138 Nev., Advance Opinion 4Z 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

DESIRE EVANS-WAIAU, 

INDIVIDUALLY; AND GUADALUPE 

PARRA-MENDEZ, INDIVIDUALLY, 

Appellants, 

vs. 

BABYLYN TATE, INDIVIDUALLY, 

Respondent. 

No. 79424 

r

a 13, 

thz 

JUN 16 2022 

ELIZASI7F'.-i-: A. rtROWN 

CLERK cLgAJPREME COURT 

ry • i&A.1".,/ 

DEPUP: CLERK 

Appeal from a district court defense judgment on a jury verdict 

in a tort action. Eighth Judicial District Court, Clark County; Mary Kay 

Holthus, Judge. 

Affirmed. 

Prince Law Group and Dennis M. Prince and Kevin T. Strong, Las Vegas, 

for Appellants. 

Lewis Roca Rothgerber Christie LLP and Daniel F. PoIsenberg, Joel D. 

Henriod, and Adrienne Brantley-Lomeli, Las Vegas; Winner Booze & 

Zarcone and Thomas E. Winner and Caitlin J. LoreIli, Las Vegas, 

for Respondent. 

BEFORE THE SUPREME COURT, EN BANC. 

OPINION 

By the Court, CADISH, J.: 

This appeal presents two separate questions—one procedural 

and one substantive. The procedural question is whether a party must 

move for a new trial in district court to preserve attorney-misconduct claims 

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on appeal. We recently held in Rives v. Farris, 138 Nev., Adv. Op, 17, 506 

P.3d 1064 (2022), that a party is not necessarily required to move for a new 

trial to preserve its trial error-based arguments or ability to seek a new trial 

as an appellate remedy. Respondents argue, however, that our decision in 

Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008), requires a party to move 

for a new trial to preserve a specific claim that attorney misconduct 

warrants a new trial. Respondents read too much into Lince and ignore the 

procedural posture of that case, for there we were concerned only with 

whether the complaining parties preserved their attorney misconduct 

arguments with contemporaneous objections. Although Dace arose from 

orders resolving motions for new trials, that distinct procedural posture 

does not encumber our review in the context of an appeal from a final 

judgment where appellants objected to at least some of the alleged 

misconduct. Thus, the rule announced in Rives applies. As no procedural 

shortcomings inhibit us from reaching the substantive merits of the appeal, 

notably the alleged attorney misconduct, we address appellants claims of 

error, and having reviewed the record, we are not persuaded that the 

challenged conduct or other alleged trial errors warrant reversal. 

Accordingly, we affirm the district court's judgment. 

FACTS AND PROCEDURAL HISTORY 

In October 2015, appellant Desire Evans-Waiau was driving 

westbound on Flamingo Boulevard. She was accompanied by appellant 

Guadalupe Parra-Mendez, as well as several children who are not parties 

to this appeal. According to Evans-Waiau, she abruptly stopped to avoid a 

pedestrian in the crosswalk at the intersection of Flamingo and Ling Lane. 

Respondent Babylyn Tate was driving westbound on Flamingo Boulevard 

behind Evans-Waiau. According to Tate, Evans-Waiau "braked hard and 

abruptly" but Tate did not see a turn signal or a brake light. She testified 

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that she rear-ended Evans-Waiau's car despite braking and swerving to the 

left to try and avoid a collision. No one reported any injuries at the scene. 

Evans-Waiau reported the accident to the police, who responded 

approximately two hours later. After several months passed, during which 

appellants obtained medical treatment, appellants filed a complaint, 

alleging that Tate negligently operated her car and caused appellants 

injury.1Tate answered, asserting that Evans-Waiau was comparatively 

negligent as an affirmative defense and that appellants could not otherwise 

prove that their medical treatment was causally related to the October 

accident. 

At trial, appellants called Jorge Parra-Meza, who is EvansWaiau's significant other and Parra-Mendez's brother, as a witness. ParraMeza owns the vehicle that Evans-Waiau was driving when the accident 

occurred, and he is the father of the children who were in the vehicle with 

Evans-Waiau. During his testimony, which primarily focused on EvansWaiau's injury claims, Parra-Meza stated he had "smoked-our taillight 

covers installed on the vehicle after he purchased it. During crossexamination, he affirmed that the vehicle had been rear-ended twice, 

including this accident, after he added the smoked-out taillights. 

