                                                       132 Nev,, Advance Opinion (1
                             IN THE SUPREME COURT OF THE STATE OF NEVADA

                      JENNY RISH,                                         No. 58504
                      Appellant,
                      vs.
                      WILLIAM JAY SIMAO AND CHERYL
                                                                                   FILED
                      ANN SIMAO, INDIVIDUALLY AND AS                                  MAR 1 7 2016
                      HUSBAND AND WIFE,
                      Respondents.                                                               al
                                                                                     T < F‘IU AVEM
                                                                                BCYLEF!.1.            R

                                                                                   CHIEF DEPLOHCLERK-

                      JENNY RISH,                                         No. 59208
                      Appellant,
                      vs.
                      WILLIAM JAY SIMAO AND CHERYL
                      ANN SIMAO, INDIVIDUALLY AND AS
                      HUSBAND AND WIFE,
                      Respondents.

                      JENNY RISH,                                         No. 59423
                      Appellant,
                      vs.
                      WILLIAM JAY SIMAO AND CHERYL
                      ANN SIMAO, INDIVIDUALLY AND AS
                      HUSBAND AND WIFE,
                      Respondents.



                                 Consolidated appeals from a district court judgment in a tort
                      action and from post-judgment orders denying a new trial and awarding
                      attorney fees. Eighth Judicial District Court, Clark County; Jessie
                      Elizabeth Walsh, Judge.
                                 Reversed, vacated, and remanded.


                      Lewis Roca Rothgerber Christie, LLP, and Daniel F. Polsenberg and Joel
                      D. Henriod, Las Vegas; Rogers, Mastrangelo, Carvalho & Mitchell, Ltd.,
                      and Stephen H. Rogers, Las Vegas,
                      for Appellant.
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                 David T. Wall, Las Vegas; Eglet Prince and Robert T. Eglet and Robert M.
                 Adams, Las Vegas,
                 for Respondents.




                 BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.


                                                 OPINION
                 By the Court, HARDESTY, J.:
                             Respondents William Jay Simao and Cheryl Ann Simao
                 (Simao) filed a motion in limine to preclude appellant Jenny Rish from
                 presenting a low-impact defense in a personal injury case arising out of an
                 automobile accident. Simao claimed our holding in Hallmark v. Eldridge,
                 124 Nev. 492, 500-02, 189 P.3d 646, 651-53 (2008), required the exclusion
                 of low-impact evidence because Rish failed to retain a biomechanical
                 expert to opine on the nature of the accident. In Hallmark, we held that a
                 biomechanical engineer's testimony regarding whether the forces involved
                 in a car accident could have caused the plaintiffs injury was without
                 sufficient foundation to be admissible under NRS 50.275. 124 Nev. at 500-
                 02, 189 P.3d at 651-53. Because Hallmark held that a biomechanical
                 expert's testimony must have sufficient foundation to be admissible under
                 NRS 50.275, not that a biomechanical expert's testimony must underlie all
                 evidence of the alleged injury-causing accident, we conclude that the
                 district court's order granting the motion in limine was in error as a
                 matter of law.
                             Following eight alleged violations of the district court's
                 pretrial order prohibiting a low-impact defense and violations of two

