By the Court, TAO, J.:
The instant appeal arises from allegations of attorney misconduct in a products liability trial involving swimming pool filters. After the jury rendered a verdict in favor of the manufacturer, the plaintiff filed a post-trial motion seeking a new trial based upon alleged misconduct committed by the manufacturer's attorney. The district court denied the motion, but failed to make the detailed findings required by the Nevada Supreme Court.
The Nevada Supreme Court recently issued two opinions clarifying how claims of attorney misconduct must be handled both by the district court and subsequently on appeal. In this opinion, we take the opportunity to summarize those recent developments and to provide guidance to district courts tasked with resolving claims of misconduct. Because the district court in this case failed to make detailed findings regarding the alleged misconduct that might have enabled us to determine whether those cases would have affected its decision, we must remand the case to the district court to reconsider its decision in light of those cases and to make the necessary findings. To assist the district court, we identify some factors that must be considered on remand.
Respondent Pentair Water Pool and Spa, Inc. (Pentair), manufactures various models of swimming pool filters for both commercial and residential swimming pools, including the Nautilus FNS filter. In 2006, appellant Emmett Michaels purchased a Nautilus FNS filter for use in his backyard swimming pool. Michaels had owned his swimming pool for 27 years, and when his previous filter canister malfunctioned, he integrated the FNS canister into his preexisting filter system. Like many other homeowners, Michaels connected his pool filter system to an automatic timer that could be programmed to turn the system off at night and on again during the day.
Michaels alleged that the design of the FNS filter was legally defective because it lacked either (1) a redundant or secondary restraint to hold the canister together in the event of an explosive failure of the clamp; or (2) an external, automatic air release valve
Following a two-week trial, the jury returned a verdict in favor of Pentair on all claims. Michaels filed a post-trial motion for judgment as a matter of law or, alternatively, for a new trial, which was denied by the district court. Michaels now appeals from the denial of that motion.
In order to properly understand the evidence and the arguments made by the parties, a brief explanation of the operation of swimming pool filters is appropriate. The Nautilus FNS filter is a so-called split-shell design consisting of two pieces held together by a steel clamp to form a cylinder in which removable filter grids are placed. In operation, water is pumped from the pool and forced under pressure through the filter grids, which trap debris and remove it from the pool water. The steel clamp that holds the two cylinder pieces together can be removed so that the canister may be separated and the filter grids periodically cleaned or replaced.
Pool filter systems are designed as either open systems, in which a water pump pushes pool water through the filter, or closed systems, in which a water pump suctions water through the filter. In either system, a system of pipes carries water from the pool through the filter canister and then back to the pool. The flow of water through the system may be directed by a series of valves mounted on the pipes.
After a filter has been in operation for some time, debris from the pool can accumulate on the filter grids and eventually may clog the flow of water through the system, impeding the effectiveness of the system. To allow removal of some of the debris, some users manipulate the valves to reverse the flow of water through the filter grids and into a separation tank that collects the debris, in a process colloquially known as backwashing. Pentair discourages backwashing and its engineers consider it unsafe, but during trial its expert conceded that manufacturers were aware that users frequently backwashed filters and that such backwashing was foreseeable. In any event, after the filter grids have been backwashed, the valves can be switched back to their normal operating positions. Even with regular backwashing, however, the filter grid elements can eventually become so clogged with detritus that they may sometimes have to be removed and replaced entirely, which is why split-shell filter canisters such as the Nautilus FNS are designed with clamps allowing the canister to be opened.
So long as the filter system is operating normally, water continually moves through the filter cartridge and the water pressure within the filter canister remains more or less constant. However, the pressure within the system may vary from its normal operating levels under two conditions. First, if a large quantity of debris has collected on the filter grids and clogged the system, a water pressure differential may be created within the system as water is pumped into the filter canister under pressure but only trickles out through the clogged grids. This is not normally considered a dangerous occurrence, because water (unlike air) cannot be easily compressed and most filter systems can safely contain water pressure differentials without difficulty, although the ability of those systems to clean the water may become compromised.