Tate introduced an audio/video recording that Parra-Meza 

made the night of the accident. In the video, Parra-Meza addressed the 

damage to the vehicle and stated: 

You can see the fuckin bumper is fuckin' totaled. 

Look at the shape of this fuckin' big ass dent right 

here, too. The lights are obviously out. Light's 

fuckin' out here. I don't know how the fuck this 

1At some point during her treatment, Evans-Waiau was involved in 

another car accident, and an ambulance transported her to the hospital. 

Evans-Waiau underwent spinal surgery after the second accident. 

3 
happened but look, a big ass dent here, a big ass 

dent here. Fuck. 

Appellants objected to its admission as irrelevant hearsay. 

They also argued that even if it had potential relevancy, it should be 

excluded because Parra-Meza's use of profanity carried a potential for 

unfair prejudice that outweighed any probative value the recording may 

have. The district court concluded that the recording was relevant to the 

bias of both Parra-Meza and Evans-Waiau because no one reported an 

injury from the crash until after Parra-Meza made the recording while he 

wondered who was going to pay for the damage from the wreck. The court 

concluded the recording was not hearsay because it was not offered for the 

truth of the matter asserted and that the profanity was not prejudicial, as 

the jury would likely understand Parra-Meza's frustration with the damage 

to his vehicle. The court thus allowed Tate to play the video. On 

questioning, Parra-Meza confirmed that his children were in the 

background when he made the video. He also confirmed that he was angry 

and wondered who would pay for the damage to the vehicle when he made 

the video. 

The district court also allowed Tate to ask appellants medical 

providers questions "regarding the existence of any past working 

relationship with [appellants] counsel involving medical liens only." 

During trial, Evans-Waiau confirmed that she met with her initial attorney, 

Paul Powell, before meeting with any doctors, and that Powell referred her 

to a chiropractor. Powell also referred Evans-Waiau to Dr. Garber, who 

performed spinal surgery on Evans-Waiau. 

Regarding medical liens, Dr. Rosier, a pain management 

physician, performed a selective nerve block on Evans-Waiau. He referred 

her to Dr. Khavkin, a neurosurgeon, for a neurosurgical evaluation, which 

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showed a structural disc injury. Dr. Khavkin recommended Evans-Waiau 

undergo a spinal fusion, which Dr. Garber affirmed when Evans-Waiau 

visited him for a second opinion.2Dr. Rosler billed several thousand dollars, 

but he treated Evans-Waiau on a medical lien "on any potential settlement" 

she received. Dr. Khavkin also treated Evans-Waiau on a medical lien. 

Tate called Dr. Schifini, a board-certified anesthesiologist, as a 

witness. He reviewed all available medical records, imaging studies, 

deposition testimony, accident-related data, and a video. He did not form 

an opinion on whether the accident caused injuries to either Parra-Mendez 

or Evans-Waiau because "[Mere was no objective evidence . . . to indicate 

that there was any injury in this particular case." Instead, he gave 

appellants "the benefit of the doubt" and "assume[d] that they were injured 

in the manner described. Based on that assumption, he addressed whether 

the treatments appellants received were reasonable and necessary. 

Appellants moved to strike Dr. Schifini's testimony, arguing 

that it could not help the jury because he did not opine on whether 

appellants were injured in the crash. Further, they asserted that his 

testimony was not proper under Williams v. Eighth Judicial District Court, 

127 Nev. 51,8, 262 P.3d 360 (2011), because it did not consider their theory 

of causation. The district court denied the motion, concluding that Dr. 

Schifini's testimony satisfied Williams because he "assume[d] that [EvansWaiau] had an injury," yet concluded that it was resolved and likely not 

caused by the accident. The court also pointed out that appellants failed to 

2Whi1e Dr. Rosler testified that he referred Evans-Waiau to Dr. 

Garber for a second opinion regarding the necessity of spinal surgery, 

Evans-Waiau testified that Powell referred her to Dr. Garber, and on her 

patient intake form, Evans-Waiau indicated that she learned of Garber's 

practice from Powell. 

