In April of 2021, the Eighth Judicial District of Nevada conducted a civil jury trial that ended with an award of $29.5 million dollars in damages to plaintiff. It presents an opportunity to analyze the trial with the principles discussed in Bob Tyson’s book, Nuclear Verdicts™: Defending Justice for All.
The case involved a young woman working as a model at a convention in 2015 in Las Vegas, Nevada.i During the convention, she ate ice cream containing peanuts, resulting in a severe allergic reaction. Plaintiff lost consciousness and went without oxygen for several minutes, resulting in brain damage and quadriplegia.ii
Plaintiff alleged MedicWest, the emergency services on-site, breached their duty of care by failing to have the appropriate intravenous epinephrine on hand and available.iii Defendant maintained they provided the appropriate care throughout her time at the MedicWest site up and until AMR and the Clark County Fire Department paramedics arrived. Both presented testimony from experts and percipient witnesses.iv
Plaintiff sought damages for past and future pain and suffering, future medical care, and lost earning capacity.v Defendants sought a defense verdict. After a three-week trial, the jury deliberated for a total of three hours and ultimately awarded $29.5 million in damages to the plaintiff.vi
As noted above, the trial transcripts present an opportunity to review the arguments and evidence presented to the jury and compare those to the principles in Bob Tyson’s book, Nuclear Verdicts™: Defending Justice for All. Here, the principle that the defendant should present a number early and often did not happen. The purpose of giving a number early and often from the defense perspective is to give the jury a gauge and a lens to view the damages in the trial.vii Although it might seem counter-intuitive, Tyson’s book asserts that providing a number to the jury can and does result in a defense-verdict. The number should be given as early and as often as possible, which means that voir dire and opening statements provide opportunities to present the jury with your number.viii
The trial transcripts, available to the public, contain the defendant’s opening and closing statements provided to the jury. Interestingly, the defendant’s opening statement did not occur after plaintiff’s opening statement, as typically occurs.ix Rather, the defendant’s opening statement occurred after plaintiff presented their entire case in chief and had rested, on day ten of the trial.x
Due to the trial proceeding in this manner, the first opportunity defendant could have presented a number to the jury, besides voir dire, would have been on the tenth day of trial. A review of the court transcripts confirms that no number was provided at that time.xi In fact, it appears defendant did not discuss damages aside from a very brief couple of sentences and an explanation as to what testimony to expect from certain damages experts, without any mention of actual damages figures.xii
At closing, on the fourteenth day of trial, defendant provided a number to the jury with a very brief explanation.xiii The number defendant provided was $8 million, and the attorney briefly told the jury why they believed $8 million would be a fair amount.xiv The jury obviously disagreed, awarding $29.5 million in damages, broken down as follows:
Future Medical Expenses: $12.5 million
Past & Future Pain & Suffering: $15 million
Lost Future Income: $2 million
Total: $29.5 millionxv
It is impossible to know whether defendant presenting a number would have changed the outcome of this jury verdict. However, the review of the trial records shows that the plaintiffs provided a number early and often and apparently for the first nine days of the trial, without any number being provided by defendant.xvi The first number provided by the defendant was on the fourteenth day of trial, at closing.xvii The jury, hearing large figures from the beginning of trial and throughout from plaintiff, was probably conditioned to provide such a large verdict.
Finally, considering the foregoing, what can attorneys take away from this trial and verdict? The first takeaway is defendants should push for the trial to proceed in the normal course, with each party providing their opening statements at the beginning of the case. The manner in which this trial proceeded allowed plaintiff to control the narrative for the first nine days of trial and allowed them to give their number early and often. The second takeaway is defendant might have had more success if they focused more on damages and provided a reasonable number to the jury. This likely could have adjusted the jury’s expectations and grounded them, possibly preventing this nuclear verdict altogether.
i Giacalone v. MedicWest Ambulance, Inc., No. A-15-714139-C (Apr. 2021).
iii Giacalone, No. A-15-714139-C.
v Giacalone, No. A-15-714139-C.
vii Robert Tyson Jr., Nuclear Verdicts: Defending Justice for All (2020).
ix Giacalone v. MedicWest Ambulance, Inc., No. A-15-714139-C, Recorder’s Transcript of Jury Trial – Day 10 (Apr. 2021).
x Id. at 51.
xi Id. at 51 – 71.
xii Id. at 52.
xiii Giacalone v. MedicWest Ambulance, Inc., No. A-15-714139-C, Recorder’s Transcript of Jury Trial – Day 14, pg. 108 (Apr. 2021).
xv . at 52.
Giacalone v. MedicWest Ambulance, Inc., No. A-15-714139-C, Recorder’s Transcript of Jury Trial – Day 15, pg. 3 (Apr. 2021).
xvi See generally Giacalone v. MedicWest Ambulance, Inc., No. A-15-714139-C, Recorder’s Transcript of Jury Trial – Days 1 through 9 (Apr. 2021).
xvii Giacalone v. MedicWest Ambulance, Inc., No. A-15-714139-C, Recorder’s Transcript of Jury Trial – Day 14, pg. 108 (Apr. 2021).