131 Nev., Advance Opinion 50 

IN THE COURT OF APPEALS OF THE STATE OF NEVADA 

TONI SANDERS; AND ROBERT 

SANDERS, AS HUSBAND AND WIFE, 

Appellants, 

vs. 

RISA SEARS-PAGE, 

Respondent. 

No. 62792 

FILED 

JUL 16 2015 

Appeal from a jury verdict finding for defendant in a personal 

injury action arising from a vehicular accident. Eighth Judicial District 

Court, Clark County; Rob Bare, Judge. 

Reversed and remanded. 

Seegmiller & Associates and Clark Seegmiller and Robert L. English, Las 

Vegas, 

for Appellants. 

Atkin Winner & Sherrod and Thomas E. Winner and Andrew D. Smith, 

Las Vegas, 

for Respondent. 

BEFORE GIBBONS, C.J., TAO and SILVER, JJ. 

OPINION 

By the Court, SILVER, J.: 

When a juror is biased against a party , that juror must be 

struck from the jury. In this appeal, we consider whether the district 

court erred in declining to strike an empaneled juror whose background 

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experience implied bias but who asserted he could be impartial. We also 

consider the district court's decisions to invite challenges for cause with 

the juror present and to allow a newly discovered document to be entered 

into evidence and testified to on the final day of trial. We hold the district 

court erred in these respects and, accordingly, we reverse and remand for 

a new trial. 

FACTS AND PROCEDURE 

This appeal arises from a jury trial on a personal injury claim 

for damages following a 2009 car accident. Respondent Risa Sears-Page 

made a right turn from a left-hand lane and hit appellant Toni Sanders' 

car. Initially, the accident appeared minor as neither party claimed 

injuries at the scene. A few days later, Sanders purportedly began 

experiencing neck pain that worsened over time. Sanders and her 

husband, appellant Robert Sanders, sued Sears-Page for negligence to 

recover damages, including medical expenses. Sears-Page admitted 

liability but denied causation and damages. 

Sanders' injuries 

The central issues at trial involved whether the accident had 

caused or contributed to Sanders' injury and, if so, whether Sanders' 

claimed medical expenses were reasonable. Sanders, who had chronic 

back pain, had previously experienced neck pain in 2004 from a bone spur. 

But she denied having neck pain in the years immediately preceding the 

accident, and two of her treating physicians testified the accident with 

Sears-Page caused Sanders' 2009 neck pain. Both doctors also testified 

Sanders' medical procedures and surgeries following the accident to 

alleviate pain were reasonably necessary. 

To support her claimed damages, Sanders presented medical 

records and bills from Nevada Spine Clinic. Those records were generated 

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primarily by treatment from Doctors Jaswinder Grover, Babuk Ghuman, 

and Jorg Rosier, but many records were generated by other doctors and 

medical professionals at Nevada Spine Clinic. Of the people who treated 

Sanders at Nevada Spine Clinic, only Dr. Grover testified at trial. Dr. 

Grover was one of several doctors at that clinic who treated Sanders for 

chronic back pain before the 2009 accident and also treated her for neck 

pain after the accident, and testified all of Sanders' medical bills from 

Nevada Spine Clinic were reasonable. 

Sears-Page denied Sanders' injuries occurred as a result of the 

automobile accident. Instead, Sears-Page asserted Sanders' symptoms 

arose from a preexisting degenerative medical condition. In opening 

statements, Sears-Page emphasized that Dr. Grover "sold [Sanders] spine 

surgery" and the doctors at Nevada Spine Clinic encouraged unnecessary 

surgery and medical procedures for their own financial gain. Sears-Page 

argued she should not have to pay for Sanders' unnecessary medical 

expenses, which were purposely inflated by Nevada Spine Clinic. 

During trial, Sears-Page's retained medical experts, Dr. 

Joseph Schifini and Dr. Derek Duke, both testified Sanders' medical 

records showed a preexisting degenerative condition that developed over 

the course of several years, and her post-accident medical records were 

devoid of trauma to her neck. Both experts opined the accident did not 

cause Sanders' medical condition or contribute to her current neck pain. 

Dr. Duke further noted Sanders' medical history prior to the accident 

included treatment for neck pain in 2004 and 2009, which supported his 

opinion that Sanders' degenerative condition alone caused her current 

neck pain. 

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Both experts testified Sanders' surgery and medical 

procedures performed by Nevada Spine Clinic doctors were unnecessary 

and unreasonable. Further, they emphasized the clinic doctors' fees were 

significantly higher than average doctor's fees. Sears-Page argued Nevada 

Spine Clinic's physicians' practice of referring patients (like Sanders) to 

medical facilities owned by the physicians not only benefited the 

physicians financially, but also inflated Sanders' medical bills. 

Juror 9 

After opening statements and the testimony of Robert 

Sanders, Juror 9 notified the district court he previously had been a 

patient of Dr. Ghuman's at Nevada Spine Clinic. Because neither party 

mentioned Nevada Spine Clinic or Dr. Ghuman by name during voir dire, 

and the attorneys did not question Juror 9 regarding the names of his 

treating physicians for the back pain he disclosed during voir dire, Juror 9 

was unaware of the connection until after opening statements. 

Outside the presence of the other jurors, the district court and 

the attorneys questioned Juror 9. Juror 9 acknowledged several doctors at 

Nevada Spine Clinic treated him for a herniated disc. After an initial 

consultation with Dr. Ghuman, he was ultimately treated by other doctors 

at Nevada Spine Clinic who did not treat Sanders. When one of those 

doctors advised Juror back surgery was "inevitable" and encouraged him 

to schedule surgery, Juror 9 sought a second opinion from a doctor at a 

different facility regarding back surgery. Juror 9 followed the advice of 

the second doctor and opted for nonsurgical treatments. 