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contemporaneously object to the testimony, and thus, in the absence of clear 

error, appellants motion to strike failed. 

Before closing arguments, the district court provided two jury 

instructions related to Evans-Waiau's potential comparative negligence. 

First, the district court gave Instruction No. 34, which provided, 

A person shall not drive, move, stop or park any 

vehicle . . . if such vehicle . . . [i] s not equipped with 

lamps, reflectors, brakes, horn and other warning 

and signaling devices . . . required by the laws of 

this State . . . under the conditions and for the 

purposes provided in such laws. 

Next, the court gave Instruction No. 35, which provided that under Nevada 

law, lelvery motor vehicle must be equipped with two tail lamps mounted 

on the rear, which, when lighted, emit a red light plainly visible from a 

distance of 500 feet to the rear." The instruction continued that if the jury 

concluded a party violated that law, "it is your duty to find such violation to 

be negligence, and you should then consider the issue of whether that 

negligence was the proximate cause of injury or damage to the plaintiff." 

During closing argument, Tate's attorney discussed "the value 

of the dollar" as it relates to appellants' requested damages. He argued as 

follows: 

The value of the dollar outside the courtroom is 

this, if the average family of four makes $50,000 a 

year, if the average family of four saves $50,000 a 

year makes $50,000 a year [sic] and lees pretend 

that family never had to pay a mortgage, never had 

to pay rent, never had to buy groceries, never ever 

[sic] to pay for a barber, never had to hail a cab, 

never went to the movies, never went to a 

restaurant, never paid a bill. It would take that 

family that makes $50,000 a year, if they never 

paid for any clothing, they never paid for children's 

clothing, never paid for schoolbooks, they never 

made a car payment, they never paid for gas, they 

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never paid for electricity, it would save [sic] that 

family of four 20 years to save $1 million. 

Appellants objected on the basis that the argument improperly suggested 

that the jury consider Tates ability to pay any potential judgment, as the 

clear inference of such an argument was that Tate would not be able to pay 

appellants projected damages. The district court sustained the objection as 

it assumed facts not in evidence but allowed Tate to make a hypothetical 

argument of how long it would take a family to save the requested damages 

"ftlo put it in perspective on some level how much money it is." 

Following the ruling, Tate argued: 

If that average family of four managed at the end 

of the year to have $5,000 more in the bank than 

they have the previous year, they'd be doing—that's 

better than most of us. That's $5,000 at the end of 

the year that they didn't have the previous year. A 

lot of people aren't able to do that. 

And if that family was able to save $5,000 a year, 

how long would it take them to save $1 million? It 

would take them 200 years to save a million dollars. 

Thaes how much money they're asking for. 200 

years. A million dollars. Thaes 1/3 of one element 

of one of the damages they're claiming in this case. 

It would take them 600 years to save $3 million. 

Thaes not Monopoly money they're asking for. 

They're asking for real money. Real money. 

Appellants did not object to this argument. The jury returned a general 

verdict finding Tate not negligent, and the district court entered judgment 

on the verdict. The court of appeals affirmed, and we granted review. 

DISCUSSION 

Appellants did not waive their attorney-misconduct claims by not moving far 

a new trial in district court 

Tate argues that appellants waived their attorney-misconduct 

claims because they did not move for a new trial before filing this appeal. 

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Relying on Lioce v. Cohen, 124 Nev. 1, 18, 174 P.3d 970, 981 (2008), Tate 

contends that a motion for a new trial is required in the attorneymisconduct realm because the district court "must evaluate the evidence 

and the parties and the attorneys' demeanor to determine whether a party's 

substantial rights were affected" by the alleged attorney misconduct. Lioce, 

124 Nev. at 18, 174 P.3d at 981. We disagree. 

We recently addressed whether a party must move for a new 

trial to raise a preserved issue on appeal in Rives, 138 Nev., Adv. Op. 17, 

506 P.3d at 1068, and held that "a party need not file a motion for a new 

trial to raise a preserved issue on appeal or request a new trial as a remedy 

for alleged errors below." This general rule applies regardless of the alleged 

trial error, and Lioce does not require that a party move for a new trial 

before pursuing an appeal pertaining specifically to alleged attorney 

misconduct relating to improper arguments.3 Lioce happened to arise from 

the post-trial motion process, but that procedural posture does not work as 

an encumbrance to appellate review, such that a party who timely objected 

to the alleged misconduct but did not move for a new trial cannot appeal 

from the final judgment on the basis that the unchecked misconduct 

resulted in an unfair trial. 

