                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                DAVID HENRY FRANCE,                                      No. 64616
                Appellant,
                vs.
                GARRIT BRAKKEE, INDIVIDUALLY,
                                                                                FILED
                Respondent.                                                     APR 0 4 2016
                                                                              TRP,CLE K LINDEMAN
                                         ORDER OF AFFIRMANCE               CLERK OF SUPREME COURT
                                                                           BY   G•Y
                                                                                       4-)CTI
                                                                                 DEPU(3.
                                                                                       -      I
                                                                                            _ERK
                            This is an appeal from a district court judgment and denial of
                a motion for a new trial in a personal injury action. Eighth Judicial
                District Court, Clark County; Rob Bare, Judge.
                            Appellant David France and respondent Garrit Brakkee were
                involved in a car accident in December 2005 in which France was injured.
                France later applied for social security disability benefits and was
                examined by Dr. Jerrold Sherman to determine the degree of his
                disability. France's application was denied and he received no benefits.
                            France initiated an action in tort against Brakkee t At trial,
                Brakkee disputed the length of time that France suffered pain, the
                necessity of future medical care, and the medical recommendation of a
                future surgical procedure. Brakkee moved to introduce France's social
                security disability application and the accompanying medical report into
                evidence. The district court granted Brakkee's motion, with an order that
                the documents be redacted to remove any mention of social security
                benefits.
                            The jury awarded France $275,000 for past medical expenses
                and $90,000 for past pain and suffering, but made no award for future
                medical expenses or for future pain and suffering. France moved for
                additur or, in the alternative, a new trial, which the district court denied.

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                             In this appeal, France argues the district court erred by
                denying his motion for additur or, in the alternative, a new trial as to
                damages. France contends (1) that he is entitled to a new trial for various
                errors under NRCP 59(a), and (2) that the jury award was clearly
                inadequate. We conclude that the district court did not abuse its
                discretion in denying France's motion for a new trial under NRCP 59(a)
                and in determining the jury award was adequate.
                The district court did not err by denying France's motion for a new trial
                under NRCP 59(a)
                             France argues the district court erred by denying his motion
                for a new trial under NRCP 59(a). We disagree.
                             A new trial may be granted pursuant to NRCP 59(a) where an
                aggrieved party's substantial rights have been materially affected by any
                of the following;
                             (1) Irregularity in the proceedings of the court,
                                 jury, master, or adverse party, or any order of
                                 the court or master, or abuse of discretion by
                                 which either party was prevented from having
                                 a fair trial;
                             (2) Misconduct of the jury or prevailing party;
                             (3) Accident or surprise which ordinary prudence
                                 could not have guarded against; . . .
                             (5) Manifest disregard by the jury of the
                               instructions of the court; . . or,
                             (7) Error in law occurring at the trial and objected
                                to by the party making the motion.
                NRCP 59(a).
                             "The decision to grant or deny a motion for new trial rests
                within the sound discretion of the trial court and will not be disturbed on
                appeal absent palpable abuse."    S. Pac. Transp. Co. v. Fitzgerald, 94 Nev.
                241, 244, 577 P.2d 1234, 1236 (1978). "While review for abuse of
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                   discretion is ordinarily deferential, deference is not owed to legal error."
                   Bayerische Motoren Werke Aktiengesellschaft v. Roth,      127 Nev. 122, 133,
                   252 P.3d 649, 657 (2011) (quoting AA Primo Builders v. Washington, 126
                   Nev. 578, 589, 245 P.3d 1190, 1197 (2010)); see 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."). The district court did not
                   abuse its discretion in denying the motion for a new trial.
                         The district court did not err in concluding that the length of trial
                         and the alleged juror misconduct did not warrant a new trial under
                         NRCP 59(a)
                               France argues the district court erred in denying his motion
                   for a new trial because the length of trial and alleged juror misconduct
                   warrant a new trial under NRCP 59(a). We disagree.
                               The district court was only permitted to consider juror
                   Runyon's affidavit to the extent that it recounted what physically occurred
                   during deliberations, not how any of the evidence admitted at trial
                   affected the jurors' mental processes, or the effect that any misconduct had
                   upon the jurors.   Pappas v. State ex rel. Dep't of Transp., 104 Nev. 572,
                   575, 763 P.2d 348, 349 (1988) ("[W]hile juror affidavits may properly be
                   admitted to show what physically transpired in the jury room, they are
                   inadmissible for proving the jurors' mental processes or the effects of
                   alleged misconduct upon jurors."). Runyon's claims regarding what jurors
                   said or believed concerning collateral sources, how the foreperson's
                   conduct affected other jurors, and how the length of trial affected the
                   juror's mental processes cannot be considered. Thus, the district court
                   acted within its discretion in determining that the alleged juror