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                 additional pretrial orders, the district court struck Rish's answer as a
                 sanction. Because the case-ending sanction order failed to satisfy the
                 requirements of BMW v. Roth,       127 Nev. 122, 126, 252 P.3d 649, 652
                 (2011), we reverse and remand this matter for a new trial.
                                  FACTS AND PROCEDURAL HISTORY
                             Rish and William Simao were involved in a car accident in
                 which Rish rear-ended William Simao in stop-and-go traffic. The damage
                 to the vehicles was not extensive. While an ambulance was called, both
                 Rish and William Simao refused medical treatment at the scene. William
                 Simao later alleged that the accident injured his head and neck, causing
                 him constant pain and requiring on-going medical treatment and
                 procedures. Simao brought suit against Rish to recover damages for
                 William's injuries and Cheryl's loss of consortium.
                             Before trial, Simao filed a motion in limine asking the district
                 court to preclude Rish, her attorneys, her medical expert, Dr. David Fish,
                 and her witnesses from testifying, arguing, or insinuating that the
                 collision was too insignificant to have caused William Simao's injuries.
                 Citing to Hallmark, 124 Nev. at 496-97, 189 P.3d at 649, Choat v.
                 McDorman, 86 Nev. 332, 335, 468 P.2d 354, 356 (1970), and Levine v.
                 Remolif, 80 Nev. 168, 171-72, 390 P.2d 718, 719-20 (1964), Simao asserted
                 that any argument or evidence of a low-impact accident should be barred
                 because Rish had not retained a biomechanical engineer who could first
                 testify that the forces imparted by the collision were too insignificant to
                 cause the injury. On this basis, Simao also argued that photographs of the
                 vehicles and repair invoices should likewise be excluded as irrelevant
                 because, without supporting expert testimony, there was no reliable



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                correlation between the extent of damage and the extent of injury, citing
                Hallmark, NRS 50.275, and Davis v. Maute, 770 A.2d 36, 40 (Del. 2001).
                               Rish opposed the motion, arguing that physicians have always
                been permitted to consider the severity of the accident when formulating
                opinions and to opine on whether the force could have caused the injury.
                She further argued that none of the cases relied upon by Simao prohibit
                the defense from describing the accident as low impact, and that evidence
                of property damage was relevant, admissible, and not substantially
                prejudicial.
                               At the motion hearing, the district court found the extent of
                property damage to be relevant but nevertheless granted Simao's motion
                in its entirety because, "pursuant to the Hallmark case," Rish did not have
                "a witness who can lay the proper foundation" for Rish to advance a low-
                impact defense. Finding the result was required by Hallmark, the district
                court granted Simao's requests to prohibit Rish "from Raising a 'Minor' or
                tow Impact' Defense," and to prohibit Dr. Fish and other experts from
                "opin[ing] regarding biomechanics or the nature of the impact of the
                subject crash." The court further prohibited photographs of the parties'
                cars and property damage invoices.
                               Before and during the trial, Rish's trial counsel sought
                clarification of the district court's order in limine, voicing concerns that
                the order prevented the defense from offering any testimony showing the
                nature of the accident. The district court, stating that its order was clear,
                declined to clarify the order. During the trial, the court sustained eight
                objections by Simao to Rish's questions and evidence as violating the low-
                impact defense pretrial order.



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                             During opening statements, and without objection from
                 Simao, Rish's trial counsel described the accident by saying that Rish "was
                 stopped behind [William Simao], who moved a few feet in front of her.
                 [Rish] applied her brakes, only just not quite hard enough; and the
                 accident follow [ed]." Rish's trial counsel also stated that no one in the
                 accident claimed loss of consciousness, everyone refused help from the
                 paramedics, and Rish drove away from the scene. Rish's trial counsel then
                 attempted to play a portion of Rish's videotaped deposition. Simao
                 objected. The district court's order indicated that the objection was
                 sustained on hearsay grounds and because it contained testimony
                 concerning "the nature of the accident."
                             Rish's trial counsel cross-examined three of Simao's physician
                 experts. During cross-examination of the first doctor, Rish's trial counsel
                 asked if he "kn[ew] anything about what happened to Jenny Rish and her
                 passengers in this accident." Simao objected on relevancy grounds and
                 referenced the low-impact defense pretrial order. The district court
                 sustained the objection without comment from Rish.
                             Rish's trial counsel asked the second doctor if he "kn[e]w
                 anything about the folks in Jenny Rish's car." Simao objected on
                 relevancy grounds. A bench conference was held where Rish's trial
                 counsel asked if the irrelevancy of his question had been addressed in a
                 previous order. Simao briefly referenced the low-impact defense pretrial
                 order, and the district court sustained the objection.
                             Finally, Rish's trial counsel asked the third doctor: "bdou
                 know [William Simao] wasn't transported by ambulance?" After the
                 doctor replied in the affirmative, Rish asked: "You know that Jenny
                 Rish . . . was lifted from the scene." Simao objected and asked that Rish's