Juror 9 stated he could be impartial "without a doubt," would 

"base [his] decision on facts," and would not "be inclined to give more 

credibility" to the conclusions of the doctors at Nevada Spine Clinic. When 

specifically questioned whether his experience might bias him against the 

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doctors at Nevada Spine Clinic, however, Juror 9 told the court, "I don't—I 

don't think so" and "I think I can keep an open mind." When Juror 9 was 

questioned regarding his ability to be impartial when viewing Nevada 

Spine Clinic's billing records, Juror 9 stated he had no problem with the 

billing from the clinic because he "didn't pay the bills anyway," referring to 

his insurance. Juror 9 advised the court he viewed "surgery as a last 

resort" and had "never been real enamored with having surgery." 

Additionally, Juror 9 stated he conducted "some research on fusion versus 

disc replacement" when deciding whether to have back surgery, and 

stated, "I kind of know which way I'm personally going to be 

leaning . . . [s far as my case." Neither the judge nor the attorneys asked 

Juror 9 about the nature or extent of his independent research. 

With Juror 9 still present, the district court asked the parties 

if either wished to challenge Juror 9 for cause. Sears-Page stated she did 

not, but Sanders challenged Juror 9 for cause. The district court then 

asked Juror 9 to leave the courtroom, and Sanders argued for striking 

Juror 9. Although Sears-Page told the court the juror appeared to be 

impartial, Sears-Page also acknowledged there was an issue of bias. 

Additionally, Sears-Page characterized Sanders' arguments for striking 

Juror 9 as "goodk and suggested the district court make Juror 9 an 

alternate instead of removing him for cause. The court denied Sanders' 

motion to strike Juror 9 for cause, stating Juror 9's answers demonstrated 

his ability to be impartial. Juror 9 later became the foreman of the jury. 

Exhibit 62 

Prior to trial, both parties sought medical records from Dr. 

Pollard, who was unaffiliated with Nevada Spine Clinic and treated 

Sanders between 2004 and the accident, but Dr. Pollard only provided 

incomplete medical records in response. Both sides demanded Dr. Pollard 

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produce additional records prior to the close of discovery, but he failed to 

comply with those requests. Neither party sought an order to show cause 

for contempt from the discovery commissioner regarding this issue. 

Instead, the parties proceeded to trial with the incomplete records. 

During the week of trial, however, Sears-Page threatened Dr. 

Pollard with contempt if the complete records were not produced. Then, 

on the morning of the last day of trial, an unidentified person dropped off 

a box of documents at the courthouse to a member of Sears-Page's legal 

team. One of the documents was allegedly a portion of a medical record 

from a visit Sanders made to Dr. Pollard in 2005. That document stated 

Sanders suffered from "spinal degenerative joint disease and upper 

cervical area with bone spur." Yet, Sanders testified in her case-in-chief 

that she had not sought treatment for neck pain in 2005. 

Sears-Page sought to introduce this document into evidence 

and proposed to the district court that Dr. Duke, one of Sears-Page's 

retained medical experts, authenticate the document. Sanders objected to 

the document's admission, but the district court admitted the document as 

exhibit 62 because the court felt this result was fair given Sears-Page's 

aggressive tactics to obtain the records during the trial proceedings. 

Dr. Duke viewed exhibit 62 for the first time on the witness 

stand. He testified the document looked like a typical medical record. He 

then reviewed the document and opined that it supported his theory that 

Sanders had a chronic, degenerative disease that predated the 2009 

automobile accident and was the sole cause of her neck pain. 

The jury unanimously found for Sears-Page. Sanders appeals. 

ANALYSIS 

The issues we consider on appeal are whether the district 

court erred in (1) failing to strike Juror 9 for cause, (2) inviting challenges 

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for cause while Juror 9 was present, (3) admitting exhibit 62, and (4) 

allowing Dr. Duke to give undisclosed opinions based on exhibit 62. 1We 

agree that in all four instances the district court erred and its errors are 

reversible. 2 

Sanders' challenge to Juror 9 for cause 

Sanders argues the district court erred in failing to remove 

Juror 9 for cause because Juror 9's statements suggested bias and he did 

not unequivocally state he could be impartial. We agree. 

The Nevada Constitution, like the U.S. Constitution, 

guarantees litigants the right to a jury trial. Nev. Const. art. 1, § 3; see 

U.S. Const. amend. VII. "The right to trial by jury, if it is to mean 

anything, must mean the right to a fair and impartial jury." McNally v. 

Walkowski, 85 Nev. 696, 700, 462 P.2d 1016, 1018 (1969). "The 

importance of a truly impartial jury, whether the action is criminal or 

civil, is so basic to our notion of jurisprudence that its necessity has never 

really been questioned in this country." Whitlock v. Salmon, 104 Nev. 24, 

27, 752 P.2d 210, 212 (1988). Under Nevada's Constitution, civil litigants 

are entitled to 4-gimpartial jurors who will fairly and honestly deliberate 

'We do not address the remaining issues on appeal, including 

Sanders' arguments regarding attorney misconduct, the proposed jury 

instructions, and the eggshell plaintiff instruction. Insofar as the 

proposed jury instruction on apportionment of damages raises a purely 

legal question, we note the district court instructed the jury on 

aggravation of damages and appellants cite no Nevada law requiring the 

district court to also instruct the jury on apportionment of damages where 

there is only one alleged tortfeasor. 

2Without commenting on the merits of Sanders' arguments, we 

caution the parties to be mindful of the potential grounds for attorney 

misconduct. 

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the case without interference from personal bias or prejudice. 3 McNally, 

85 Nev. at 700-01, 462 P.2d at 1018-19. 

Nevada law is well-settled that whether a juror must be 

stricken for cause is a question of fact to be determined by the trial judge. 

Jitnan v. Oliver, 127 Nev. „ 254 P.3d 623, 628 (2011); see also NRS 

16.060 (providing that the district court tries all challenges to jurors for 

cause). Accordingly, we review a district court's denial of a challenge for 

cause to either a venireperson or a sworn juror for an abuse of discretion. 

