                              IN THE SUPREME COURT OF THE STATE OF NEVADA


                      DARRELL K. SPILSBURY, D.D.S.,                           No. 64368
                      Appellant,
                      vs.
                      CARRIE RYNDERS,
                                                                                    FILED
                      Respondent.                                                   JAN 2 2 2016
                                                                                   TRACE K UNDEMANI
                                              ORDER OF AFFIRMANCE               CLERK OF SUPREME COURT
                                                                               BY
                                                                                    DEPUTY CLERK

                                  This is an appeal from a district court judgment on a jury
                      verdict in a dental malpractice action and from post-judgment orders
                      retaxing costs and denying judgment as a matter of law or a new trial.
                      Eighth Judicial District Court, Clark County; Gloria Sturman, Judge.
                                  Respondent Carrie Rynders brought a dental malpractice
                      action against appellant Darrell K. Spilsbury, D.D.S., an orthodontist
                      practicing in Las Vegas, for injuries she sustained during the course of
                      orthodontia treatment performed by Dr. Spilsbury. The jury found that
                      Dr. Spilsbury was 85 percent at fault for Rydners' injuries and awarded
                      her $474,880.11 in damages and costs. After the district court partially
                      granted Dr. Spilsbury's post-trial motion to retax costs, an amended
                      judgment was entered in the amount of $472,380.11.
                                  On appeal, Dr. Spilsbury argues that he is entitled to
                      judgment as a matter of law, or alternatively, a new trial because Rynders'
                      expert witness, orthodontist Kamal Al-Fakiani, D.D.S., was not qualified
                      to establish the standard of care in this case and• that the district court's




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                 rejection of his proposed "mere happening" jury instruction was an abuse
                 of discretion.' We do not agree.
                 Dr. Al-Fakiani was qualified to be an expert witness
                             To establish malpractice, "a plaintiff must present expert
                 medical testimony." Staccato v. Valley Hosp., 123 Nev. 526, 530, 170 P.3d
                 503, 506 (2007). We "review[ ] a district court's decision to allow expert
                 testimony for abuse of discretion."     Hallmark v. Eldridge, 124 Nev. 492,
                 498, 189 P.3d 646, 650 (2008).
                             Dental malpractice is defined as "failure on the part of a
                 dentist to exercise the degree of care, diligence and skill ordinarily
                 exercised by dentists in good standing in the community in which he or
                 she practices." NRS 631.075. To determine whether an expert is
                 qualified, we consider "whether (1) the subject matter is distinctly related
                 to some scientific field or profession beyond the average person's
                 knowledge; and (2) the witness has sufficient skill, knowledge, or
                 experience in the area at issue so that the opinion will aid the jury."
                 Staccato, 123 Nev. at 533, 170 P.3d at 507; see also NRS 50.275.
                             There is no doubt that the field of orthodontics is beyond the
                 average person's knowledge. It is also evident from the record that Dr. Al-
                 Fakiani has "sufficient skill, knowledge, or experience" in general
                 orthodontics to qualify as an expert.       Staccato, 123 Nev. at 533, 170 P.3d

                            Spilsbury also appears to appeal from the district court's order
                 granting in part and denying in part his motion to retax costs. However,
                 Dr. Spilsbury fails to address this issue in his briefs, and we therefore do
                 not consider it. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330
                 n.38, 130 P.3d 1280, 1288 n.38 (2006) (stating that issues not cogently
                 argued or supported by relevant authority need not be considered).



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                at 507. Dr. Al-Fakiani graduated from dental school, passed the dental
                boards, completed orthodontic training, and taught orthodontics for a
                number of years. He is also part of a private orthodontic practice where he
                sees an average of 400 patients a week.
                            Dr. Spilsbury argues that because Dr. Al-Fakiani did not
                possess the skill, knowledge, and experience on the orthodontic procedure
                at issue in this case, he should not have been allowed to testify that Dr.
                Spilsbury breached the applicable standard of care. 2 This case involves
                lingual braces using an iBrace system, meaning that the brackets and
                wires were placed on the back of Rynders' teeth, and Dr. Al-Fakiani
                specializes in the Invisalign system of orthodontics. Dr. Spilsbury argues
                that this makes Dr. Al-Fakiani unqualified to render an opinion on lingual
                braces. However, as the district court found and we agree, the treatment
                at issue involved more than just the application of the iBraces.
                            Dr. Al-Fakiani opined on three major issues regarding Dr.
                Spilsbury's treatment: (1) whether Rynders' gums were of sufficient health
                to withstand the treatment, (2) whether extraction of some of Rynders'
                teeth prior to treatment was required, and (3) whether sufficient oral
                hygiene instructions were given by Dr. Spilsbury and his staff. Dr. Al-
                Fakiani's opinions were not specific to lingual braces, but rather, went
                toward whether Dr. Spilsbury exercised due care in his general
                orthodontic practices. Accordingly, we conclude that Dr. Al-Fakiani
                possessed the requisite "skill, knowledge, or experience in the area at
                issue," Staccato, 123 Nev. at 533, 170 P.3d at 507, and the district court


                     2 Dr. Spilsbury objected at district court to Dr. Al-Fakiani being an
                expert witness, but the court overruled the objection.