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                trial counsel be admonished for disregarding the low-impact defense
                pretrial order. The objection was sustained, and the jury was told to
                disregard the question. Simao later sought to make a record, outside the
                presence of the jury, as to Rish's trial counsel's violation. The district
                court indicated that it would consider a progressive sanction and
                suggested that Rish's trial counsel reread the order.
                            During Simao's cross-examination of Dr. Fish, Dr. Fish
                attempted to distinguish a case where he had causally related a patient's
                injury to her accident by stating, "Well, in this very significant accident,
                yes." Simao moved to strike most of the doctor's response, and the court
                instructed the jury to disregard all but the word "yes." On redirect of Dr.
                Fish, Rish's trial counsel asked how he reached the opinion that the
                accident did not cause William Simao's injuries. Dr. Fish stated that it
                was "based on multiple factors. It's based on the actual—looking at the
                images of the MRI. . It's looking at the notes that were taken of the
                events that happened and it's knowing about the accident itself." Simao
                objected and moved to strike, and the district court told the jury to
                disregard Dr. Fish's last phrase. Another exchange followed outside the
                presence of the jury, and Simao asked the court to give a presumption
                instruction to the jury as a sanction. The court ultimately instructed the
                jury that "there is an irrebuttable presumption that the motor vehicle
                accident of April 15, 2005 was sufficient to cause the type of injuries
                sustained by the Plaintiff. Whether it proximately caused those injuries
                remains a question for the jury to determine."
                            Finally, during cross-examination of William Simao, Rish's
                trial counsel asked if the traffic was stop-and-go. Simao asked for a bench
                conference, and the district court precluded the question because it

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                improperly suggested that the impact was minor Rish's trial counsel then
                asked William Simao whether the paramedics had transported anyone
                from Rish's car. Simao objected, asked for a bench conference, and moved
                to strike Rish's answer. The district court granted the motion, entered a
                default judgment against Rish, and dismissed the jury.
                            Thereafter, the district court held a prove-up hearing, at
                which it limited each party to a short argument regarding damages and
                awarded William Simao $194,390.96 for past medical expenses;
                $1,378,209 for past pain, suffering, and loss of enjoyment of life; and
                $1,140,552 for future pain, suffering, and loss of enjoyment of life. It also
                awarded $681,286 to Cheryl Simao for loss of consortium and attorney fees
                in the amount of $1,078,125. In all, the awards against Rish totaled
                nearly $4.5 million.' This appeal followed.
                                               DISCUSSION
                            On appeal, Rish primarily challenges the validity of the
                district court's final sanction of striking her answer and entering a default
                judgment against her. The threshold question is whether the pretrial
                order precluding the testimony and evidence of a low-impact defense was
                erroneous as a matter of law. We hold that it was. We also hold that the
                district court erred by striking Rish's answer, and we reverse the district
                court's judgment and order a new trial.


                      'Because we are reversing this matter for a new trial, we do not
                address the procedure used by the district court to determine damages
                pursuant to Foster v. Dingwall, 126 Nev. 56, 68, 227 P.3d 1042, 1050
                (2010) ("[T]he nonoffending party[ has an] obligation to present sufficient
                evidence to establish a prima facie case, which includes substantial
                evidence that the damages sought are consistent with the claims for which
                the nonoffending party seeks compensation.").