See Jitnan, 127 Nev. at , 254 P.3d at 628-29; Blake v. State, 121 Nev. 

779, 795-96, 121 P.3d 567, 578 (2005); see also Nelson v. Commonwealth, 

589 S.E. 2d 23, 30-31 (Va. Ct. App. 2003) (applying the abuse of discretion 

standard to decisions regarding challenges for cause to both seated jurors 

and venirepersons). 

If a juror's statements suggest actual bias, the trial court must 

properly question the juror to determine if the juror will be impartial 

despite the bias. See Thompson v. Altheimer & Gray, 248 F.3d 621, 627 

(7th Cir. 2001) ("When a prospective juror manifests a prior belief that is 

both material and contestable. . . , it is the judge's duty to determine 

whether the juror is capable of suspending that belief for the duration of 

the trial." (emphasis omitted)). Actual bias arises where the juror's 

3Although the right to an impartial jury has largely been addressed 

by our supreme court in a criminal context rather than in civil law, we 

note California's constitutional provision regarding the right to a jury trial 

is similar to ours, and California law has consistently extended the right 

of an impartial jury to civil litigants. See Weathers v. Kaiser Found. 

Hosps., 485 P.2d 1132, 1140 (Cal. 1971); Grobeson v. City of Los Angeles, 

118 Cal. Rptr. 3d 798, 809-10 (Ct. App. 2010); Tapia v. Barker, 206 Cal. 

Rptr. 803, 805 (Ct. App. 1984); Clemens v. Regents of Univ. of Cal., 97 Cal. 

Rptr. 589, 591-92 (Ct. App. 1971). 

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statements evince a biased state of mind that will prevent the juror from 

acting impartially. United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997); 

see State v. Squaires, 2 Nev. 226, 230-31 (1866) (defining actual bias). 

A juror's opinions or views for or against a party do not, 

without more, establish bias. See Kaplan v. State, 96 Nev. 798, 800, 618 

P.2d 354, 355-56 (1980) (quoting Irvin v. Dowd, 366 U.S. 717 (1961)); see 

also Thompson, 248 F.3d at 625 (noting that a juror's stated tendency to 

believe prison guards over inmates, without more, is not a sign of bias). 

Rather, bias exists when the juror's views either prevent or substantially 

impair the juror's ability to apply the law and the instructions of the court 

in deciding the verdict. See Preciado v. State, 130 Nev. i, , 318 P.3d 

176, 178 (2014); see also Thompson, 248 F.3d at 625 (holding that a prior 

belief becomes "bias only if it were irrational or unshakable, so that the 

prospective juror would be unable to faithfully and impartially apply the 

law" (internal quotation marks and emphasis omitted)). 

If the trial court sufficiently questions the juror and 

determines the juror can set aside any bias and be impartial, we will 

generally defer to the trial court's decision. See Preciado, 130 Nev. at , 

318 P.3d at 178 (discussing the standard of review in challenges for 

cause); Thompson, 248 F.3d at 626-27 (finding the district court's failure to 

sufficiently question a juror after the juror revealed potential bias 

constituted reversible error); see also United States v. Maloney, 699 F.3d 

1130, 1137-38 (9th Cir. 2012) (discussing several cases where the jurors in 

question had experiences similar to the facts of this case and the district 

courts' questioning of those jurors was sufficient to show their 

impartiality), overruled on other grounds by United States v. Maloney, 755 

F.3d 1044 (2014). 

9 
Deference does not, however, mandate affirmance where 

failure to strike the juror was erroneous. See Jitnan, 127 Nev. at , 254 

P.3d at 629 (holding the district court abused its discretion in failing to 

strike a juror for cause). The Nevada Supreme Court has clarified that 

the district court should err in favor of seating an impartial jury whenever 

doubts remain as to the juror's impartiality. Bryant v. State, 72 Nev. 330, 

333, 305 P.2d 360, 361 (1956). Recently, the court reaffirmed that a 

"prospective juror who is anything less than unequivocal about his or her 

impartiality should be excused for cause." Preciado, 130 Nev. at , 318 

P.3d at 177; see Whitlock, 104 Nev. at 27, 752 P.2d at 212 ("The 

importance of a truly impartial jury, whether the action is criminal or 

civil, is so basic to our notion of jurisprudence that its necessity has never 

really been questioned in this country."). Thus, if the juror's statements, 

taken as a whole, indicate bias, the juror must be struck. See Jitnan, 127 

Nev. at , 254 P.3d at 629. 

Our supreme court has never addressed a situation where a 

juror asserts impartiality despite having an experience so similar to the 

case being tried that the juror's impartiality is improbable. Other 

jurisdictions considering this question have determined that a juror's 

experience may directly impact the juror's ability to fairly judge the case, 

leading to bias. See, e.g., Kirk v. Raymark Indus., Inc., 61 F.3d 147, 156 

(3d Cir. 1995); Dyer v. Calderon, 151 F.3d 970, 975-76 (9th Cir. 1998). In 

such cases, reliance on the juror's promise of impartiality is insufficient 

when the record as a whole demonstrates lingering bias. See Kirk, 61 F.3d 

at 156; Wolfe v. Brigano, 232 F.3d 499, 502 (6th Cir. 2000). 

In Kirk, the United States Court of Appeals for the Third 

Circuit held that a juror who had inhaled asbestos, knew people who were 

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suffering from asbestos poisoning, and feared succumbing to an asbestosinduced disease, should not have been empaneled in an asbestos damages 

case. 61 F.3d at 156. The court held the juror's background gave rise to 

an inference of impermissible bias in favor of the plaintiffs, and the juror 

would be more likely to return a large award of damages because of his 

own experiences. Id. Accordingly, the juror's statement of impartiality 

was insufficient to support the district court's denial of the challenge for 

cause. Id. 