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                misconduct and the length of trial did not amount to an irregularity in the
                proceedings sufficient to justify a new trial under NRCP 59.
                      The district court did not abuse its discretion by admitting Dr.
                      Sherman's report
                             France argues the district court erred by not granting a new
                trial under NRCP 59(a) based on the admission of Dr. Sherman's report.
                We disagree.
                             A district court's decision to admit hearsay evidence will not
                be disturbed on appeal absent an abuse of discretion.    Fields v. State, 125
                Nev. 785, 795, 220 P.3d 709, 716 (2009). Here, Dr. Sherman's report is
                admissible hearsay under NRS 51.135 as a record or report created in the
                course of a regularly conducted activity. Accordingly, the district court
                acted within its discretion in determining that the report did not
                constitute an error sufficient to warrant a new trial under NRCP 59.
                      The district court did not abuse its discretion by admitting Dr.
                      Brandner's testimony
                             France argues the district court erred by admitting Dr.
                Patrick Brandner's testimony. We disagree.
                             "The admissibility of expert testimony, as well as of the
                qualifications of the expert, lies within the sound discretion of the trial
                court."   Childers v. State, 100 Nev. 280, 283, 680 P.2d 598, 600 (1984).
                "The district court has 'wide discretion' to determine the admissibility of
                expert testimony on a 'case-by-case basis." Brant v. State, 130 Nev., Adv.
                Op. 97, 340 P.3d 576, 579 (2014) (quoting Higgs v. State, 126 Nev. 1, 18,
                222 P.3d 648, 659 (2010)). Here, it was reasonable for the district court to
                conclude that Dr. Brandner was qualified to provide expert testimony with
                regard to the field of spinal injuries and the diagnosis of spinal injuries
                based on radiological scans. Accordingly, the district court acted within its

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                 discretion in determining Dr. Brandner's testimony did not constitute a
                 surprise or error sufficient to warrant a new trial under NRCP 59.
                 France is estopped from challenging the admissibility of Dr. Sherman's
                 report and the social security benefits application
                             France argues that the district court erred by admitting Dr.
                 Sherman's report and the social security benefits application into evidence
                 because it allowed the jury to consider collateral source evidence. In
                 general, this court has adopted a per se rule barring the admission of
                 evidence of collateral source payments. Proctor v. Castelletti, 112 Nev. 88,
                 90-91, 911 P.2d 853, 854 (1996) ("[N]o matter how probative the evidence
                 of a collateral source may be, it will never overcome the substantially
                 prejudicial danger of the evidence."). However, "a party will not be heard
                 to complain on appeal of errors which he himself induced or provoked the
                 court or the opposite party to commit [lit is sufficient that the party
                 who on appeal complains of the error has contributed to it."         Pearson v.

                 Pearson, 110 Nev. 293, 297, 871 P.2d 343, 345 (1994) (quoting 5 Am. Jur.
                 2d Appeal and Error § 713 (1962)); see also Taylor v. State, 109 Nev. 849,
                 856-57, 858 P.2d 843, 848 (1993) (Shearing, J., concurring in part and
                 dissenting in part) (stating that the invited error doctrine "establish[es]
                 that ordinarily inadmissible evidence may be rendered admissible when
                 the complaining party is the party who first broached the issue").
                             Here, Brakkee moved to have France's application for social
                 security benefits and the accompanying report admitted into evidence.
                 The district court granted Brakkee's motion and ordered the report and
                 application be redacted such that the jury would not be informed that it
                 was an application for social security benefits. However, France disclosed
                 the nature of the application to the jury on the first day of trial. As such,
                 the doctrines of invited error and estoppel preclude France from
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                challenging the admissibility of Dr. Sherman's report and France's
                application on these grounds.     Topaz Mut. Co. v. Marsh, 108 Nev. 845,
                853, 839 P.2d 606, 611 (1992) ("Equitable estoppel functions to prevent the
                assertion of legal rights that in equity and good conscience should not be
                available due to a party's conduct.").
                The district court did not err in denying France's motion for additur
                            France argues the district court erred in denying his motion
                for additur because the jury award was inadequate. We disagree.
                            "The [district] court is afforded great discretion in deciding
                motions for additur."   Donaldson v. Anderson, 109 Nev. 1039, 1041, 862
                P.2d 1204, 1206 (1993). "Such. . . decision[s] will remain undisturbed
                absent an abuse of that discretion." Id.; see also Lee v. Ball, 121 Nev. 391,
                394, 116 P.3d 64, 66 (2005).
                            To obtain an additur, the moving party must establish that
                the damages awarded were clearly inadequate and the case is a "proper
                one for granting a motion for a new trial limited to damages."    Winchell   V.

                Schiff, 124 Nev. 938, 949, 193 P.3d 946, 953 (2008) (internal quotation
                marks omitted). "[I]n practical application there is only one primary
                consideration. . [I]f damages are clearly inadequate or shocking to the
                court's conscience, additur is a proper form of appellate relief."
                Donaldson, 109 Nev. at 1042, 862 P.2d at 1206 (internal quotation marks
                omitted) (citing Arnold v. Mt. Wheeler Power, 101 Nev. 612, 614, 707 P.2d
                1137, 1139 (1985)).
                            Here, the jury heard conflicting testimony regarding the
                nature and extent of France's injuries and the necessity of future medical
                treatment. Additionally, the parties introduced significant contradictory
                evidence regarding the nature and extent of France's injuries. Thus, the
                jury's award was supported by substantial evidence. Accordingly, the
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                   district court did not abuse its discretion in denying France's motion for
                   additur. 1 Accordingly, we
                               ORDER the judgment of the district court AFFIRMED.




                                                                                    J.



                                                                                    J.




                                                                                    J.
                                                     Gibbons




                   cc: Hon. Rob Bare, District Judge
                        John Walter Boyer, Settlement Judge
                        Law Office of Justin Patrick Stovall
                        Stovall & Associates
                        Atkin Winner & Sherrod
                        Eighth Judicial District Court Clerk




                         'We have considered the parties' remaining arguments and conclude
                   they are without merit.



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