Far more relevant to the instant case is the second condition, which may occur when the filtration system is turned completely off, causing the water to stop flowing and potentially permitting air to bleed into the system. In commercial pool systems, this condition rarely occurs because most commercial pools are left on continuously, except perhaps occasionally when being actively serviced. On the other hand, many residential pool systems are regularly turned on and off by homeowners (usually at night or during the winter months when the pool is rarely used) in order to save electricity. Indeed, testimony was presented that the majority of residential pool owners connect their pool filter systems to timers that automatically turn the
When the system is turned off and then turned back on, air that bled into the system while it was off is pushed into the canister by the flow of water. If the filter grids are clogged, the air may become trapped within the canister against the clog with nowhere to go. As more air and water continue to be pumped into the canister under pressure, air pressure may build up within the canister, creating a condition known in the industry as a dead-head. If the pressurized air cannot find a way to escape, the air pressure within the canister grows to dangerous levels as more air and water are forced into the system. When the air pressure within the canister exceeds the ability of the metal clamp to hold the canister together, the canister may explode.
To reduce the risk of such explosive dead-heads, the instruction manual accompanying the FNS filter "recommends" that the consumer manually bleed excess air from the system each and every time the system is turned off and on. However, when a pool filter is connected to a timer that automatically turns the system off at night and on during the day with no action by the homeowner, the recommendations contained in the instruction manual cannot be complied with, because an automated timer system will not manually bleed out air every time the filter is cycled back on.
Michaels contended that the known risks of explosion rendered the design of the Nautilus FNS filter inherently unsafe when used in normal operation. Pentair countered that the explosion in this case was caused not by any inherent flaw in the design of the system, but rather by an explosive dead-head created by Michaels himself through improper and unforeseeable misuse of the FNS canister. Specifically, Pentair averred that Michaels improperly installed the FNS filter canister onto an obsolete 27-year-old pool filter system that was never designed for the FNS canister and contained a device known as a positive shut-off valve that could be misused in a way that increased the risk of dead-heads and explosions.
In support of his theory, Michaels presented the testimony of Dr. John Manning, an expert in mechanical engineering, as well as Dr. Alison Osinski, an aquatics expert. Both generally testified that the phenomenon of pool filters exploding under pressure was known in the industry, that the design of the FNS filter was unsafe, and that safer alternatives existed, including models sold by Pentair that possessed automatic external pressure-relief valves and redundant restraints. Osinski testified that six different companies offered split-shell filter canisters for sale that had redundant restraints and automatic external pressure relief valves, and that explosions of split-shell filters having such safety features were virtually unknown. In contrast, Osinski noted that more than 50 such explosions were known to have occurred with split-shell filters sold without such features, many of which had caused serious trauma and even death to homeowners. The experts noted that Pentair sold a Sta-Rite System 3 split-shell filter with secondary restraints that Pentair advertised as "the world's safest and easiest to operate filter." The jury saw internal correspondence written by Pentair employees dated May 16, 1993, which recognized the danger of filter separation under pressure and noted that consumers could be expected to misuse split-shell pool filters in a way that could increase the risk of explosion.
Testimony from several of Pentair's employees confirmed key portions of Michaels' allegations. For example, Pentair's chief engineer, Ron Robol, testified that he believed the design of the FNS filter was safe. However, he agreed that the phenomenon of explosive dead-heads was known within the industry, and admitted that at various times Pentair had sold split-shell filter canisters equipped with automatic external pressure-relief valves designed to reduce the risk of explosion. He conceded that when Pentair
Similarly, Pentair's product manager of filtration, Robert Swindell, agreed through his deposition testimony that a consumer's failure to install the canister properly, to clamp it shut, and to release air pressure before or during cleaning were all "foreseeable" events. He acknowledged that Pentair's Sta-Rite 3 filtration system was safer than the FNS because it was held shut by eight individual clamps rather than a single clamp. Additionally, Pentair's Vice-President of Engineering, Garrett Burkitt, conceded at his deposition that Pentair was aware of claims of pool filter separations with its FNS canister, while Pentair employee Robert Wilkes admitted that safer alternatives to steel clamps existed, including a threaded screw-type ring lock system for which no known instances of explosive filter separation had ever been reported.