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                The district court erred in extending Hallmark to preclude all argument of
                a low-impact defense
                            Trial courts have broad discretion in determining whether to
                admit evidence and may exclude relevant evidence that is substantially
                more unfairly prejudicial than probative. NRS 48.035(1); S. Pac. Transp.
                Co. v. Fitzgerald, 94 Nev. 241, 243, 577 P.2d 1234, 1235 (1978). When the
                district court abuses its discretion in determining whether to admit or
                exclude evidence, this court will overturn the district court's
                determination. Land Res. Dev. v. Kaiser Aetna, 100 Nev. 29, 34, 676 P.2d
                235, 238 (1984).
                            During the proceedings below, Simao argued that Hallmark
                precludes all testimony, evidence, argument, and insinuation of a low-
                impact defense unless the party offering it first provides a foundation for
                this defense through expert testimony from a qualified biomechanical
                engineer. The district court agreed and imputed the reasoning from
                Hallmark to bar any evidence of a minor or low-impact defense.
                            We held in Hallmark that the district court abused its
                discretion in allowing an expert witness, who was both a physician and
                mechanical engineer, to testify that an accident was too low impact to
                have caused the plaintiffs injuries. 124 Nev. at 502, 189 P.3d at 652.
                Although we determined that the witness was qualified to testify as an
                expert, we concluded that the expert did not have an adequate factual or
                scientific basis for his opinions regarding the nature of the accident after
                he acknowledged that he failed to review critical information when he
                formed his opinion. Id. at 497, 504, 189 P.3d at 649, 654. Rather, the
                expert's opinion was based more on supposition than science and did not
                qualify as admissible expert testimony under NRS 50.275 because
                biomechanics was not a recognized field of expertise, the testimony had
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                                                  OPLT5-710
                  not been and could not be tested, and the expert's theories and methods
                  had not been subjected to peer review. Id. at 500-02, 189 P.3d at 651-53.
                  While noting that biomechanical testimony was not necessarily precluded
                  in every case, we determined that the expert's testimony in that case was
                  without a sufficient foundation to be admitted. Id. at 504, 189 P.3d at 654.
                  Thus, Hallmark focused specifically on the admissibility of expert
                  testimony.
                               Nothing in Hallmark mandates that supporting testimony
                  from a certified biomechanical engineer or other expert must be offered
                  before a defendant will be allowed to present a low-impact defense. 2
                  Rather, Hallmark stands for the well-established proposition that expert
                  testimony, biomechanical or otherwise, must have a sufficient foundation
                  before it may be admitted into evidence. Id. at 503-04, 189 P.3d at 653-54;
                  see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993);
                  City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir.), cert.
                  denied U .S. , 135 S. Ct. 870(2014); Howard Entm't, Inc. v. Kudrow,
                  146 Cal. Rptr. 3d 154, 170 (Ct. App. 2012). In the absence of a specific
                  issue concerning the speed or the nature of the impact, mandating


                        2 Inarguing below that a low-impact defense requires supporting
                  testimony from a qualified biomechanical engineer, Simao also cited to
                  Choat v. McDorman, 86 Nev. 332, 335, 468 P.2d 354, 356 (1970), and
                  Levine v. Remolif, 80 Nev. 168, 171-72, 390 P.2d 718, 719-20 (1964).
                  Neither of those cases creates such a rule. Rather, in both of those cases,
                  we held that an expert may not testify to the specific speed of the vehicles
                  at the time of a collision absent a sufficient foundation for that
                  determination. Choat, 86 Nev. at 335, 468 P.2d at 356; Levine, 80 Nev. at
                  171-72, 390 P.2d at 719-20. Moreover, as neither case addressed whether
                  medical doctors may opine on injury causation, they are inapplicable to
                  the issue before this court.


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                  supporting expert testimony as a prerequisite to advancing a general low-
                  impact defense would effectively and impermissibly deprive juries of
                  hearing any testimony regarding the nature and circumstances of the
                  accident and any resulting injuries unless an expert first describes the
                  accident to the jury. 3 See Banks v. Sunrise Hosp., 120 Nev. 822, 838, 102
                  P.3d 52, 63 (2004) (noting that it is for the jury to determine the credibility
                  of and the weight to be given to testimony where evidence presented on a
                  material point may be conflicting or facts could support differing
                  inferences). Nothing in Hallmark mandates such a requirement, and we
                  have previously determined that causation issues, including the
                  circumstances and severity of an accident and whether it proximately
                  caused the alleged injuries, are factual issues that are proper for a jury to
                  weigh and determine. See Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d
                  258, 260 (1981) (holding that whether a collision proximately caused
                  respondent's injuries were factual issues for the jury to resolve); Fox v.
                  Cusick, 91 Nev. 218, 221, 533 P.2d 466, 468 (1975) (concluding that it is
                  "for the jury to weigh the evidence and assess the credibility" of the
                  witnesses); Barreth v. Reno Bus Lines, Inc., 77 Nev. 196, 198, 360 P.2d
                  1037, 1038 (1961) (the jury decides questions of proximate cause). The
                  district court therefore abused its discretion in prohibiting Rish from
                  presenting or eliciting any evidence and testimony regarding the nature
                  and circumstances of the accident, as well as the injuries suffered by Rish
                  and her passengers. See AA Primo Builders, LLC v. Washington,         126 Nev.