In Lioce, we addressed "the issue of which standards district 

courts are to apply when deciding tnotions for a new trial based on attorney 

misconduct." 124 Nev. at 14, 174 P.3d at 978 (emphasis added). However, 

3As we noted in Rives, while a party need not move for a new trial 

before pursuing an appeal, there are several practical benefits to doing so 

such as allowing a district court to correct alleged errors without pursuing 

potentially unnecessary appellate litigation or developing a better record 

for potential appellate review by allowing the district court to articulate its 

reasoning for its rulings and the parties to "crystallize" their arguments. 

506 P.3d at 1069 n.3. 

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we framed the issue that way because the underlying appeals were taken 

from orders granting or denying motions for a new trial based on alleged 

attorney misconduct. Id. at 8, 10-11, 14, 174 P.3d at 975, 976-77, 978. Thus, 

Lioce arose from the post-trial motion process, and thus, we addressed the 

applicable standards for such motions, but we did not impose a requirement 

that a party must move for a new trial based on alleged attorney misconduct 

to preserve that issue for appeal.4While Tate raises several prudential 

arguments that district courts are best situated to make factual findings 

and appellate review may be enhanced if a party first seeks a new trial in 

district court, such concerns do not warrant creating a requirement that a 

party move for a new trial as a prerequisite to raising preserved issues on 

appeal when the rules do not contain such a requirement.5Accordingly, we 

conclude that a party need not move for a new trial as a prerequisite for 

preserving its attorney-misconduct claims for appeal when that party 

40ur prior caselaw does not require a contrary result. First, in BMW 

v. Roth, we reversed a decision to grant a new trial as to one of the plaintiffs 

because that plaintiff never moved for a new trial or joined the other 

plaintiffs motion for a new trial, and thus, there was no basis for the district 

court to grant that plaintiff a new trial. 127 Nev. 122, 132 n.4, 252 P.3d 

649, 656 n.4 (2011). Second, in Bato v. Pileggi, we concluded that the 

appellant's failure to either contemporaneously object to the attorney 

misconduct or move for a new trial based on attorney misconduct 

constituted waiver of the claims. No. 68095, 2017 WL 1397327, at *1 (Nev. 

Apr. 14, 2017). Finally, in Craig v. Harrah, we noted that we had not 

previously held that a party must move for a new trial to preserve an issue 

for appellate review and concluded that "it is not necessary to so hold in the 

instant case, or to pass, now, finally upon that question." 65 Nev. 294, 308, 

195 P.2d 688, 694 (1948). 

5Rives squarely forecloses Tates argument that NRAP 3A(a) goes to 

jurisdiction only, not issue preservation. 138 Nev., Adv. Op. 17, 506 P.3d at 

1068. 

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objected to the misconduct in district court. As appellants raised objections 

to the conduct they challenge on appeal, we next address their arguments 

that such misconduct, along with other alleged trial errors, warrants 

reversal. 

Tate did not make an improper ability-to-pay argument 

Appellants contend that Tate made an improper ability-to-pay 

argument in closing that constituted reversible attorney misconduct 

because it focused on how many years it would take a family to save enough 

money to cover the requested damages. They also argue that Tates 

attorney's comments improperly encouraged jury nullification and that her 

attorney made an improper golden-rule argument. We disagree. 

We review whether an attorney's comments constitute 

misconduct de novo. Lioce, 124 Nev. at 20, 174 P.3d at 982. "A defendant's 

ability or inability to pay a judgment is no more relevant to the issue of 

liability than is the fact of insurance." White v. Piles, 589 S.W.2d 220, 222 

(Ky. Ct. App. 1979). "[Tlhe ability of a defendant to pay the necessary 

damages injects into the damage determination a foreign, diverting, and 

distracting issue which may effectuate a prejudicial result." Geddes v. 

