COVID-19 Lays Bare the Cruelty of Neoliberalism

JOSEPH MARGULIES

Cornell law professor Joseph Margulies observes how the COVID-19 pandemic is exposing the cruel folly of neoliberal governance. Margulies points out that neoliberalism—the idea that social problems are better solved by the private sector than by government—has brought millions of Americans to the edge of financial and physical ruin, and COVID-19 will push them over. He argues that now more than ever, we must be communitarians rather than individualists.

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Jones v. U.S. Bank National Ass'n

Citation: 136 Nev. Adv. Op. No. 16

Opinion Date: April 2, 2020

Judge: Stiglich

Areas of Law: Banking, Real Estate & Property Law

The Supreme Court affirmed the decision of the district court granting summary judgment in favor of U.S. Bank seeking to foreclose on a defaulted loan, holding that because U.S. Bank presented evidence to meet its burden to show that the original note was lost, it was entitled to enforce the note because the facts established that the action may proceed. U.S. Bank acquired the deed of trust secured by Appellant's residence and sought to foreclose on the defaulted loan. The original lender did not execute an assignment of the note to U.S. Bank when assigning the deed of trust to U.S. Bank. The loan servicer, however, swore an affidavit certifying that the note was lost. The district court granted summary judgment in favor of U.S. Bank. The Supreme Court affirmed, holding that because U.S. Bank showed by a preponderance of the evidence that it acquired ownership of the note from a party that had the right to enforce it, that the note was not lost as a result of a transfer or lawful seizure, and that the note could not be reasonably obtained, U.S. Bank satisfied the requirements of Nev. Rev. Stat. 104.3309 and was entitled to seek a judicial foreclosure on Appellant's default.

145 East Harmon II Trust v. Residences at MGM Grand

Citation: 136 Nev. Adv. Op. No. 14

Opinion Date: April 2, 2020

Judge: Silver

Areas of Law: Civil Procedure, Real Estate & Property Law

The Supreme Court held that a voluntary dismissal with prejudice generally conveys "prevailing party" status upon the defendant for purposes of an award of attorney fees and costs under Nev. Rev. Stat. 18.010(2) and Nev. Rev. Stat. 18.020, but district courts should consider the circumstances surrounding the voluntary dismissal with prejudice in determining whether the dismissal conveys prevailing party status. The Residences at MGM Grand - Tower A Owners' Association (the Association) was sued after it was discovered that a unit at The Signature at MGM Grand had mold damage. The Association requested dismissal from the case because it was not a proper party to the action. Eventually, the parties stipulated to dismiss the Association from the case with prejudice. Thereafter, the Association moved for attorney fees and costs. The Trust argued that the Association could not be considered a prevailing party because the case had not proceeded to judgment. The district court concluded that the Association was the prevailing party and awarded attorney fees and costs. The Supreme Court affirmed, holding that under the facts of this case, the dismissal with prejudice was substantively a judgment on the merits, and therefore, the Association was a prevailing party for purposes of sections 18.010(2) and 18.020.

Las Vegas Metropolitan Police Department v. Center for Investigative Reporting, Inc.

Citation: 136 Nev. Adv. Op. No. 15

Opinion Date: April 2, 2020

Judge: Silver

Areas of Law: Communications Law, Criminal Law

The Supreme Court affirmed the judgment of the district court concluding that Respondent was entitled to reasonable attorney fees and costs under Nev. Rev. Stat. 239.011(2), holding that the requesting party prevails for purposes of an award of attorney fees and costs when the parties reach an agreement that affords the requesting party access to the requested records before the court enters a judgment on the merits. Plaintiff submitted a public records request to Las Vegas Metropolitan Police Department (LVMPD) under the Nevada Public Records Act (NPRA) seeking records related to a murder. When LVMPD did not respond to the request to Plaintiff's satisfaction, Plaintiff filed a petition for a writ of mandamus seeking to inspect of obtain copies of all records related to the murder within LVMPD's custody and control. Before an evidentiary hearing, the parties reached an agreement regarding the production of the records. The district court awarded attorney fees to Plaintiff. On appeal, LVMPD argued that Plaintiff did not prevail for purposes of section 239.011(2) because the district court did not enter an order compelling production of the records. The Supreme Court affirmed after adopting and applying the catalyst theory, holding that Plaintiff was entitled to reasonable attorney fees and costs.

Cummings v. Barber

Citation: 136 Nev. Adv. Op. No. 18

Opinion Date: April 2, 2020

Judge: Cadish

Areas of Law: Medical Malpractice

In this medical malpractice case, the Supreme Court held that although Nev. Rev. Stat. 41A.100(1) generally applies only to objects left in a patient's body during the at-issue surgery, it can also apply in cases where, as in the instant case, the sole purpose of the at-issue surgery is to remove medical devices and related hardware implanted during a previous surgery. Plaintiff brought a medical malpractice case alleging that Defendants breached the professional standard of care by overlooking or unintentionally leaving surgical clips in her body following a 2014 surgery. Relying on section 41A.100(1), Plaintiff did not attach a medical expert affidavit to her complaint. Defendant moved for summary judgment, arguing that she intentionally left the surgical clips in Plaintiff's stomach following the at-issue surgery because removal would be too risky. The district court granted summary judgment, concluding that section 41A.100(1)(a) did not apply and, therefore, Plaintiff was required to present an expert affidavit to establish negligence. The Supreme Court reversed, holding that Defendant did not conclusively negate the statutory presumption of negligence and that Plaintiff was not required to provide expert testimony to survive summary judgment.

Jaramillo v. Ramos

Citation: 136 Nev. Adv. Op. No. 17

Opinion Date: April 2, 2020

Judge: Cadish

Areas of Law: Medical Malpractice

The Supreme Court held that a plaintiff relying on Nev. Rev. Stat. 41A.100's rebuttable presumption for a prima facie case of negligence need not provide expert testimony to survive a defendant's summary judgment motion but, rather, must only establish the facts that entitle her to the statute's rebuttable presumption of negligence. Plaintiff, special administrator to the estate of Maria Jaramillo, sued Defendant for medical malpractice under section 41A.100(1), asserting that Defendant breached the professional standard of care by unintentionally leaving a wire in Jaramillo's left breast. Relying on section 41A.100(1)(a), Plaintiff did not attach a medical expert affidavit. The district court granted summary judgment for Defendant, concluding that Defendant rebutted the presumption of negligence by providing expert testimony about the standard of care, and that, in the absence of contrary expert testimony from Plaintiff, it was uncontroverted that the unintentional leaving of a wire fragment in Jaramillo's body was not a result of negligence. The Supreme Court reversed, holding (1) the expert declaration Defendant presented supporting her summary judgment did not conclusively negate the statutory presumption of negligence but merely created a material factual dispute for trial on the issue of negligence; and (2) a genuine issue of material fact existed on the issue of negligence.