                        3 Generally,  once a plaintiff presents testimony regarding the nature
                  of the impact in a vehicle collision case, the defense may present evidence
                  to rebut the plaintiff's assertions. See Provence v. Cunningham, 95 Nev. 4,
                  7-8, 588 P.2d 1020, 1021-22 (1979).

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                578, 589, 245 P.3d 1190, 1197 (2010) ("While review for abuse of discretion
                is ordinarily deferential, deference is not owed to legal error."); see also
                Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) ("A district
                court would necessarily abuse its discretion if it based its ruling on an
                erroneous view of the law or on a clearly erroneous assessment of the
                evidence."), superseded by rule on other grounds, Fed. R. Civ. P. 11.
                            As to whether a medical doctor may relate the nature and
                severity of the impact to the injuries, we note that courts in other
                jurisdictions have allowed such testimony. See, e.g., Mattek v. White, 695
                So. 2d 942, 943 (Fla. Dist. Ct. App. 1997) (holding that defendant's expert
                in accident reconstruction and biomechanical engineering, who was not a
                medical doctor, was not qualified to opine on the extent of plaintiffs
                injury); Santos v. Nicolos,    879 N.Y.S.2d 701, 704 (Sup. Ct. 2009)
                (explaining that biomechanical engineer was not qualified to testify about
                the causal relationship between an accident and the injuries of the
                plaintiff because he was not a medical doctor); Streight v. Conroy, 566 P.2d
                1198, 1200 (Or. 1977) (refusing to assign error where the trial court
                allowed expert medical witnesses to testify as to whether the impact could
                have caused plaintiffs wife's back problems after viewing photographs of
                the accident because the jury could review the evidence and "give such
                weight to the experts' testimony as they saw fit"); Wilson v. Rivers, 593
                S.E.2d 603, 605 (S.C. 2004) (stating that medical doctor "was qualified to
                render an opinion on the forces created by an impact and on the general
                effects on the human body caused by such forces and,. . . an opinion
                regarding the cause of respondent's particular medical problems"); John v.
                Im, 559 S.E.2d 694, 697 (Va. 2002) ("[S]ince [the expert] was not a medical
                doctor, he was not qualified to state an expert medical opinion regarding

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                 the cause of [the] injury."). And in Hallmark, this court suggested that
                 had the defense expert, who was also a medical doctor, physically
                 examined the plaintiff or reviewed her medical history, the defense may
                 have been able to lay a proper foundation to allow the expert to testify as
                 to causation. 124 Nev. at 504, 189 P.3d at 654.
                               Based on this analysis, we conclude that a medical doctor may
                 offer an opinion regarding causation so long as there is a sufficient
                 foundation for the conclusion. We do not intend by this opinion to suggest
                 that low-impact collisions cannot result in serious injuries. Low-impact
                 collisions can cause serious, as well as minor, injuries, but, as noted above,
                 the nature of the impact is a factor for the trier of fact to consider in
                 determining the causation of the injuries that form the basis of the claim.
                 In this case, Dr. Fish examined William Simao's medical records, the MRI
                 images, and photographs of the damage to the parties' vehicles, and
                 therefore had a sufficient basis to offer an opinion on whether the accident
                 caused William Simao's injuries. 4