United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). 

All the cases on which appellants rely focus on whether the 

defendant explicitly mentioned or asked the jury to consider the defendant's 

lack of wealth or inability to pay any judgment, which Tate did not do here. 

See, e.g., id. (concluding that the district court erred when it considered the 

defendant's inability to pay a substantial monetary judgment when 

fashioning a judgment). Instead, Tates attorney merely discussed the value 

of a dollar and "[told] the jury to determine what amount of money" would 

compensate appellants and "what that money means to them." A.C. ex rel. 

Cooper v. Bellingham Sch. Dist., 105 P.3d 400, 407 (Wash. Ct. App. 2004). 

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This argument did not ask the jury to reject appellants claims based on 

Tate's inability to pay a judgment and did not even discuss Tate's financial 

circumstances. Accordingly, while such an argument would be improper, 

Tate did not make an ability-to-pay argument here. 

Although appellants contend that this argument also 

improperly encouraged jury nullification, Tate's attorney "did not implore 

the jury to disregard the evidence." Capanna v. Orth, 134 Nev. 888, 891, 

432 P.3d 726, 731 (2018). Jury nullification is the "knowing and deliberate 

rejection of the evidence or refusal to apply the law either because the jury 

wants to send a message about some social issue . . . or because the result 

dictated by law is contrary to the jury's sense of justice, morality, or 

fairness." Lioce, 124 Nev. at 20, 174 P.3d at 982-83 (quoting Jury 

Nullification, Black's Law Dictionary (8th ed. 2004)). The argument here, 

as reframed, provided a hypothetical as context for the damages amount 

appellants sought, and Tate ultimately argued that evidence did not 

support negligence or the necessary element of causation; this does not 

amount to an improper jury-nullification argument. Cf. Capanna, 134 Nev. 

at 890-91, 432 P.3d at 731 (rejecting argument that defendant's counsel 

advocated for jury nullification, as the record showed that, in context, 

counsel "merely argued the role of the jury in the deliberative process," and 

to the extent counsel asked the jury to send a message, the argument was 

not prohibited because counsel did not ask the jury to ignore the evidence). 

As to whether the argument constituted an impermissible 

golden-rule argument, appellants focus particularly on Tate's statement 

that if a family was able to save $5,000, 'they'd be doing—that's better than 

most of us." But appellants did not object to this revised closing argument 

as an improper golden-rule argument, and thus, waiver applies. See Lioce, 

124 Nev. at 19, 174 P.3d at 981 (holding that a "party rnust object to 

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purportedly improper argument to preserve this issue for appear and 

explaining that the issue is "generally deem [ecll" waived if the party fails to 

object to it). While appellants objected to the initial hypothetical, they 

objected only on the ground that it was an impermissible ability-to-pay 

argument. They did not make a golden-rule objection, despite that a goldenrule objection is distinct from an ability-to-pay objection. Compare Lioce, 

124 Nev. at 22, 174 P.3d at 984 (explaining that a golden-rule argument "is 

an argument asking jurors to place themselves in the position of one of the 

partiee), with Geddes, 559 F.2d at 560 ("Mhe ability of a defendant to pay 

the necessary damages injects into the damage determination a foreign, 

diverting, and distracting issue which may effectuate a prejudicial result."). 

While a party must object to an improper attorney argument to 

preserve the issue for appeal, when a party fails to object, we may still 

review allegations of such misconduct for plain error. Lioce, 124 Nev. at 19, 

174 P.3d at 981-82. To succeed on plain-error review of unobjected-to 

attorney misconduct, a party must show "that no other reasonable 

explanation for the verdict exists." Id. at 19, 174 P.3d at 982 (quoting Ringle 

v. Bruton, 120 Nev. 82, 96, 86 P.3d 1032, 1041 (2004)). Here, assuming that 

Tates attorney made an improper golden-rule argument by stating that a 

family able to save $5,000 would be doing better "than most of us," that 

statement does not offset the evidence supporting the jury's verdict. See id. 

("This standard addresses the rare circumstance in which the attorney 

misconduct offsets the evidence adduced at trial in support of the verdict."). 

