[00:00:00] Speaker 02:
Good morning.

[00:00:01] Speaker 02:
Christian Morris on behalf of Lila McGee.

[00:00:03] Speaker 02:
I'd like to reserve five minutes for my rebuttal.

[00:00:07] Speaker 02:
We're here today because a verdict came in that was contrary to the clear weight of the evidence that was presented at trial.

[00:00:16] Speaker 02:
The issue is, is can a proven, kind of what was referred to ancillary issue, be dismissed because more significant issues, such as back pain and need for treatment there, were not proven?

[00:00:29] Speaker 01:
I understood the court below to be focusing on the fact that while there was discussion of both the shin injury and the back injuries, the more serious injuries, there was no evidence to quantify what the shin injury would be in terms of value.

[00:00:46] Speaker 01:
Is that wrong?

[00:00:47] Speaker 02:
That is not wrong.

[00:00:49] Speaker 02:
It is a matter of, did we parcel out?

[00:00:51] Speaker 02:
Sure, this is what the shin injury is worth.

[00:00:54] Speaker 02:
This is what the back is worth.

[00:00:55] Speaker 02:
Generally, that is not done when you're talking about the damages.

[00:00:58] Speaker 02:
There's just simply one line on the verdict form for the amount of the medical expenses, one line.

[00:01:04] Speaker 01:
Well, sure, except for, that's true.

[00:01:06] Speaker 01:
There's going to be one line on the verdict form, but the evidence presented to the decision maker here, the jury, would give them some basis to understand

[00:01:15] Speaker 01:
that if they're in a position where they, you know, if you have more than one injury, they accept that one injury is valid and recoverable, but others aren't.

[00:01:24] Speaker 01:
They have a basis of evidence to quantify the thing that they're accepting and distinguish it from the things that they are not accepting.

[00:01:31] Speaker 01:
So here, I don't understand, looking at this record, I don't see what was presented by the plaintiffs at trial for the jury to understand the value of the shin injury.

[00:01:41] Speaker 02:
So the value of the shin injury was presented through evidence.

[00:01:45] Speaker 02:
First of all, it was a central part of the discussion of the case in my opening statement, talking about the fact that she had been hit into this large end guard that was sharp.

[00:01:55] Speaker 02:
There was a gash.

[00:01:56] Speaker 02:
There was gushing blood, not only on the top of this end guard, but also around the end guard there was blood.

[00:02:03] Speaker 02:
The employees her husband turned around saw her, said that there was no doubt what had caused her fall.

[00:02:09] Speaker 02:
Employees came over.

[00:02:10] Speaker 02:
bandaged her up, cleaned the blood up, she made her statement, they wrote it down in an incident report, she left Target in a scooter, she went to the emergency room where she had treatment where both our expert and the defendant's expert admit that at that point her main cause of her complaints was this pain to her lower extremity in which they took an x-ray and she got treatment for it.

[00:02:35] Speaker 02:
That was the evidence that was presented at trial.

[00:02:38] Speaker 01:
Okay, all of that evidence that you've just described, I give you, describes injury.

[00:02:41] Speaker 01:
Right.

[00:02:41] Speaker 01:
The fact that an injury occurred.

[00:02:43] Speaker 02:
Yes.

[00:02:43] Speaker 01:
What about that evidence tells the jury how much to award for that injury if they believe that target is responsible for it?

[00:02:50] Speaker 02:
So the jury is of the purview to award whatever amount that they believe to be fit for that injury, which is not zero, where the clear weight of the evidence is that she was injured.

[00:03:01] Speaker 01:
So then can I, reading between the lines of the answer that you just gave me,

[00:03:04] Speaker 01:
There is no evidence in front of the jury in terms of a dollar amount.

[00:03:07] Speaker 01:
For example, a hospital bill where they can see a line item of treatment for the shin, it costs $150.

[00:03:12] Speaker 01:
There's nothing like that for the jury.

[00:03:15] Speaker 02:
The treatment for going to the hospital was obviously confirmed by the doctors who testified that she did go to the emergency room.

[00:03:24] Speaker 02:
She went to Mountain View.

[00:03:26] Speaker 02:
The amount of the medical bills, I believe, were like $5,000.