                       4 The district court also excluded from evidence all photographs of
                 the vehicles and invoices for the repair work on the basis that such
                 evidence was substantially prejudicial and that Hallmark required
                 supporting testimony from a biomechanical engineer in order to be
                 admissible. During arguments, Fish withdrew any objection to the district
                 court's ruling, and therefore, we do not decide whether the district court
                 erred in either applying Hallmark to bar the admission of the photographs
                 and invoices. However, we note that other jurisdictions generally admit
                 such evidence because, even in the absence of supporting expert
                 testimony, there is a common-sense correlation between the nature of the
                 impact and the severity of the injuries, and a plaintiff may overcome any
                 prejudicial effect by offering contradicting testimony, cross-examining the
                 witnesses, and utilizing other mechanisms to prove his or her case. See
                 Johnson v. McRee, 152 P.2d 526, 527-28 (Cal. Ct. App. 1944); Martin v.
                 Miqueu, 98 P.2d 816, 818 (Cal. Ct. App. 194W; Hayes v. Sutton, 190 A.2d
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                The district court erred in striking the answer
                            We now turn to the validity of the sanction, which we review
                under a somewhat heightened standard of review. See Foster v. Dingwall,
                126 Nev. 56, 65, 227 P.3d 1042, 1048 (2010) ("[A] somewhat heightened
                standard of review applies where the sanction strikes the pleadings,
                resulting in dismissal with prejudice."). A party is required to follow court
                orders, even erroneous ones, until overturned or terminated.        Walker v.
                City of Birmingham, 388 U.S. 307, 320-21 (1967) (holding that order
                violating civil rights should have nevertheless been followed until
                overturned); see also Howat v. Kansas, 258 U.S. 181, 190 (1922) ("It is for
                the court of first instance to determine the question of the validity of the
                law, and until its decision is reversed for error by orderly review, either by
                itself or by a higher court, its orders based on its decision are to be
                respected, and disobedience of them is contempt of its lawful authority, to
                be punished."). Even if the order is later overruled, a sanction predicated
                on violations of that order may remain in force.     See Beauregard, Inc. v.
                Sword Services LLC, 107 F.3d 351, 354 (5th Cir. 1997).
                            Here, the district court imposed a case-ending sanction by
                striking Rish's answer, entering a default, and conducting a prove-up
                hearing. Following argument on Simao's motion to strike Rish's answer,
                the district court entered a written order analyzing the factors in Young v.


                ...continued
                655, 656 (D.C. 1963); Cancio v. White, 697 N.E.2d 749, 756 (Ill. App. Ct.
                1998); Mason v. Lynch, 878 A.2d 588, 601 (Md. 2005); Brenman v.
                Demello, 921 A.2d 1110, 1118 (N.J. 2007); Gambrell v. Zengel, 265 A.2d
                823, 824-25 (N.J. Super. Ct. App. Div. 1970); Accetta v. Provencal, 962
                A.2d 56, 61-62 (R.I. 2009); Murray v. Mossman, 329 P.2d 1089, 1091
                (Wash. 1958).

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                  Johnny Ribeiro Building, Inc., 106 Nev. 88, 93, 787 P.2d 777, 780 (1990),
                  and finding that Rish's trial counsel's conduct violated the low-impact
                  defense pretrial order. The order concluded that counsel engaged in
                  misconduct by violating the low-impact defense pretrial order on eight
                  occasions during trial: one incident involved a videotaped deposition that
                  Rish's trial counsel attempted to play during opening statements, four
                  incidents involved questions Rish's trial counsel posed to William Simao
                  and his experts concerning what happened to Rish and her passengers
                  following the accident, one incident involved Rish's trial counsel asking
                  William Simao if there was stop-and-go traffic prior to the accident, and
                  two incidents involved Dr. Fish's answers during cross-examination and
                  redirect.°



                         °The district court's oral order imposing case-ending sanctions was
                  "primarily" based on Rish's trial counsel's violations of the low-impact
                  defense pretrial order, but its written order also makes reference to three
                  additional violations of two separate pretrial orders. The parties did not
                  raise, and we do not analyze, the question of whether these two additional
                  pretrial orders and their corresponding violations violate BMW, 127 Nev.
                  122, 126, 252 P.3d 649, 652 (2011). Based on our disposition, we resolve
                  them briefly here.