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                   did not abuse its discretion by allowing Dr. Al-Fakiani to provide expert
                   testimony. 3
                    The district court's denial of Dr. Spilsbury's request for a "mere happening"
                   jury instruction was not an abuse of discretion or judicial error
                                  "[T]he district court has broad discretion to settle jury
                   instructions." Skender v. Brunsonbuilt Constr. & Dev. Co., LLC, 122 Nev.
                   1430, 1435, 148 P.3d 710, 714 (2006) (internal quotations omitted). "A
                   district court's decision to give or decline a proposed jury instruction is
                   reviewed for an abuse of discretion or judicial error."      Atkinson v. MGM
                   Grand Hotel, Inc., 120 Nev. 639, 642, 98 P.3d 678, 680 (2004). "An abuse
                   of discretion occurs if the district court's decision is arbitrary or capricious
                   or if it exceeds the bounds of law or reason."     Skender, 122 Nev. at 1435,
                   148 P.3d at 714 (internal quotations omitted).
                                  Rynders' husband testified that he attended his wife's last
                   appointment with Dr. Spilsbury during which Dr. Spilsbury admitted that
                   he was at fault. Dr. Spilsbury testified that at one point he did offer to
                   complete Rynders' treatment at no cost and to reimburse Rynders for the
                   cost of her orthodontic treatment with him. As a result, Dr. Spilsbury
                   proposed a mere happening jury instruction under Gunlock v. New
                   Frontier Hotel Corp., 78 Nev. 182, 185, 370, P.2d 682, 684 (1962),
                   abrogated on other grounds by Foster v. Costco Wholesale Corp., 128 Nev.,

                         3 Dr.Spilsbury further argues that under NRS 41A.100(1), Dr. Al-
                   Fakiani was required to show "a foundation from his study of the
                   literature, communications with colleagues, or other study of the
                   procedure" in order to testify as an expert witness. We disagree.
                   Pursuant to NRS 41A.100(1), evidence can consist "of expert medical
                   testimony, material from recognized medical texts or treatises or the
                   regulations of the licensed medical facility wherein the alleged negligence
                   occurred." (Emphasis added.) Thus, this argument is without merit.

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                   Adv. Op. 71, 291 P.3d 150 (2012), to limit the impact of these statements.
                   The mere happening instruction states that "[t]he mere fact that there
                   was an accident or other event and someone was injured is not of itself
                   sufficient to predicate liability. Negligence is never presumed but must be
                   established by substantial evidence." 4 Id. The district court denied Dr.
                   Sp ilsbury's request.
                                Given the district court's "broad discretion to settle jury
                   instructions," we conclude that the denial of the mere happening
                   instruction was not arbitrary or capricious. 5 Skender, 122 Nev. at 1435,
                   148 P.3d at 714. Even if we were to conclude that the district court erred
                   by rejecting Dr. Spilsbury's proposed instruction, reversal is not
                   warranted as the error was not prejudicial.   See Cook v. Sunrise Hosp. &
                   Med. Ctr., LLC, 124 Nev. 997, 1005, 194 P.3d 1214, 1219 (2008). To
                   establish prejudicial error, the complaining party must demonstrate "that
                   the error substantially affected the party's rights. That standard is met
                   when the complaining party provides sufficient-record evidence showing
                   that, but for the error, a different result might have been reached." Id. at
                   1007, 194 P.3d at 1220 (footnote omitted). Other than pointing to the fact



                         4Dr. Spilsbury's proposed instruction used the term "competent
                   evidence" rather than "substantial evidence," but was otherwise identical.

                         5 1n denying the mere happening instruction, the district court cited
                   to a lack of clarity and an evolution in our recent general negligence
                   caselaw, see Egan v. Chambers, 129 Nev., Adv. Op. 25, 299 P.3d 364
                   (2013); Foster, 128 Nev., Adv. Op. 71, 291 P.3d 150, which called into
                   question the validity of the instruction. Because we conclude that the
                   district court did not abuse its discretion by rejecting the proposed
                   instruction, we do not reach the question of whether the mere happening
                   instruction is still good law in Nevada.

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                  that the jury found him only 85 percent at fault, Dr. Spilsbury points to no
                  other "sufficient-record evidence" to show that but for the exclusion of the
                  mere happening instruction, the jury may have reached a different result.
                              Accordingly, we conclude that the district court did not err in
                  denying Dr. Spilsbury's motion for judgment as a matter of law or a new
                  trial, and we
                              ORDER the judgment of the district court AFFIRMED.




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                      cc: Hon. Gloria Sturman, District Judge
                           Lansford W. Levitt, Settlement Judge
                           Law Offices of Alfred F. Belcuore
                           Carroll, Kelly, Trotter, Franzen, McKenna & Peabody
                           Blut Law Group, APC
                           Eighth District Court Clerk




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