[00:03:30] Speaker 02:
But you're right in saying this, in closing argument,

[00:03:33] Speaker 02:
was it said, this is what you need to award for her leg.

[00:03:37] Speaker 02:
This is what you need to award for her back.

[00:03:40] Speaker 02:
It was not parceled out like that.

[00:03:42] Speaker 02:
There's no requirement, however, that it be parceled out like that.

[00:03:46] Speaker 02:
It is to say this is the value of the case.

[00:03:49] Speaker 02:
The issue in what happened here in this verdict is that there was clear evidence that she was objectively injured.

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there was no argument that something else objectively injured her.

[00:04:03] Speaker 02:
And the good case that addresses that is the Gutierrez case, where a vending machine fell on the boy.

[00:04:09] Speaker 02:
And he had obvious injuries.

[00:04:11] Speaker 02:
There was an allegation that there was brain injury.

[00:04:13] Speaker 02:
And in that case, it wasn't parceled out either.

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This is what it should have been for simply the objective.

[00:04:20] Speaker 02:
The jury came to a decision that they found only that to be related.

[00:04:24] Speaker 02:
But in that case, you have to look at what the jury was presented.

[00:04:28] Speaker 02:
For them to come to a zero verdict, they would have to have evidence that she wasn't hurt, which was not provided by the defense.

[00:04:37] Speaker 02:
There wasn't a dispute that she was injured.

[00:04:39] Speaker 02:
There wasn't a dispute to say that this end cap didn't cause the injury.

[00:04:44] Speaker 00:
Hold on.

[00:04:44] Speaker 00:
On that point, it seems like the verdict form says there was negligence but not causation.

[00:04:49] Speaker 00:
So does that finding not extend to the shin also?

[00:04:52] Speaker 02:
So that's the issue with it, because the clear weight of the evidence provided by both sides is that sure, she hurt her shin.

[00:05:01] Speaker 02:
Sure, she got bandaged.

[00:05:03] Speaker 02:
Sure, she went to the ER.

[00:05:05] Speaker 02:
That was what was presented.

[00:05:06] Speaker 02:
So for the jury to come back and say there was no damages is where the verdict is opposite from the clear weight of the evidence that was presented to them.

[00:05:16] Speaker 02:
The Cox case is a case that I'm confident the defense will rely on heavily.

[00:05:20] Speaker 02:
In that case, they found that the MGM and Copperfield were negligent because there was a code violation with the ramp.

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But in that case, it wasn't that, well, the code violation and the ramp didn't cause it.

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They argued that, in fact, at a separate location, not on the ramp, 15 feet away, that's where the plaintiff fell.

[00:05:45] Speaker 02:
So the ramp had nothing to do with it, which is opposite from the evidence here in this case, where even the judge admitted, yeah, that's probably what caused her fall.

[00:05:55] Speaker 02:
But there's no evidence to say that it wasn't, because even the store clerks, when they came over, saw the blood.

[00:06:02] Speaker 02:
Both of them put their foot into the end cap area.

[00:06:06] Speaker 02:
So what happens is Target changes out their end cap displays.

[00:06:10] Speaker 02:
And Leela was shopping those displays.

[00:06:12] Speaker 02:
but they failed to move the end cap guard that protects the display to be flush with it.

[00:06:17] Speaker 02:
And so they even measured it with their foot to say, oh yeah, that's what happened.

[00:06:21] Speaker 02:
There was no dispute that she fell, that there was blood on the end cap guard, that there was blood around it, that she needed to be bandaged, and she had that injury.

[00:06:31] Speaker 00:
So we're reviewing a jury verdict, so some deference is owed to the jurors.

[00:06:37] Speaker 02:
Absolutely.

[00:06:37] Speaker 00:
And they have a verdict form that

[00:06:40] Speaker 00:
you know, checks yes on negligence and no on causation, so we're left with that.

[00:06:44] Speaker 00:
I mean, a question here is whether they, you know, obviously your client was injured in the store, there's no dispute about that, but the video doesn't really show what happened, and nobody seems to have seen it happen, and so we have her testimony about what she says happened.