Likewise, in Wolfe, the Sixth Circuit determined a district 

court erred by accepting a juror's assertion of impartiality where the juror 

had a close relationship with the victim's family and had spoken to them 

about the crime. 232 F.3d at 502. The Second Circuit in Torres upheld a 

district court's finding of bias where a prospective juror in a criminal trial 

engaged in similar conduct as the conduct with which the defendant was 

criminally charged. 128 F.3d at 44-45. And in Dyer, 161 Fr3d—at-956-74,7 

the Ninth Circuit held a trial judge erred in accepting a juror could be 

impartial in a murder trial where the juror's brother died under 

circumstances similar to those suffered by the victims. 1 5i 

We agree with these jurisdictions and hold that if a juror's 

"background is replete with circumstances which would call into question 

his ability to be fair," the district court should remove the juror for cause, 

even if the juror has stated he or she can be impartial. Kirk, 61 F.3d at 

156. In determining whether to strike a juror for cause, the trial court 

should assess the actual facts of the juror's experience rather than rely 

solely upon the juror's assertion of impartiality. 

In opening statements, Sears-Page told the jury "Nevada 

Spine Clinic sold Sanders surgery" and further suggested Sanders wanted 

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to make Sears-Page pay hundreds of thousands of dollars for this 

unnecessary surgery. After opening statements, Juror 9 admitted to the 

district court and parties he, too, was a patient at Nevada Spine Clinic. 

The district court questioned Juror 9 and elicited Juror 9's promise he 

would try to be impartial. The trial judge accepted those assurances as 

reliable. 

It is well-established that trial judges are in the best position 

to view the prospective juror's demeanor and judge the veracity of the 

juror's assertion of impartiality, see Jitnan, 127 Nev. at , 254 P.3d at 

628 and therefore, in many cases, our inquiry would normally end 

here. Under the particular facts of this case, however, we conclude the 

district court nevertheless abused its discretion in failing to strike Juror 9 

for cause. Despite Juror 9's assertion of impartiality, his experience was 

"replete with circumstances which would call into question his ability to be 

fair," Kirk, 61 F.3d at 156, and the record, read as a whole, suggests bias 

against the clinic's doctors and, by extension, Sanders' case. 

Juror 9's recent experiences with Nevada Spine Clinic bore 

striking similarity to Sanders', with the critical difference being Juror 9 

chose not to follow the clinic's advice. Juror 9 also expressly admitted he 

already determined "I kind of know which way I'm personally going to be 

leaning" under his own, and very similar, circumstances. Although Juror 

9 stated he would not discredit the opinions of the clinic's doctors, his 

decision to discredit the clinic's advice in his own case creates a strong 

inference Juror 9 would be unable to set aside bias in judging the facts of 

Sanders' case. This inference is critical because the crux of this case 

turned on competing expert opinions. The credibility of Sanders' case 

rested almost entirely on the evidence provided by the clinic. Neither the 

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court nor the parties asked any probing questions about Juror 9's opinions 

regarding the doctors or the clinic. The court simply denied Sanders' 

challenge based on Juror 9's superficial statement that he would try to be 

impartial. 

Moreover, Sears-Page's arguments during opening and closing 

statements emphasized the theory that the clinic's doctors "sold" Sanders 

unnecessary and overpriced surgery, along with other medical procedures. 

Because Juror 9 remained empaneled, Sears-Page benefited from making 

this argument to a juror who had been to the same clinic, seen one of the 

same doctors,4and been given the same advice to have surgery, but who 

instead researched alternatives to surgery and chose to disregard the 

clinic's opinion in favor of alternative, and inferably less expensive, 

nonsurgical treatments. In other words, this clinic failed to sell surgery to 

Juror 9. Juror 9's experience with this clinic significantly advantaged 

Sears-Page's ability to undermine the credibility of Sanders' experts and 

contest causation and damages. 

Additionally, Juror 9's statements claiming impartiality were 

not wholly unequivocal, supporting the implication of bias. Cf. Jitnan, 127 

Nev. at , 254 P.3d at 629 (detached language does not establish 

impartiality where the record otherwise indicates the juror could not 

unequivocally assure the court of his or her impartiality); see also 

Preciado, 130 Nev. at , 318 P.3d at 177 (holding that "a prospective 

4Although neither Dr. Hoffman nor Dr. Ithavkin treated Sanders or 

were involved in the trial, the defense focused on the records generated by 

multiple doctors at Nevada Spine Clinic in arguing that Sanders' 

requested damages were unreasonable and inflated, effectively putting the 

medical opinions and billing practices of Nevada Spine Clinic as a whole at 

issue. 

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juror who is anything less than unequivocal about his or her impartiality 

should be excused for cause"). Although Juror 9 did not state he doubted 

his ability to be impartial or he harbored bias, when directly questioned by 

the parties about whether his experience with the clinic would interfere 

with his ability to equally credit the evidence proffered by the clinic 

doctors, he qualified his statements regarding his ability to be impartial 

by responding, "I don't think so," and "I think I can keep an open mind." 

(Emphases added.) Further, Juror 9's statements that he did not have a 

problem with the clinic's billing practices because he did not have to pay 

the clinic's bills becomes particularly troublesome in light of defense 

counsel's continued arguments throughout trial that Sanders wanted 

Sears-Page to "pay for [her] surgery." 

Despite these facts, the district court refused to strike Juror 9 

for cause. This refusal is more disconcerting because the court later 

struck a juror who had dozed off for one to four minutes during the fifth 

day of trial. There, the juror was questioned separately and the juror 

assured the court she had been paying close attention and dozed for only a 

minute or two. Although neither party moved to strike that juror, the 

court sua sponte dismissed her. While we do not disparage the district 

court's determination to ensure the parties presented the case to an alert 

jury, we question why the court would remove a drowsy juror and not 

remove a juror whose background experiences unquestionably raised an 

inference of bias, to which both parties conceded. The court's sua sponte 

action of removing a drowsy juror while refusing to strike a juror whose 

background evinces bias is puzzling, particularly since there were 

sufficient alternates to replace both jurors. 