Specifically, the jury considered evidence that (1) Evans-Waiau's vehicle 

suffered minimal damage and no injuries were apparent at the scene 

although the parties stayed there for two hours after the accident; 

(2) Evans-Waiau may have contributed to the accident; (3) appellants did 

not speak to a doctor until after visiting an attorney; (4) before surgery, 

12 
Evans-Waiau was in another automobile accident that required immediate 

transport to a hospital; and (5) appellants' medical care was not reasonable. 

This evidence supports the jury's verdict such that we cannot conclude that 

the allegedly improper argument affected appellants substantial rights, 

and thus, appellants cannot show plain error. See id. at 19 n.32, 174 P.3d 

at 982 n.32 (explaining that "[arreparable and fundamental error. . . is only 

present when it is plain and clear that no other reasonable explanation for 

the verdict exists" (internal quotation marks omitted)).6 

Appellants' remaining arguments do not warrant reversal 

Appellants argue that the district court abused its discretion 

when it (1) admitted the Parra-Meza audio/visual recording, (2) gave two 

comparative-negligence jury instructions regarding appellants' taillights, 

and (3) allowed Dr. Schifini to testify as an expert witness. 

6Appellants also argue that Tate's counsel engaged in attorney 

misconduct by using evidence that appellants were treated on medical liens 

to argue that appellants' medical care was attorney driven despite the lack 

of evidence to support that claim. However, the core of this argument is 

that Tate's counsel violated the district court's order granting a motion in 

limine, which precluded such an argument absent supporting evidence in 

the record. Because appellants did not object to this argument at trial, and 

a motion in limine preserves an error that violates the initial order only if 

the complaining party objects at trial, BMW, 127 Nev. at 137, 252 P.3d at 

659, this argument is waived, Lioce, 124 Nev. at 19, 174 P.3d at 981. 

Regardless, as explained above, sufficient evidence supports the jury's 

verdict, and thus, any error in allowing the argument does not warrant 

reversal. See Lioce, 124 Nev. at 19, 174 P.3d at 981-82. For similar reasons, 

we reject appellants' contention that Tate's counsel engaged in attorney 

misconduct by arguing that Evans-Waiau's insistence on waiting for police 

to respond to the accident undermines her credibility. See id. (explaining 

that unobjected-to attorney misconduct is not reversible unless the 

complaining party shows "that no other reasonable explanation for the 

verdict exists" (internal quotation marks omitted)). 

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First, as to the district court's decision to admit the Parra-Meza 

audio/visual recording, we conclude that the district court did not abuse its 

discretion, as it properly found that the recording was relevant to ParraMeza's credibility and motivation in testifying. See Daisy Tr. v. Wells Fargo 

Bank, N.A., 135 Nev. 230, 232, 445 P.3d 846, 848 (2019) (reviewing a district 

court's decision admitting evidence for an abuse of discretion). Parra-Meza 

testified in support of Evans-Waiau's alleged injuries, and the recording and 

his associated testimony could show Parra-Meza was motivated to inflate 

Evans-Waiau's injuries, especially in light of the relatively minor damage 

to the vehicle. Robinson v. G.G.C., Inc., 107 Nev. 135, 143, 808 P.2d 522, 

527 (1991) (concluding that evidence of a witness's motivation to testify is 

admissible for impeachment purposes); cf. Rish v. Simao, 132 Nev. 189, 197, 

198 n.4, 368 P.3d 1203, 1209, 1210 n.4 (2016) (noting that "even in the 

absence of supporting expert testimony, there is a common-sense 

correlation between the nature of the impact and the severity of the 

injuries," but acknowledging that "Ell ow-impact collisions can cause serious, 

as well as minor, injuries"). Further, as the evidence was offered to show 

Parra-Meza's motivation in testifying about Evans-Waiau's injuries, it is 

not hearsay. NRS 51.035 (defining hearsay as an out-of-court statement 

"offered in evidence to prove the truth of the matter asserted"). Finally, the 

use of profanity itself does not make a recording per se unduly prejudicial, 

see, e.g., United States v. Bufalino, 683 F.2d 639, 647 (2d Cir. 1982) 

(concluding that a tape recording of an extortion threat that contained 

several obscenities was not highly prejudicial); Foster v. Schares, No. 08-

0771, 2009 WL 606232, at *5 (Iowa Ct. App. Mar. 11, 2009) (explaining how 

"the profanity in question has become commonplace throughout all 

segments of society," and concluding that the district court therefore did not 

abuse its discretion by admitting evidence that the plaintiff told the 

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defendant he "better have Ying insurance), and we perceive no abuse of 

discretion in the district court's finding that the jury would likely not be 

surprised at the profanity, given the context and circumstances in which 

Parra-Meza used it. 