Pentair's defense focused upon the contention that the FNS filter canister was safe, partly because the explosion in this case was caused not by any inherent defect in the design of the FNS filter canister, but rather by Michaels' own unforeseeable, negligent, and dishonest actions. Specifically, Pentair contended that Michaels caused the explosion by dead-heading the system while improperly backwashing it, and then lied about how the explosion occurred. Pentair suggested that Michaels improperly grafted the FNS filter canister onto an older filter system that contained a positive shut-off valve that, when incorrectly used, would seal the canister and trap air within it, thereby artificially creating a dead-head when one otherwise would not have naturally occurred.
During trial, no witness called by either party affirmatively testified that Michaels had improperly used the positive shut-off valve to create an artificial dead-head within the system. Michaels explicitly denied doing so, and no witness identified any evidence suggesting such misuse. Instead, Pentair's implication that such misuse may have occurred rested upon two prongs. First, after the explosion but before trial, Michaels negligently disposed of parts of his pool filtration system, including the separation tank, the selector valve attached to the filter, the shut-off valves, and various pipes and plumbing. During the trial, Pentair requested, and the district court gave, an instruction that permitted the jury to make an inference adverse to Michaels based upon the failure to preserve the filter system for discovery and trial.
Second, Pentair made Michaels' credibility a major subject of the trial. Michaels testified that the canister exploded spontaneously
On cross-examination by Pentair, Michaels' experts agreed that their conclusion that Michaels' injury was caused by the defective design of the FNS filter was predicated upon Michaels' own description of how the explosion occurred, and if Michaels was proven to have lied, then their conclusions may no longer be valid. Pentair also argued that certain facts proven by Michaels' experts, while true, could be interpreted in different ways. For example, Pentair's statistical expert, Dr. Laurentius Marais, testified that while Pentair had received 50 reports of explosions in filter canisters lacking redundant safety features, those 50 claims must be considered in the context of the thousands of canisters sold nationally.
Thus, in lieu of evidence affirmatively demonstrating that Michaels had modified or misused the FNS filter canister in an unforeseeable way to cause the explosion, Pentair argued that inconsistencies in Michaels' evidence, coupled with the negligent disposal of parts of the filter system prior to trial, permitted the jury to infer that such a modification or misuse had occurred. Consequently, Pentair argued to the jury that Michaels failed to meet his burden of demonstrating by a preponderance of the evidence either that the design of the FNS filter was unsafe or that any design defect was the proximate cause of his injury.
On appeal, Michaels asserts various errors. However, because the trial court failed to properly analyze the claims of attorney misconduct made by Michaels in his post-trial motions under the standard set forth in Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008), we need only address that contention.
When the losing party in a civil trial alleges in a post-trial motion that it is entitled to a new trial because the prevailing party committed attorney misconduct during the trial, the Nevada Supreme Court has held that the district court must make detailed findings regarding the role that the alleged misconduct played at trial and the effect it likely had on the jury's verdict. Id. at 20, 174 P.3d at 982. See BMW v. Roth, 127 Nev. 122, 141 n. 9, 252 P.3d 649, 661 n. 9 (2011) (appellate consideration of alleged attorney misconduct that was not the subject of specific district court findings "would be contrary to Lioce's requirement of specific oral and written findings of misconduct to facilitate appellate review of orders granting or denying new trials based on attorney misconduct"). In this case, the district court did not make those findings. The portion of the district court's written order denying Michaels' request for relief due to attorney misconduct simply states that "[i]n considering plaintiff's allegations under Lioce v. Cohen... this Court does not find grounds warranting a new trial." The district court's written order contains no other findings relating to Michaels' claims of attorney misconduct.
Ordinarily, we could simply order a limited remand of this matter so that the district court can make the required findings. However, in reviewing the precedent of the Nevada Supreme Court, some of which is quite recent, we take this opportunity to provide guidance to the district court on the kinds of findings that must be made. Because the district court did not apply the reasoning of these more recent cases, and because Lioce itself does not set forth a specific list of what the district court's findings must include, we remand this matter to the district court to reconsider its conclusions in view of recent
A district court's decision to grant or deny a motion for a new trial is reviewed for an abuse of discretion.
