other study of the
procedure" in order to testify as an expert witness. We disagree.
Pursuant to NRS 41A.100(1), evidence can consist "of expert medical
testimony, material from recognized medical texts or treatises or the
regulations of the licensed medical facility wherein the alleged negligence
occurred." (Emphasis added.) Thus, this argument is without merit.
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Adv. Op. 71, 291 P.3d 150 (2012), to limit the impact of these statements.
The mere happening instruction states that "[t]he mere fact that there
was an accident or other event and someone was injured is not of itself
sufficient to predicate liability. Negligence is never presumed but must be
established by substantial evidence." 4 Id. The district court denied Dr.
Sp ilsbury's request.
Given the district court's "broad discretion to settle jury
instructions," we conclude that the denial of the mere happening
instruction was not arbitrary or capricious. 5 Skender, 122 Nev. at 1435,
148 P.3d at 714. Even if we were to conclude that the district court erred
by rejecting Dr. Spilsbury's proposed instruction, reversal is not
warranted as the error was not prejudicial. See Cook v. Sunrise Hosp. &
Med. Ctr., LLC, 124 Nev. 997, 1005, 194 P.3d 1214, 1219 (2008). To
establish prejudicial error, the complaining party must demonstrate "that
the error substantially affected the party's rights. That standard is met
when the complaining party provides sufficient-record evidence showing
that, but for the error, a different result might have been reached." Id. at
1007, 194 P.3d at 1220 (footnote omitted). Other than pointing to the fact
4Dr. Spilsbury's proposed instruction used the term "competent
evidence" rather than "substantial evidence," but was otherwise identical.
5 1n denying the mere happening instruction, the district court cited
to a lack of clarity and an evolution in our recent general negligence
caselaw, see Egan v. Chambers, 129 Nev., Adv. Op. 25, 299 P.3d 364
(2013); Foster, 128 Nev., Adv. Op. 71, 291 P.3d 150, which called into
question the validity of the instruction. Because we conclude that the
district court did not abuse its discretion by rejecting the proposed
instruction, we do not reach the question of whether the mere happening
instruction is still good law in Nevada.
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that the jury found him only 85 percent at fault, Dr. Spilsbury points to no
other "sufficient-record evidence" to show that but for the exclusion of the
mere happening instruction, the jury may have reached a different result.
Accordingly, we conclude that the district court did not err in
denying Dr. Spilsbury's motion for judgment as a matter of law or a new
trial, and we
ORDER the judgment of the district court AFFIRMED.
4JYL C
Parraguirre
tatzei J.
Hardesty
J.
Douglas
Cherr
aitta
J.
Gibbons
J.
Pickering
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cc: Hon. Gloria Sturman, District Judge
Lansford W. Levitt, Settlement Judge
Law Offices of Alfred F. Belcuore
Carroll, Kelly, Trotter, Franzen, McKenna & Peabody
Blut Law Group, APC
Eighth District Court Clerk
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