                Clint Belka, its corporate representative, and Jeff Baer, its engineering
                expert. Baer specifically testified about a feasibility study he prepared for
                the Golden Nugget after the first accident concerning the repair of the
                entire parking garage. Despite Passer's objections to Baer's testimony, the
                district court concluded that the testimony did not open the door for
                admission of evidence regarding the Golden Nugget's subsequent remedial
                measures. At the conclusion of trial, the jury returned a verdict in favor of
                the Golden Nugget and Passer appealed.
                            On appeal, Passer argues that the district court erred in
                denying her motion for a new trial based on the fact that the court
                precluded her from admitting evidence of the Golden Nugget's subsequent
                remedial measures.'
                            Although we conclude that Passer should have been permitted
                to introduce evidence of the Golden Nugget's subsequent remedial
                measures pursuant to NRS 48.095(2), Passer failed to demonstrate that
                this admission would have changed the outcome of the case and we
                therefore conclude the district court did not abuse its discretion by
                denying Passer's motion for a new trial.
                Standard of review
                            This court reviews both evidentiary rulings and
                determinations on motions for a new trial for an abuse of discretion. FGA,
                Inc. v. Giglio, 128 Nev. „ 278 P.3d 490, 497 (2012); Dow Chem. Co.
                v. Mahlum, 114 Nev. 1468, 1505, 970 P.2d 98, 122 (1998), overruled in
                part on other grounds by GES, Inc. v. Corbitt, 117 Nev. 265, 21 P.3d 11

                     'Passer also argues that the district court erred when it denied her
                motion for judgment as a matter of law. After careful consideration, we
                conclude that Passer's arguments on this issue lack merit.


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                    (2001). Further, we will not interfere with a district court's exercise of its
                    discretion in an evidentiary ruling "absent a showing of palpable abuse."
                    M.C. Multi-Family Deu., LLC v. Crestdale Assocs., Ltd.,    124 Nev. 901, 913,
                    193 P.3d 536, 544 (2008).
                    Evidence of subsequent remedial measures
                                Generally, evidence of subsequent remedial measures is
                    inadmissible. NRS 48.095 provides as follows:
                                      1. When, after an event, measures are
                                taken which, if taken previously, would have made
                                the event less likely to occur, evidence of the
                                subsequent measures is not admissible to prove
                                negligence or culpable conduct in connection with
                                the event.
                                      2 This section does not require the
                                exclusion of evidence of subsequent remedial
                                measures when offered for another purpose, such
                                as proving ownership, control, feasibility of
                                precautionary measures, or impeachment.
                    The district court determined that evidence of the Golden Nugget's
                    subsequent repairs and reinforcements to the parking garage were
                    inadmissible unless it elicited testimony about the repairs. But, if the
                    Golden Nugget introduced evidence about the remedial measures, it would
                    open the door for Passer to present additional evidence on that issue.
                                Passer argues that the Golden Nugget opened the door for
                    entry of evidence of subsequent remedial measures during three separate
                    occasions: (1) the Golden Nugget's opening statement, (2) the testimony of
                    Clint Belka, and (3) the testimony of Jeff Baer. First, Passer argues that
                    during the Golden Nugget's opening statement, counsel opened the door
                    for additional evidence when he stated that the "new Uniform Building
                    Code wall is also going to fail," and that "if you take either code[ 1, it's
                    going to be the same and. . . the same situation [would] occur." In
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                response, the Golden Nugget contends that whether the 1997 Uniform
                Building Code would have prevented the accident is irrelevant to whether
                it later refitted the building. We conclude that the Golden Nugget's
                argument has merit because the remarks do not directly mention the
                retrofit of the parking garage.
                            Second, Passer argues that when Belka testified that "[i]f we
                could have reacted quick enough and engineered the system that we --
                eventually went in there," he opened the door for evidence of subsequent
                remedial measures. The Golden Nugget argues that this testimony did
                not open the door for other evidence because Belka is not an engineer, the
                testimony was elicited by Passer, and the testimony went to two
                individual panels that the Golden Nugget had replaced. When Passer
                objected to this particular testimony from Belka, the district court
                instructed the jury to disregard the testimony rather than permit Passer
                to introduce evidence of subsequent remedial measures. The Golden
                Nugget argues that the district court's instruction properly remedied the
                testimony. We agree. Belka's statement was offered in response to
                Passer's question, and the court gave the jury a curative instruction.
                            Lastly, Passer argues that Baer's testimony also opened the
                door for admission of evidence of subsequent remedial measures.
                Although the Golden Nugget was careful to specify that Baer's testimony
                reflected occurrences prior to Marcinkowski's accident, the Golden Nugget
                asked Baer if "[t]here were discussions that [he] had with the Golden
                Nugget as to time frames if there was to be an entire retrofit of the
                garage," and then asked him to describe the planning process necessary to
                retrofit the entire garage. Baer testified about a feasibility study and the
                "prospective time frames" necessary to retrofit the entire garage. Baer's