An attorney may not "encourage[] the jurors to look beyond the law and the relevant facts in deciding the case before them." Lioce, 124 Nev. at 6, 174 P.3d at 973. "Under NRCP 59(a)(2), the district court may grant a new trial if the prevailing party committed misconduct that affected the aggrieved party's substantial rights." Gunderson v. D.R. Horton, Inc., 130 Nev. ___, ___, 319 P.3d 606, 611 (2014).
In Lioce, the Nevada Supreme Court articulated the applicable legal standards governing appellate review of a district court's denial of a motion for a new trial based on alleged attorney misconduct. See Lioce, 124 Nev. at 14-26, 174 P.3d at 978-86. Lioce required the district court to make post-trial findings on the effect of the misconduct upon the trial, but did not delineate the kinds of findings that are required. Id. In two recent cases, Gunderson v. D.R. Horton, Inc., 130 Nev. ___, 319 P.3d 606 (2014), and BMW v. Roth, 127 Nev. 122, 252 P.3d 649 (2011), the Nevada Supreme Court expanded upon its Lioce analysis and further explained how the district court, and appellate courts, should evaluate claims of misconduct. The district court in this case did not apply these new cases when it decided Michaels' motion, and so we take this opportunity to clarify the standard that must be followed in view of those cases.
Determining whether a new trial is warranted involves the application of a three-step analysis. First, we must determine whether misconduct occurred. Gunderson, 130 Nev. at ___, 319 P.3d at 611. Whether an attorney's comments constitute misconduct is a question of law reviewed on appeal de novo. BMW, 127 Nev. at 132, 252 P.3d at 656. If such misconduct has occurred, the next step is to determine the proper legal standard to apply in assessing whether the misconduct warrants a new trial. Gunderson, 130 Nev. at ___, 319 P.3d at 611. Finally, we must determine whether the district court abused its discretion in applying that standard. Id.
When a party claims misconduct by opposing counsel, the legal standard under which that misconduct is reviewed depends on whether a timely trial objection was made. See Lioce, 124 Nev. at 17-19, 174 P.3d at 980-82. When a timely objection was not made at trial, any review of that misconduct, either post-trial by the trial court or on appeal, is considerably more circumscribed than if an objection was made. When resolving a motion for a new trial based on unobjected-to attorney misconduct, "the district court shall first conclude that the failure to object is critical and the district court must treat the attorney misconduct issue as having been waived, unless plain error exists." Id. at 19, 174 P.3d at 982. To decide whether there is plain error, the district court must then determine "whether the complaining
Plain error requires a party to show "`that no other reasonable explanation for the verdict exists.'" Id. (quoting Ringle v. Bruton, 120 Nev. 82, 96, 86 P.3d 1032, 1041 (2004)). Analyzing whether such plain error has occurred involves weighing the misconduct against the reasonableness of the jury's verdict in light of the evidence in the record. Gunderson, 130 Nev. at ___, 319 P.3d at 614 ("In evaluating [the effect of misconduct on a verdict], we `look at the scope, nature, and quantity of misconduct as indicators of the verdict's reliability'" (quoting Grosjean, 125 Nev. at 365, 212 P.3d at 1079)). Moreover, the court must consider the "context" in which the misconduct occurred. Id.
Necessarily, then, a determination of whether unobjected-to misconduct has created plain error requires balancing the severity of the misconduct against the weight of the evidence supporting the jury's verdict. In doing so, however, we must bear in mind that "credibility determinations and the weighing of evidence are left to the trier of fact." See Grosjean, 125 Nev. at 366, 212 P.3d at 1080. Where the record demonstrates that the jury's verdict is strongly supported by overwhelming evidence, the verdict can generally be explained by the evidence itself and even serious misconduct may not warrant a new trial. On the other hand, where the evidence in the record is insufficient to reasonably explain the jury's verdict even when viewed in the light most favorable to the prevailing party, or if it does so only very weakly or implausibly, then trial misconduct is likely to have resulted in fundamental error, because in those circumstances the jury's verdict was more likely to have been a product of the misconduct rather than of a fair consideration of the evidence presented. Id. at 364, 212 P.3d at 1079 (attorney misconduct warrants new trial in "the rare occasion when the attorney misconduct `offsets the evidence adduced at trial in support of the verdict'" (quoting Lioce, 124 Nev. at 19, 174 P.3d at 982)).