[00:07:01] Speaker 00:
but they may have not believed your client's account of it and concluded that she fell on her own or through some pre-existing condition or otherwise that was not necessarily caused by the poorly placed end cap.

[00:07:15] Speaker 00:
And so given all that, what basis do we have to kind of second guess that?

[00:07:19] Speaker 02:
Absolutely.

[00:07:21] Speaker 02:
So in this case, the angle of the video does not show the actual fall because it's kind of angled down so you can't see the floor.

[00:07:29] Speaker 02:
That would be direct evidence.

[00:07:31] Speaker 02:
But direct evidence holds the same weight as circumstantial evidence.

[00:07:36] Speaker 02:
And in this case, Leela actually testified, I didn't know what I fell on until I looked up and saw the end guard and all of the blood.

[00:07:44] Speaker 02:
It wasn't her only that said this is what caused my fall.

[00:07:49] Speaker 02:
It was her husband turning around, seeing the blood on the end cap.

[00:07:52] Speaker 00:
But he didn't see her actually fall, right?

[00:07:54] Speaker 02:
He did not.

[00:07:54] Speaker 02:
But again, we have to go back to circumstantial evidence, and this is in many cases we have to rely on circumstantial evidence.

[00:08:00] Speaker 02:
Even though we have a video here that doesn't show the actual fall, you have documentation from the store workers who came over, who not only saw the blood on the end cap, saw the blood around it, measured it to be like, oh yeah, that's what happened.

[00:08:14] Speaker 02:
I mean, that is the testimony that they provided on the stand to the jury.

[00:08:18] Speaker 00:
The argument you're making sounds like one that could have been credited, but the question then is, is it one that the jury had to credit?

[00:08:29] Speaker 02:
Well, that's where it's the greater weight, because other than that, what your speculations are is, was it a pre-existing that caused her to fall?

[00:08:36] Speaker 02:
Was it something else?

[00:08:37] Speaker 02:
If there was any evidence presented to the jury of that, then we could be talking about it.

[00:08:43] Speaker 02:
But there was no evidence, and so that's where you have to look at where the greater weight of the evidence was, that she was injured as a result.

[00:08:52] Speaker 02:
Of course, not to the extent of the other claimed injuries.

[00:08:57] Speaker 02:
But there's nothing in Nevada law that says a lesser injury cannot be considered simply because the greater injuries were not proven to get the biggest verdict.

[00:09:06] Speaker 02:
And so that's where we sit in this case.

[00:09:08] Speaker 02:
Because yes, it wasn't seen, but every single piece of circumstantial evidence.

[00:09:15] Speaker 02:
Why would her blood be on the end cap?

[00:09:17] Speaker 02:
Why would it be surrounding the end cap?

[00:09:19] Speaker 02:
Why would the employees come there seeing her laying around, measuring it with their foot, if that wasn't what the circumstantial evidence proved?

[00:09:27] Speaker 02:
If there were blood in another area, if they had alleged she had some sort of episode of syncope and she had passed out, none of that occurred.

[00:09:37] Speaker 02:
And so for it to say, well, you know, this is the only person who said it happened this way is not true.

[00:09:42] Speaker 02:
In fact, all of the evidence surrounding it, not only the actual evidence of the blood, but the employees who came over who obviously don't have any kind of weight to say, oh, yeah, well, we thought it was, you know, we had no reason to believe it.

[00:09:56] Speaker 02:
They wrote it down in the incident report that the cause, what was the cause of it, they wrote,

[00:10:01] Speaker 02:
The NCAP guard was too far from the display case.

[00:10:05] Speaker 02:
I mean, they wrote it down in their incident report.

[00:10:07] Speaker 02:
And so there wasn't any other reason for the jury to speculate.

[00:10:12] Speaker 02:
If they had wanted to prove it, like in the Cox case, they would have alleged a separate location.

[00:10:16] Speaker 02:
They would have said there's something else that caused it.

[00:10:18] Speaker 02:
And so for them to say, well, it wasn't caught on video.

[00:10:21] Speaker 02:
So that's not going to prove the case is not how Nevada law works circumstantial evidence is Significant evidence it holds the same weight as direct which is why this verdict should be reversed and allowed to look at the evidence and the witnesses that talked about