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                  testimony also included references to "the operational impact" of the
                  retrofit and potential "loss of revenue." The Golden Nugget argues that
                  this testimony shows that it would have been difficult for it to retrofit the
                  parking garage in the nine months between the first accident and
                  Marcinkowski's accident, and this fact would not have been properly
                  rebutted by evidence of the actual retrofit.
                              Although Baer's testimony was based on work he performed
                  prior to Marcinkowski's accident, his testimony opened the door for
                  additional evidence of the Golden Nugget's subsequent remedial
                  measures. The feasibility study Baer testified about specifically related to
                  the feasibility of retrofitting the garage. Although the study was prepared
                  between the first accident and Marcinkowski's accident, the testimony
                  directly addressed whether it was feasible, for the Golden Nugget to have
                  retrofitted the garage and potentially prevented Marcinkowski's accident.
                  Here, the Golden Nugget intentionally elicited testimony from Baer about
                  the feasibility study he prepared, and Passer should have been permitted
                  to introduce evidence of the Golden Nugget's subsequent remedial
                  measures pursuant to NRS 48.095(2).
                              Having determined that the district court abused its discretion
                  in making this evidentiary ruling, we now must determine whether this
                  error warrants reversal and remand for a new trial, or whether this error
                  was harmless. See Beattie v. Thomas, 99 Nev. 579, 586, 668 P.2d 268, 273
                  (1983) (noting that an error in evidence admissibility must be prejudicial
                  in order to warrant reversal and remand, and an error is prejudicial if the
                  error "so substantially affected [the complaining party's] rights that it
                  could be reasonably assumed that if it were not for the alleged error[ ], a



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                different result might reasonably have been expected" (quoting El Cortez
                Hotel, Inc. v. Coburn, 87 Nev. 209, 213, 484 P.2d 1089, 1091 (1971))).
                            While we conclude that the district court erred in not allowing
                the evidence of the Golden Nugget's subsequent remedial measures,
                Passer did not argue, and the dissent has failed to demonstrate, how the
                error "might reasonably have been expected" to produce a different result.
                Beattie, 99 Nev. at 586, 668 P.2d at 273 (internal quotations omitted). We
                cannot "imply[ ]," as suggested by the dissent, and are therefore unable to
                conclude, that the inclusion of the evidence would have resulted in a
                different verdict. The evidence clearly demonstrates the panels were
                constructed in accordance with the Uniform Building Code. The feasibility
                study, although produced before Marcinkowski's accident, would not have
                afforded the Golden Nugget adequate time to make repairs that would
                have prevented his death. Further, there is ample evidence in the record
                to conclude that Marcinkowski's negligence in misapplying the accelerator
                pedal was the contributing factor to his death. Expert testimony elicited
                at trial indicated that Marcinkowski's misapplication caused his car to
                reach a speed of between six to nine miles per hour at the point of the
                barrier, and a speed of six-tenths of a mile per hour was sufficient to break
                through the barrier.
                            For the reasons set forth above, we ORDER the judgment of
                the district court AFFIRMED.



                                                                                    J.
                                                    Hardesty




                                                    Douglas
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                    cc:   Chief Judge, The Eighth Judicial District Court
                          Hon. Joseph T. Bonayenture, Senior Judge
                          Hon. Kerry Louise Earley, District Judge
                          Hon. Kenneth Cory, District Judge
                          Israel Kunin, Settlement Judge
                          Eglet Law Group
                          Cisneros & Marias
                          Eighth District Court Clerk




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                CHERRY, J., concurring in part and dissenting in part:

                             I agree with my colleagues that the district court abused its
                discretion in making the evidentiary ruling that precluded Passer from
                producing evidence of subsequent remedial repairs and reinforcement to
                the parking structure.
                             I do not agree with my colleagues that the district court was
                correct in denying Passer's motion for a new trial. The majority bases its
                affirmance of the defense verdict and the denial of the motion for a new
                trial on the fact that Passer did not argue that the inclusion of the
                evidence of subsequent remedial measures would have resulted in a
                different verdict.
                             The majority has become a "fact finder," and uses its own
                analysis of the facts to deny Passer a new trial even with the inclusion of
                the evidence of subsequent remedial measures and/or repairs.
                             By filing a motion for a new trial, Passer is certainly implying
                that, but for the evidentiary error, the verdict would have been in her
                favor.
                             At the new trial, the defense would of course be able to raise
                the affirmative defense of comparative negligence on behalf of the
                deceased and then the new jury could determine with the inclusion of
                subsequent remedial measures whether the deceased was negligent and
                whether his negligence was the greater cause of his death.
                             A new trial seems to me to be the fairest vehicle of deciding
                liability and damages, if any.
                             For the above reasons, I would grant Passer a new trial.




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