Furthermore, the court must consider the "context" of the misconduct. Gunderson, 130 Nev. at ___, 319 P.3d at 614. Misconduct that was largely collateral to the principal issues in dispute is less likely to have resulted in plain error than misconduct that touched directly upon the central questions the jury was asked to resolve. By way of hypothetical example, Nevada Rule of Professional Conduct (RPC) 3.4(e) prohibits an attorney from stating "a personal opinion as to ... the credibility of a witness." See Lioce, 124 Nev. at 21-22, 174 P.3d at 983 ("[A]n attorney's statements of personal opinion as to the justness of a cause, the credibility of a witness, or the culpability of a litigant is ... improper in civil cases and may amount to prejudicial misconduct necessitating a new trial."). When an attorney improperly vouches for the credibility of an inconsequential witness whose testimony related to a collateral issue and whose credibility was never attacked by the opposing party, such misconduct likely played a lesser role in the jury's verdict than if the attorney vouched for a witness whose credibility was directly challenged and whose truthfulness regarding a key issue was the principal or sole question for the jury's consideration. Similarly, vouching for the credibility of a witness whose testimony was largely cumulative to other evidence or irrelevant to the main issues in genuine dispute is less likely, in context, to warrant a new trial than if the witness' testimony were the only evidence supporting a key contention.
Finally, the frequency of the misconduct must be considered. A single, isolated instance of misconduct is likely to have had a lesser impact on the trial than repeated or persistent instances of misconduct. See Gunderson, 130 Nev. at ___, 319 P.3d at 612 ("[T]he district court must take into account
Thus, determining whether "plain error" has occurred as a result of unobjected-to misconduct requires the court to closely examine the record, weigh the severity and persistence of the misconduct against the evidence presented, and assess what role, if any, the misconduct likely played in the jury's verdict. See BMW, 127 Nev. at 133, 252 P.3d at 656-57.
Because alleged attorney misconduct must be evaluated in "context," a brief examination of the substantive law that governed the trial is necessary. On appeal, the only claim remaining before us is the products liability claim, which is a strict liability claim. In Nevada, a manufacturer or distributor of a product is strictly liable for injuries resulting from a defect in the product that was present when the product left its hands. Allison v. Merck & Co., Inc., 110 Nev. 762, 767, 878 P.2d 948, 952 (1994). "[P]roducts are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function." Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413, 470 P.2d 135, 138 (1970) (internal quotations omitted). "Reasonableness" may be determined with reference to such things as whether a safer design was possible or feasible, whether safer alternatives are commercially available, and other factors. See McCourt v. J.C. Penney Co., Inc., 103 Nev. 101, 104, 734 P.2d 696, 698 (1987) (stating that "[a]lternative design is one factor for the jury to consider when evaluating whether a product is unreasonably dangerous").
Furthermore, manufacturers are not necessarily liable for injuries caused by a product that was substantially modified or misused by the consumer or by an intermediary. "Generally, a substantial alteration will shield a manufacturer from liability for injury that results from that alteration," but a product manufacturer remains liable if the alteration was insubstantial, foreseeable, or did not actually cause the injury.
When the risk of danger associated with a product is such that it cannot be corrected or mitigated by a commercially feasible change in the product's design available at the time the product was placed in the stream of commerce, the manufacturer must give adequate warning to consumers of the potential danger. See id. at 138, 808 P.2d at 524. Where a plaintiff alleges that such warnings were not adequately given, the "plaintiff carries the burden of proving, in part, that the inadequate warning caused his injuries." Rivera v. Philip Morris, Inc., 125 Nev. 185, 190, 209 P.3d 271, 274 (2009).
Michaels argues that, during closing argument, Pentair's counsel made various impermissible statements that were not based in evidence or that reflected the personal opinion of counsel. Michaels' counsel did not timely object to any of the statements now cited as error on appeal.