                        First, during opening statement, Rish's trial counsel referred to an
                  unrelated motorcycle accident involving William Simao, which was barred
                  by a pretrial order. Second, Rish's trial counsel stated during opening
                  statement that doctors were going to testify and that some of them appear
                  regularly in court, and later Rish's trial counsel asked Dr. McNulty on
                  cross-examination whether he had testified around 100 times. Simao
                  objected to this question, and the district court sustained the objection.
                  These violations were allegedly barred by a pretrial order excluding any
                  attempt to present an "attorney driven' or a 'medical-buildup' case."

                        Neither of these alleged medical-build up violations appear to
                  actually fall within the pretrial order. In fact, the opening statement and
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                              In BMW v. Roth, 127 Nev. 122, 126, 252 P.3d 649, 652 (2011),
                 we held "[for violation of an order in limine to constitute attorney
                 misconduct requiring a new trial, the order must be specific, the violation
                 must be clear, and unfair prejudice must be shown." Although the
                 sanction requested in BMW differs from the sanction requested here,
                 BMW's analysis is applicable because it addresses the larger issue of
                 attorney misconduct.   See also Foster, 126 Nev. at 66, 227 P.3d at 1049
                 (discussing whether "the court's decision to strike defendants' pleadings
                 and enter default was just, related to the claims at issue in the violated
                 discovery order, and supported by a careful written analysis of the
                 pertinent factors").



                 ...continued
                 cross-examination question are relevant to credibility. See Delaware v.
                 Van Arsdall, 475 U.S. 673, 678-79 (1986) ("[T]he exposure of a witness
                 motivation in testifying is a proper and important function of the
                 constitutionally protected right of cross-examination." (internal quotation
                 marks omitted)); Robinson v. G.G.C., Inc., 107 Nev. 135, 143, 808 P.2d
                 522, 527 (1991) ("Expert witness testimony is, in some respects, akin to a
                 business arrangement between the witness, the hiring attorney and the
                 client. The trier of fact has the right to take business associations into
                 account when determining the credibility of witnesses and the weight to
                 give their testimony."). Additionally, they do not implicate "medical build-
                 up." "Medical buildup" concerns a party "seekfing] necessary but costly
                 medical treatment, that they would otherwise forego" in order to generate
                 a larger award. Nora Freeman Engstrom, Sunlight and Settlement Mills,
                 86 N.Y.U. L. Rev. 805, 834 (2011); see also Bruce A. Hagen, Karen K.
                 Koehler & Michael D. Freeman, 2 Litigating Minor Impact Soft Tissue
                 Cases § 36:12 (2015) (explaining that a motion seeking to preclude a
                 defendant from referring to a case as a "medical buildup" or "attorney-
                 driven" case "seeks to preclude any evidence or statement implying that
                 medical treatment was sought as a result of litigation—or at the
                 suggestion of Plaintiffs attorneys").

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                                 Specificity of the order
                                       The low-impact defense pretrial order "preclude [d] [Rishl from
                           Raising a 'Minor' or tow Impact' Defense," but it gives no further
                           guidance except to specifically preclude Dr. Fish and other witnesses from
                           testifying, arguing, or insinuating that the collision was too insignificant
                           to have caused William Simao's injuries. Rish's trial counsel expressed his
                           confusion with the order on numerous occasions, but the district court
                           refused to clarify what it would and would not allow.
                                       A low-impact defense is defined as "describ[ing] [an] incident
                           as 'low impact' in order "to liken the incident to common, everyday
                           experiences." Roxanne Barton Conlin & Gregory S. Cusimano, Litigating
                           Tort Cases § 53:22 (2014). The district court appears to broadly construe
                           the term low-impact defense to include the facts before, during, and after
                           the accident.
                                       However, Rish, without objection, was permitted to describe
                           the accident in her opening statement, stating that "she was stopped
                           behind [William Simad who moved a few feet in front of her. . . ; [Rish]
                           applied her brakes, only just not quite hard enough; and the accident
                           followled]." Thereafter, Simao objected to questions concerning the nature
                           of the accident, including questions posed by Rish's trial counsel
                           concerning traffic conditions and what Rish did following the accident.
                           These objections were all sustained. This inconsistent application of the
                           low-impact defense pretrial order leads to our conclusion that the order
                           prohibiting the low-impact defense lacks specificity.