Second, the district court did not abuse its discretion when it 

gave the comparative-negligence jury instructions. MEI-GSR Holdings, 

LLC v. Peppermill Casinos, Inc., 134 Nev. 235, 237-38, 416 P.3d 249, 253 

(2018) (reviewing a decision to give a jury instruction for an abuse of 

discretion). Both Evans-Waiau and Parra-Meza testified that Parra-Meza 

installed aftermarket taillight covers that "smoked out" the rear taillights 

to the vehicle. Parra-Meza agreed with the "interpretation" that regular 

taillights are more visible than smoked-out taillights and acknowledged 

that the vehicle had been rear-ended twice after he installed the smokedout taillight covers. That testimony, coupled with Tates testimony that she 

did not see "any turn signal" or brake lights and "would have seen a turn 

signal" had Evans-Waiau used one, supports the district court's decision to 

give the challenged instructions regarding required safety equipment and 

taillight visibility requirements. See Banks v. Sunrise Hosp., 120 Nev. 822, 

832, 102 P.3d 52, 59 (2004) NA] party is entitled to jury instructions on 

every theory of her case that is supported by the evidence." (alteration in 

original) (internal quotation marks omitted)). 

Third, we are not persuaded that the district court abused its 

discretion by allowing Dr. Schifini's testimony. Leavitt v. Siems, 130 Nev. 

503, 509, 330 P.3d 1, 5 (2014) (reviewing a decision to allow expert 

testimony for an abuse of discretion). His testimony assumed that 

appellants were injured in the crash and suffered the symptoms they 

reported, and based on those assumptions, he concluded that several 

aspects of the medical care appellants received were not reasonable. 

15 
Because his testimony "include[d] the plaintiffs causation theory in his 

analysis," the district court properly allowed it as rebuttal expert 

testimony.7 FGA, Inc. v. Giglio, 128 Nev. 271, 284, 278 P.3d 490, 498 (2012) 

("[F]or defense expert testimony to constitute a contradiction of the party 

opponent's expert testimony, the defense expert must include the plaintiffs 

causation theory in his analysis."), Williams, 127 Nev. at 530-31, 262 P.3d 

at 368 (same). 

CONCLUSION 

Consistent with Rives, an appellant need not move for a new 

trial to raise claims of improper attorney arguments on appeal if they 

preserved the issue with an objection. As to the merits, on this record, we 

conclude that the alleged improper ability-to-pay argument and golden-rule 

argument do not warrant reversal, either because they fall within a 

permissible range of argument or because appellants did not timely object 

and are unable to show plain error. As to the other alleged trial errors, we 

perceive no abuse of discretion in the district court's decision to (1) admit 

the audio/video recording of Parra-Meza, as the recordings met relevancy 

criteria; (2) give comparative-negligence jury instructions in light of 

undisputed testimony regarding alteration of the taillight covers and 

conflicting testimony about turn signal use; and (3) allow Dr. Schifini to 

testify, because his testimony met the requirements for expert witness 

7We decline to consider appellants other argument that an expert can 

testify to the reasonableness of a party's medical treatment only if that 

expert also asserts a medical causation theory that contradicts the party 

opponent's medical causation theory because appellants did not provide any 

authority supporting that argument. Edwards v. Emperor's Garden Rest., 

122 Nev. 317, 330 n.38, 130 P.2d 1280, 1288 n.38 (2006) (explaining that 

this court will not consider claims unsupported by cogent argument and 

relevant authority). 

16 

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testimony on causation. Accordingly, we affirm the district court's 

judgment on the jury verdict. 

ati/X, , J. 