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Because a review of the record as a whole casts serious doubt 

on Juror 9's ability to be fair and impartial, we hold the district court 

abused its discretion by failing to strike Juror 9 for cause. 

This error is reversible because Juror 9's presence on the jury 

resulted in an unfair empaneled jury. See Jitnan, 127 Nev. at , 254 

P.3d at 630 (noting the party's constitutional right is violated when a 

seated juror is partial or unfair); Aftercare of Clark Cnty. v. Justice Court 

of Las Vegas Twp., 120 Nev. 1, 5, 82 P.3d 931, 933 (2004) (explaining 

Nevada's right to a jury trial in civil cases). Under Nevada law, when a 

failure to remove a biased juror results in an unfair empaneled jury, the 

error is reversible. See Jitnan, 127 Nev. at , 254 P.3d at 6301 3-1-r 

(holding that "a party's state constitutional rights [are not violated] unless 

he or she demonstrates actual prejudice; in other words, he or she must 

show that a member of the jury was unfair or partial"); McNally, 85 Nev. 

at 700, 462 P.2d at 1018. This is true even if the error is harmless, as the 

biased juror's presence on the jury violates the parties' right to an 

impartial jury under the Nevada Constitution. See Preciado, 130 Nev. at 

, 318 P.3d at 179 (a court's error in failing to strike a biased juror is 

harmless if the juror is not ultimately empaneled); Aftercare of Clark 

Cnty., 120 Nev. at 5, 82 P.3d at 933 (recognizing the right to jury trial in 

civil cases under the Nevada Constitution); McNally, 85 Nev. at 700, 462 

P.2d at 1018 ("The right to trial by jury, if it is to mean anything, must 

mean the right to a fair and impartial jury."); see also Thompson, 248 F.3d 

at 622 (holding the presence of a biased juror on a jury panel in a Title VII 

case warrants reversal regardless of whether the error was harmless). 

Here, unlike Jitnan and Preciado, in which the Nevada 

Supreme Court held the district courts' failure to remove biased 

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venirepersons was harmless because they were not ultimately empaneled, 

Z7 

1(4.-WNev. at 254 P.3d at 630-31; 130 Nev. at , 318 P.3d at 179, the 

biased juror was empaneled, and Sanders had no ability to exercise a 

peremptory strike to remove him from the jury. Under these particular 

facts, this court cannot state with certainty that Juror 9's preconceptions 

did not infect the jury panel or affect the jury's verdict in addition to 

biasing the juror's views. See Preciado, 130 Nev. at , 318 P.3d at 179. 

A party's challenge for cause while an empaneled juror is present 

In conjunction with the district court's error in failing to strike 

Juror 9, we also consider the ramifications of the district court's conduct in 

asking the parties, in front of Juror 9, whether either wished to challenge 

Juror 9 for cause. On appeal, Sanders argues these actions constitute 

error. The parties did not object to the court's conduct at trial, and we 

generally do not review unpreserved issues on appeal. See Old Aztec 

Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981); see also 

Oade v. State, 114 Nev. 619, 621-22, 960 P.2d 336, 338 (1998). However, 

we may review unobjected-to judicial conduct to prevent plain error. See 

Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986) 

(recognizing the appellate court's inherent ability to consider relevant 

issues to prevent plain error). 

Our supreme court has recognizedX a district court's conduct 

may influence jurors, prejudicing them against a party. See Ginnis v. 

Mapes Hotel Corp., 86 Nev. 408, 417-18, 470 P.2d 135, 140 (1970) ("[T]he 

words and utterances of a trial judge, sitting with a jury in attendance, is 

liable. . . to mold the opinion of the members of the jury to the extent that 

one or the other side of the controversy may be prejudiced or injured 

thereby." (quoting Peterson v. Pittsburgh Silver Peak Gold Mining Co., 37 

16 
Nev. 117, 122, 140 P. 519, 521 (1914))); see also Oade 114 Nev. at 624, 960 

P.2d at 339 (noting that a judge's repeated statements regarding decorum 

to the defendant's lawyer may have prejudiced the jury against the 

admonished party). While jurisdictions differ regarding whether a district 

court abuses its discretion by refusing to conduct challenges for cause 

outside the presence of the prospective jurors during voir dire, see People 

v. Flockhart, 304 F'.3d 227, 236 n.8 (Colo. 2013) (discussing this 

jurisdictional split), several have noted this refusal may amount to error if 

it results in the seating of a prejudiced juror. 5The American Bar 

Association recommends trial courts entertain challenges for cause outside 

the juror's presence, in part so the juror is not prejudiced against the party 

making the challenge. See ABA Standards for Criminal Justice: Discovery 

and Trial by Jury 15-2.7(a) (3d ed. 1996). 

After questioning Juror 9, and with Juror 9 still seated in the 

courtroom, the trial judge asked whether either party wished to challenge 

Juror 9 for cause. Sears-Page stated she had no challenge, but Sanders 

5See Flockhart, 304 P.3d at 237 (noting that although a trial court 

retains discretion to determine whether to conduct challenges for cause in 

front of a juror, such action may be an abuse of discretion depending on 

the facts surrounding the challenge and the juror); State v. Hardin, 498 

N.W.2d 677, 681-82 (Iowa 1993) (recognizing that if a juror becomes 

biased by hearing the challenge, the district court may have abused its 

discretion in requiring the parties to issue challenges in front of that 

juror); Brooks v. Commonwealth, 484 S.E.2d 127, 129-30 (Va. Ct. App. 

1997) (holding that the trial judge committed reversible error under 

settled Virginia law by requiring a party to challenge a juror in front of 

the juror); see also State v. Love, 309 P.3d 1209, 1213 (Wash. Ct. App. 