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                      Clarity of the violations
                             Two of the violations of the low-impact defense pretrial order
                were statements made by Dr. Fish. Dr. Fish's implied comment that the
                accident was not significant was made during Simao's cross-examination,
                and his statement that William Simao's injuries were based, in part, on
                knowledge of the accident was made during redirect. Nothing in the
                record or the district court's order shows that Fish's trial counsel
                prompted or caused Dr. Fish to testify in violation of the low-impact
                defense pretrial order.
                             The other instances of attorney misconduct regard the same
                basic questions posed by Rish's trial counsel: whether the witness knew
                what happened to Fish as a result of the accident and whether there was
                stop-and-go traffic before the accident. While these instances might be
                construed to violate the low-impact defense pretrial order, none of them
                describe the accident itself. We conclude that there is no clear violation,
                let alone misconduct, of the low-impact defense pretrial order caused by
                these questions.
                      Unfair prejudice
                             Even if we were to find clear misconduct, there was no unfair
                prejudice to Simao. The district court found that "no lesser sanction had
                been successful in precluding future violations." But, the district court's
                order fails to explain why. Under this prong, the district court is required
                to find that a violation is so extreme that it cannot be eliminated through
                an objection and admonition. Lioce v. Cohen, 124 Nev. 1, 17, 174 P.3d 970,



                      6 We note that the district court never described how the alleged
                instances of misconduct violated the pretrial orders.

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                981 (2008). The district court failed to meet this requirement because it
                did not articulate why the various admonitions and, ultimately, the
                irrebuttable presumption instruction were inadequate to address the
                alleged misconduct.
                            Even if an irrebuttable presumption instruction was justified,
                the instruction itself was confusing. The jury was first instructed that the
                accident in this case was sufficient to cause William Simao's injuries.
                However, the jury was then instructed that it was to determine whether
                the accident proximately caused William's injuries. But given the first
                part of the instruction, it is unclear how Rish could show or the jury would
                decide whether the accident caused William's injuries. Also, the district
                court did not explain the difference between causation and proximate
                causation, so the jury would not have been able to effectively understand
                or utilize the instruction. Further, regardless of its confusion, the
                instruction was more than sufficient to remedy any misconduct that
                occurred up to that point in the trial.
                            While it is true that two more alleged violations of the low-
                impact defenseS pretrial order occurred before the district court struck
                Rish's answer, the district court struck both questions posed by Rish's trial
                counsel and William Simao did not answer either. The district court did
                not explain how these two alleged violations raised the aggregate
                misconduct to a level warranting the ultimate case-ending sanction.
                            Because we• conclude that any misconduct by Rish's trial
                counsel did not rise to the level requiring the case-ending sanctions
                imposed by the district court under BMW, 127 Nev. at 126, 252 P.3d at
                652, we vacate the order striking Rish's answer.



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                                Accordingly, for the reasons set forth above, we reverse the
                 district court's judgment and post-judgment order denying a new tria1, 7
                 and we remand this matter to the district court for a new trial consistent
                 with this opinion. 8



                                                                       xer.AtA.-\         J.
                                                          Hardesty


                 We concur:


                                                     J.




                       7 We  decline to assign this case to a different judge because the
                 district court's rulings do not suggest bias. See Millen v. Eighth Judicial
                 Dist. Court, 122 Nev. 1245, 1254-55, 148 P.3d 694, 701 (2006)
                 ("[D]isqualification for personal bias requires an extreme showing of bias
                 that would permit manipulation of the court and significantly impede the
                 judicial process and the administration of justice." (internal quotation
                 marks and alteration omitted)).

                       8 In   light of this opinion, the attorney fees order is also vacated.


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