Cadish 

We concur: 

6'9611.1.7"C.J. 

Parraguirre 

Hardesty 

Pickering 

Piek,Ad y 

17 
STIGLICH, J., with whom SILVER and HERNDON, JJ., agree, dissenting: 

I respectfully dissent because, in my view, Tates counsel's 

comments during closing amounted to an impermissible ability-to-pay 

argument. These comments infected the sanctity of the trial and potentially 

the jury's verdict. Therefore, I would reverse the judgment and remand for 

a new trial.' 

Tate's comments during closing argument impermissibly commented on 

Tate's ability to pay 

During closing arguments, Tate argued that it would take 

hundreds of years for an "average family" to save the $3 million in damages 

that appellants sought in this case. Tate maintained that these comments 

were only meant to remind the jurors of "the value of the dollar." The 

majority concludes that Tate did not make an ability-to-pay argument here 

because Tate "did not ask the jury to reject appellants claims based on 

Tates inability to pay a judgment and did not even discuss Tate's financial 

circumstances." 

I disagree. This line of argument was introduced to 

demonstrate the severity of Tates potential liability with the clear inference 

'I also believe that these comments violated the prohibition against 

invoking the "golden rule" because they may have "infect[ed] the jury's 

objectivity" by asking them to consider if they could save up the $5,000 per 

year required to pay off the potential judgment. See Lioce v. Cohen, 124 

Nev. 1, 22, 174 P.3d 970, 984 (2008) (explaining that a golden rule argument 

"is an argument asking jurors to place theinselves in the position of one of 

the parties"). However, reviewing for plain error because appellants did not 

preserve this claim, I agree with the majority that reversal is not warranted 

on this issue because "other reasonable explanation[s] for the verdict 

exists." Id. at 19, 174 P.3d at 982 (quoting Ringle v. Bruton, 120 Nev. 82, 

96, 86 P.3d 1032, 1041 (2004)). 

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being that she would not be able to pay. Cf. Geddes v. United Fin. Grp., 559 

F.2d 557, 560 (9th Cir. 1977) (observing that "the ability of a defendant to 

pay the necessary damages injects into the damage determination a foreign, 

diverting, and distracting issue which may effectuate a prejudicial result"). 

True, Tate did not explicitly ask the jury to consider Tate's ability to pay or 

Tate's financial circumstances. But Tate's emphasis that it would take an 

"average family" over 600 years to pay off the damages that appellants 

sought strongly—and impermissibly—implied that Tate could never pay 

back such a judgment. Tate did not mention the "value of the dollae in the 

abstract. Rather, Tate contended concretely that "[a] lot of people aren't 

able to [pay $5,000 a year]." This is a quintessential ability-to-pay 

argument that all but explicitly references Tate specifically. 

This improper argument prejudiced the jury's verdict and warrants a new 

trial 

In my view, Tates ability-to-pay argument during closing 

warrants reversal because I believe that the jury may have found that Tate 

was negligent had Tate's comments been disallowed. These comments 

urged the jurors to consider the value of the dollar and implied that such an 

onerous financial burden would be impossible for the "average family" to 

pay off. This line of argument focused not on whether Tate was negligent 

as a matter of law but rather on whether Tate could pay the judgment as a 

matter of fact. Cf. Taylor u. State, 132 Nev. 309, 323, 371 P.3d 1036, 1045 

(2016) (observing that "[t]he purpose of closing arguments is to 'enlighten 

the jury, and to assist . . . in analyzing, evaluating, and applying the 

evidence, so that the jury may reach a just and reasonable conclusion"' 

(quoting 23A C.J.S. Criminal Law § 1708 (2006))). I believe that excluding 

these improper comments may have reasonably led to a different verdict 

below, and I would reverse on this issue. See Wyeth v. Rowatt, 126 Nev. 

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446, 465, 244 P.3d 765, 778 (2010) (concluding that prejudicial error occurs 

when "the error affects the party's substantial rights so that, but for the 

alleged error, a different result might reasonably have been reached"). 

I believe that the court has erred in resolving this appeal. I 

respectfully dissent. 

L—f2, 

Stiglich") 

We concur: 

Silver 

J. 

Herndon 

7 J. 

3