2013) (noting most parties would prefer to issue challenges outside the 

juror's presence to avoid possibly prejudicing the juror against the party)o 

• • • • • 7 •-• • A TN A-7 7 /-• e's / T ■-• .4 \ 

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stated she wished to challenge Juror 9 for cause. The trial judge then 

asked Juror 9 to leave the courtroom. 

Although Nevada law does not mandate judges entertain 

challenges for cause outside of the prospective juror's presence, a critical 

difference exists between the challenge of a prospective juror during voir 

dire and a challenge for cause in front of an empaneled juror, particularly 

where the challenge occurs immediately after the empaneled juror admits 

facts establishing an inference of bias against the party making the 

challenge, as occurred here. Had this exchange occurred during voir dire, 

the trial judge's conduct may not have prejudiced Sanders, as she would 

have had the ability to use a peremptory strike if she feared Juror 9 would 

be biased by the failed challenge. 

Yet, "lw'hat may be innocuous conduct in some circumstances 

may constitute prejudicial conduct in a trial setting," Oade, 114 Nev. at 

621, 960 P.2d at 338 (quoting Parodi v. Washoe Med. Ctr., 111 Nev. 365, 

367, 892 P.2d 588, 589 (1995)), and we hold such was the case under these 

facts. The district court's actions here placed Sanders in the difficult 

position of arguing before a juror that he should be removed, and that 

juror knew Sanders did not want him on the jury. See Brooks v. 

Commonwealth, 484 S.E.2d 127, 130 (Va. Ct. App. 1997) (noting the 

"untenable position" parties are put in when considering challenging a 

juror for cause due to the potential to create bias, especially when the 

challenge is argued in front of the juror). Under these facts, the district 

court's process of requiring the parties to issue their challenges for cause 

in front of Juror 9 amounted to plain error. See Gaxiola v. State, 121 Nev. 

638, 654, 119 P.3d 1225, 1236 (2005) (holding plain error arises where the 

error prejudicially impacts the verdict or seriously affects the judicial 

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proceedings' integrity or public reputation) (internal citations omitted); see 

also Brooks, 484 S.E.2d at 130 (finding error where the district court's 

actions likely led to a juror becoming biased against the party challenging 

the juror). Accordingly, this error is reversible. 

Exhibit 62 

We next consider whether the district court erred by admitting 

exhibit 62 into evidence and allowing Dr. Duke to testify to that document. 

We will not overturn a district court's decision regarding the admission of 

evidence absent a palpable abuse of discretion, as district courts have 

broad discretion in determining whether to admit evidence. Sheehan & 

Sheehan v. Nelson Malley & Co., 121 Nev. 481, 492, 117 P.3d 219, 226 

(2005). A district court abuses its discretion by admitting medical expert 

testimony that fails to comply with Nevada's rules governing the 

admission of evidence. See FCH1, LLC v. Rodriguez, 130 Nev. , 

335 P.3d 183, 190 (2014). 

We conclude the district court abused its discretion in 

admitting exhibit 62 because it was not properly authenticated. We 

likewise conclude the district court further abused its discretion in 

allowing Dr. Duke to testify to an undisclosed opinion regarding exhibit 

62. Finally, we conclude these errors were not harmless under these facts. 

Authentication 

Sanders argues exhibit 62 was improperly admitted because it 

was not authenticated. Sears-Page countersx exhibit 62 was properly 

admitted because both parties had attempted to obtain it prior to trial, two 

hearsay exemptions applied, and this court should defer to the district 

court's decision. We disagree. 

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Authentication is a basic prerequisite to the admission of 

evidence. See NRS 52.015. Under NRS 52.015(1), authentication of a 

document requires evidence or some other showing "that the matter in 

question is what its proponent claims." Authentication relates to 

relevancy because "evidence cannot have a tendency to make the existence 

of a disputed fact more or less likely if the evidence is not that which its 

proponent claims." Rodriguez v. State, 128 Nev. , 273 P.3d 845, 

848 (2012) (internal quotatio/ ratipkgromitted). 

NRS 52.325 sets forth the procedure for authenticating 

medical records. This statute requires the custodian of the medical 

records to deliver a "true and exact" copy of the subpoenaed medical 

records to the clerk of the issuing court on or before the subpoena's 

deadline. NRS 52.325(1). The record "must be authenticated by an 

affidavit" in accordance with NRS 52.260(3), and signed by the custodian 

of the medical records, verifying the documents are accurate reproductions 

of the original medical records. NRS 52.325(2), (4). Additionally, the 

custodian must certify those original records were "made at or near the 

time of the act, event, condition, opinion or diagnosis by or from 

information transmitted by a person with knowledge in the course of a 

regularly conducted activity." NRS 52.325(2). Medical records delivered 

pursuant to a subpoena must "be kept in the custody of the clerk of the 

court issuing the subpoena, in a sealed container supplied by the 

custodian of the medical record." NRS 52.335(1). 

In addition, NRS 52.025 through NRS 52.105 provide a 

nonexhaustive list of methods by which a document may be authenticated. 

NRS 52.015(2). As relevant here, NRS 52.025 permits a witness to 

20 
authenticate a document through testimony "if the witness has personal 

knowledge that a matter is what it is claimed to be." (Emphasis added.) 

Where an expert authenticating a document has 

o . . personal knowledge. . . as to how, when and in what manner" the 

document was made, the expert's testimony as to the document's 

authenticity, standing alone, is insufficient to authenticate the records. 

Frias v. Valle, 101 Nev. 219, 221-22, 698 P.2d 875, 877 (1985); see also 

NRS 52.025. In Frias, our supreme court considered an issue nearly 

identical to the one here. There, the district court allowed the admission 

of medical records after a doctor, who had treated the patient but who had 

not generated the records in question, testified the records belonged to the 

patient because they were labeled with the patient's name. Frias, 101 

Nev. at 221-22, 698 P.2d at 877. The doctor viewed the records for the 

first time while waiting to take the witness stand, and he therefore had no 

personal knowledge regarding those records. Id. at 221, 698 P.2d at 877. 