In Lioce, the Nevada Supreme Court directed district courts confronted with post-trial motions alleging attorney misconduct as follows:
124 Nev. at 19-20, 174 P.3d at 982. See also BMW, 127 Nev. at 141 n. 9, 252 P.3d at 661 n. 9.
Conceivably, in some cases in which a district court fails to make requisite findings in support of a decision, that decision may nonetheless be affirmed on appeal if the record as a whole demonstrates that the ultimate conclusion was correct even if the reasons for it are not clearly articulated. For example, if the most cursory review of the briefs or the record clearly demonstrates that no misconduct occurred as a matter of law, then a remand for the district court to simply state the obvious would seem wasteful and unnecessary. During oral argument, Pentair's counsel suggested that a remand in this case was unnecessary for precisely this reason. Had our review of the record in this case clearly indicated either that no misconduct occurred, or that any attorney misconduct that occurred could not possibly have affected the jury's verdict, then we could perhaps resolve this appeal based upon the record alone without the need for additional findings by the district court.
In this case, however, the record reveals that Pentair's attorney made a variety of statements during closing argument that could plausibly constitute the kind of attorney misconduct that concerned the Nevada Supreme Court in Lioce.
However, the record does not appear to indicate that any such plumbing expert was ever retained by Michaels; the district court did not make any findings on this question. Furthermore, even if a plumbing expert had been retained, counsel's invitation for the jury to apply the adverse inference instruction to Michaels' failure to call that witness is problematic because the adverse inference instruction was not given as a sanction for that conduct.
Consequently, we cannot conclude from the record that attorney misconduct was so clearly absent from the trial that additional findings by the district court would be superfluous and unnecessary.
In this case, had the district court engaged in a comprehensive analysis, it could have concluded that misconduct occurred and that the misconduct was both severe and repeated. See Gunderson, 130 Nev. at ___, 319 P.3d at 612. Furthermore, when viewed in context, the district court could have concluded that the misconduct played a critical role in the case. See id. at ___, 319 P.3d at 614 (instances of misconduct must be evaluated "as determined by their context"); see also Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 364, 212 P.3d 1068, 1079 (2009).
Accordingly, the record in this case is not so clear that detailed findings by the district court are clearly unnecessary. Furthermore, the district court's failure to engage in the exercise of making specific and detailed findings particularly matters when the district court acted without considering the Nevada Supreme Court's reasoning in BMW and without the benefit of Gunderson.
On remand, the district court must clarify, at a minimum, whether it found that no misconduct occurred or rather whether it concluded that misconduct did occur but was harmless under the standards of Lioce in view of: (1) the nature of the claims and defenses asserted by the parties; (2) the relative strength of the evidence presented by the parties; (3) the facts and evidence that were either disputed or not substantively disputed during the trial; (4) the type, severity, and scope of any attorney misconduct; (5) whether any misconduct was isolated and incidental on the one hand or repeated and persistent on the other; (6) the context in which any misconduct occurred; (7) the relationship of any misconduct to the parties' evidence and arguments; and (8) any other relevant considerations.
For the foregoing reasons, we vacate the district court's denial of Michaels' motion for new trial and remand this matter to the district court for further proceedings consistent with this opinion.
I concur: GIBBONS, C.J.
SILVER, J., concurring:
I concur in the result only. In my view, the majority decision prematurely highlights portions of the alleged misconduct during closing argument and unnecessarily comments on the strength of the evidence presented at trial. Yet, the majority also acknowledges that the district court seemingly did not have the benefit of transcripts when it considered the new trial motion due to the timing involved in such post-trial motions, and that it did not have the benefit of authority and guidance from the supreme court's decision in Gunderson v. D.R. Horton, Inc., 130 Nev. ___, 319 P.3d 606 (2014). The majority further notes that, in denying the new trial motion, the district court did not consider the supreme court's reasoning in BMW v. Roth, 127 Nev. 122, 252 P.3d 649 (2011). No further instruction or analysis is required for this court to resolve this appeal. Therefore, a limited remand in this matter directing the district court to make detailed findings regarding specific instances of alleged misconduct would have sufficed. Respectfully, I concur with only the result reached by the majority.