The Nevada Supreme Court reversed, holding the records were not 

properly authenticated because the specialist had no personal knowledge 

of the records' authenticity: he neither ordered the records nor used them 

in treating the patient, and he did not even view them until immediately 

prior to giving testimony. Id. 

Analogous to Frias, the document here, exhibit 62, merely 

contained Sanders' name on it. Dr. Duke did not author the document, 

was not the custodian of the record, and testified the document looked like 

a typical medical record. Dr. Duke, therefore, was not a proper witness 

who could authenticate the document under NRS 52.025 and NRS 52.015. 

Because no other evidence corroborated exhibit 62, since Sanders testified 

she had not sought medical care for neck pain in 2005, and the exhibit was 

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not properly authenticated, the district court abused its discretion in 

admitting exhibit 62. 

The district court admitted exhibit 62, over Sanders' objection, 

despite Sears-Page's failure to comply with any of NRS 52.325's 

requirements. Sears-Page's counsel admitted he did not know the identity 

or representative capacity of the person who literally "dropped off" 

documents to his paralegal that morning. See NRS 52.325(1) (requiring 

the custodian of the records to deliver or mail the records). Here, the 

custodian of records did not deliver them to the clerk of the court as is 

required by NRS 52.325(1). See NRS 52.320(1) (defining "Eclustodian of 

medical records"). And these medical records were not accompanied by a 

properly authenticated affidavit formatted according to NRS 52.260, 

signed by the custodian, or verified by the custodian to be "a true and 

complete reproduction of the original medical record." NRS 52.325(2). 

Nor was there any verification by the custodian that exhibit 62 was "made 

at or near the time of the. . . event" when it was purportedly recorded by 

Dr. Pollard or his staff during medical treatment of Sanders. Id. The fact 

that Sears-Page threatened to compel production of the medical records, 

and thereafter documents were dropped off during the trial, does not 

establish Dr. Pollard or his staff actually generated the documents or that 

the records were unaltered when the district court admitted exhibit 62 

into evidence. As in Frias, the district court committed error by admitting 

exhibit 62, and the error was not harmless. 

Undisclosed expert opinion 

Sanders next argues the district court compounded its error by 

allowing Dr. Duke, the retained defense expert, to thereafter testify to an 

undisclosed opinion regarding exhibit 62. Sears-Page claims the district 

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court did not err by admitting Dr. Duke's testimony regarding exhibit 62, 

which is particularly disconcerting because Sears-Page filed a motion in 

limine prior to trial to prohibit Sanders' experts from testifying to any 

undisclosed opinion. The district court granted Sears-Page's motion 

preventing Sanders' experts from offering any undisclosed opinions. Yet, 

the district court allowed Sears-Page's expert to testify to an undisclosed 

opinion on the final day of trial and after Sanders rested her case-in-chief. 

We agree this is error. 

Nevada Rule of Civil Procedure (NRCP) 16.1(a)(2) requires 

each party to provide a written disclosure of their experts and the contents 

of those experts' testimonies, including the information each expert 

considered in forming an opinion, well in advance of trial. Retained 

medical experts are subject to the requirements of this provision. See 

FCH1, 130 Nev. at , 335 P.3d at 189 (holding that where a treating 

physician's testimony exceeds the scope of opinions "formed during the 

. course of treatment" (internal quotatiq .fiattraomitted), the physician 

"testifies as an expert and is subject to the relevant requirements"). This 

rule serves to place all parties on an even playing field and to prevent trial 

by ambush or unfair surprise. See id. at , 335 P.3d at 190. The history 

behind the amendment of NRCP 16.1 reveals that one concern behind this 

rule was to prevent physicians from offering undisclosed opinions based 

upon evidence that had not been duly admitted or disclosed. See In re 

Proposed Amendments to NRCP 16.1(a)(2), ADKT 472 (Exhibit A to Order 

Scheduling Public Hearing and Requesting Public Comment, November 9, 

2011) (Memorandum from Discovery Commissioners Bonnie A. Bulla, 

Chris A. Beecroft Jr. and Wesley M. Ayres); id. (Letter from J.R. 

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Crockett, January 25, 2012, and Letter from Martin Kravitz, April 13, 

2012). 

In FCH1, the Nevada Supreme Court held a district court 

erred by allowing the plaintiffs treating doctors to offer opinions based, in 

part, on documents not disclosed during discovery. 130 Nev. at , 335 

P.3d at 190. One doctor read thousands of pages of records to form his 

opinion, yet disclosed only 21 pages during discovery, while other doctors' 

testimonies exceeded the bounds of their NRCP 16.1(a)(2)(B) disclosures 

and addressed topics not previously disclosed. Id. at , 335 P.3d at 189- 

90. Ultimately, the district court abused its discretion in admitting this 

testimony. Id. at , 335 P.3d at 190. Although the facts of FCH1 are 

somewhat different than the facts here, the supreme court's rationale is 

particularly instructive in this case as the court was ultimately concerned 

with basic fairness, while disfavoring trial by ambush. See id. 

Sanders testified in her case-in-chief that she had not 

experienced neck pain nor had she received treatment for neck pain after 

2004 and prior to the accident. Dr. Duke, Sears-Page's retained medical 

expert, testified Sanders had a chronic condition causing her neck pain. 

Further, he opined Sanders' neck pain predated the accident, citing to a 

Nevada Spine Clinic intake form, which was created shortly before the 

accident, noting Sanders was experiencing neck pain during that time. 

After exhibit 62 was admitted into evidence, the district court allowed Dr. 

Duke to make additional opinions based on its contents supporting his 

previous opinion that Sanders experienced chronic neck pain for years 

prior to the accident and that the accident did not contribute to her pain. 

The district court's decision allowing Dr. Duke to make an 

undisclosed opinion that exhibit 62 supported his position that Sanders 

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experienced chronic neck pain for years prior to the accident directly 

violated NRCP 16.1. 

Although NRCP 16.1(a)(2)(B) allows the trial court to relieve a 

party of its duty to comply with the written report requirement for good 

cause, no facts support the district court's decision that good cause existed 

in this case. Moseley v. Eighth Judicial Dist. Court, 124 Nev. 654, 668 

-411a-4- 

61- n.66, 188 P.3d 1136, 1146 n.66 (2008) (providin "[g] ood cause generally is 

established when it is shown that the circumstances causing the failure to 

act are beyond the individual's control"). Here, Sears-Page had ample 

opportunity to obtain complete medical records from Dr. Pollard's office 

prior to trial and failed to do so. Rather, she proceeded to trial and 

defended with documents and testimony previously obtained and disclosed 

during discovery. Sears-Page's actions threatening Dr. Pollard with 

contempt and obtaining records during trial do not constitute good cause, 

as nothing prevented Sears-Page from taking such actions prior to the 

discovery deadline. 

Moreover, although this is not a traditional trial-by-ambush 

situation because Sears-Page did not intentionally withhold information, 

the trial court's admission of exhibit 62 and allowing Dr. Duke to testify 

regarding its contents nevertheless unfairly surprised Sanders and 

damaged her case. Cf. Sheehan & Sheehan, 121 Nev. at 485, 492-93, 117 

P.3d at 222, 226-27 (noting that though a party intentionally withheld 

information, it was not a trial-by-ambush situation because that 

information was later disclosed). The district court not only violated the 

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express requirements of Rule 16.1, but also its purpose and policy. 6 See 

FCH1, 130 Nev. at , 335 P.3d at 190 (noting the purpose of NRCP 

16.1's document disclosure requirements). Accordingly, under these facts, 

the district court erred in allowing Dr. Duke to testify to an undisclosed 

expert opinion. 

Harmless error 

Sears-Page argues any error regarding exhibit 62 is harmless 

because Dr. Duke formed his opinion on other evidence previously 

disclosed to Sanders. We disagree. 

Although we do not reverse a decision where error is harmless, 

"if the moving party shows that the error is prejudicial, reversal may be 

appropriate." Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 778 

(2010). An error is prejudicial where the moving party shows "that the 

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

error, a different result might reasonably have been reached. The inquiry 

is fact-dependent and requires us to evaluate the error in light of the 

entire record." Id. (internal citations omitted). 

The district court's errors in admitting exhibit 62, although 

the document was not properly authenticated, and in allowing Dr. Duke to 

testify as to an undisclosed opinion regarding that document, were not 

harmless in light of the record as a whole. Importantly, Dr. Duke's 

6We further note that NRCP 16.1 parallels Federal Rule of Civil 

Procedure 26, which was enacted to prevent ambush at trial. See OrtizLopez v. Sociedad Espanola de Auxilio Mutauo y Beneficiencia de Puerto 

Rico, 248 F.3d 29, 35 (1st Cir. 2001); see also Vanguard Piping Sys., Inc. v. 

Eighth Judicial Dist. Court, 129 Nev. „ 309 P.3d 1017, 1020 (2013) 

(noting that "federal cases interpreting [analogous federal rules] are 

elf strong persuasive authority" (internal quotatioiomitted)). 

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pretrial disclosures focused on records noting Sanders' history of pain in 

her legs and back, yet Dr. Duke utilized exhibit 62 at trial to specifically 

recognize Sanders had an ongoing recorded history of chronic neck pain. 

And, exhibit 62 substantiated Dr. Duke's trial opinion of Sanders' ongoing 

history of neck pain, which significantly bolstered Sears-Page's defense 

while simultaneously impeaching the credibility of Sanders' testimony 

that she had not sought treatment for neck pain after 2004 and before the 

accident. 

This created both unfair surprise to Sanders and prejudice to 

her case. Sanders was unaware of exhibit 62 or Dr. Duke's opinion as to 

that document until the final hours of the trial. And, as exhibit 62 and Dr. 

Duke's opinion regarding that document significantly helped Sears-Page's 

defense and damaged the credibility of Sanders' testimony regarding the 

onset of her pain, but for this document and Dr. Duke's undisclosed 

opinion, the jury may have reached a different result. The unfair surprise 

under these facts is further apparent considering the district court allowed 

Dr. Duke's undisclosed opinion despite granting Sears-Page's pretrial 

motion preventing Sanders' experts from presenting undisclosed opinions. 

Because the district court allowed Dr. Duke, a retained 

defense expert, to testify to an undisclosed opinion after Sanders rested 

her case-in-chief, and because the district court previously granted SearsPage's motion preventing Sanders' experts from presenting undisclosed 

opinions, the district court abused its discretion. And, because these 

errors resulted in prejudice to Sanders' case, the error was palpable and is 

reversible. See Wyeth 126 Nev. at 465, 244 P.3d at 778 (holding such 

error is reversible where the result may have been different but for the 

error). 

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C J 

CONCLUSION 

The district court erred in failing to strike Juror 9 for cause as 

Juror 9's statements in their totality evinced bias against Sanders' case. 

This error resulted in an unfair empaneled jury, requiring reversal. The 

district court's process in allowing Juror 9 to be present while Sanders' 

challenged Juror 9 for cause likewise constitutes plain error under these 

facts. Further, the district court erred by admitting into evidence exhibit 

62 over Sanders' objection as this document was not properly 

authenticated. Finally, the district court erred when it allowed a retained 

defense expert to testify to an undisclosed opinion by utilizing exhibit 62. 

Accordingly, we reverse and remand for a new trial. 

J. 

Silver 

We concur: 

Aitr' J. 

Tao 

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