IN THE COURT OF APPEALS OF THE STATE OF NEVADA
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`ZACHARY TAMBEAGBOR,
`INDIVIDUALLY,
`Appellant,
`vs.
`MELAKU TEFERA, AN INDIVIDUAL;
`AND HENDERSON TAXI, A NEVADA
`CORPORATION,
`Respondents.
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`No. 88239-COA
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`gr"••••PorelrignItils=
`, FILED
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`APR 1 5 2025
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`ORDER OF AFFIRMANCE
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`Zachary Tambeagbor appeals from a judgment entered after a
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`jury verdict and post-verdict decisions in a personal injury matter. Eighth
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`Judicial District Court, Clark County; Jacqueline M. Bluth, Judge.
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`In February 2017, Tambeagbor was involved in a single car
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`traffic accident where he drove his vehicle over an item referred to as either
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`a stanchion or short pole in the median of a roadway. The collision caused
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`the airbags of his vehicle to deploy and Tambeagbor was later taken to a
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`hospital in an ambulance. Tambeagbor reported to medical providers that
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`he had pain in his left shoulder and that the pain level was at seven on a
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`one-to-ten scale. X-rays conducted at the hospital did not reveal broken
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`bones but revealed a bone spur in the shoulder joint. The hospital providers
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`ultimately concluded he had contusions but directed him to visit his primary
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`care physician.
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`COURT OF APPEALS
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`OF
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`ZACHARY TAMBEAGBOR,
`INDIVIDUALLY,
`Appellant,
`vs.
`MELAKU TEFERA, AN INDIVIDUAL;
`AND HENDERSON TAXI, A NEVADA
`CORPORATION,
`Respondents.
`
`No. 88239-COA
`
`gr"••••PorelrignItils=
`, FILED
`
`APR 1 5 2025
`
`ORDER OF AFFIRMANCE
`
`Zachary Tambeagbor appeals from a judgment entered after a
`
`jury verdict and post-verdict decisions in a personal injury matter. Eighth
`
`Judicial District Court, Clark County; Jacqueline M. Bluth, Judge.
`
`In February 2017, Tambeagbor was involved in a single car
`
`traffic accident where he drove his vehicle over an item referred to as either
`
`a stanchion or short pole in the median of a roadway. The collision caused
`
`the airbags of his vehicle to deploy and Tambeagbor was later taken to a
`
`hospital in an ambulance. Tambeagbor reported to medical providers that
`
`he had pain in his left shoulder and that the pain level was at seven on a
`
`one-to-ten scale. X-rays conducted at the hospital did not reveal broken
`
`bones but revealed a bone spur in the shoulder joint. The hospital providers
`
`ultimately concluded he had contusions but directed him to visit his primary
`
`care physician.
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`COURT OF APPEALS
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`In May 2017, Tambeagbor was involved in a second traffic
`accident, which is the subject of this case, when a vehicle driven by
`respondent Melaku Tefera rear-ended his vehicle. Respondent Henderson
`Taxi employed Tefera as a taxicab driver and Tefera was driving a taxicab
`on behalf of Henderson Taxi when the accident occurred. Tambeagbor was
`stopped at a traffic signal and Tefera rear-ended him at approximately 14
`miles per hour. A video recording of the accident revealed that Tambeagbor
`exited his vehicle and exhibited signs of discomfort in his left hand.
`Tambeagbor subsequently proceeded to drive his vehicle to a casino and
`later to his place of employment. Tambeagbor thereafter sought treatment
`at a medical facility. He reported pain in his left hand and fingers. The
`treating physician assessed that Tambeagbor had a contusion of his left
`hand.
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`In the weeks that followed, Tambeagbor visited a chiropractor
`and another physician and he began to complain of pain in his left arm, left
`shoulder, and back. Tambeagbor's pain continued and he visited Dr. Mary
`Shannon, an orthopedic surgeon. Dr. Shannon ultimately performed
`surgery on Tambeagbor's left shoulder in order to correct issues stemming
`from soft tissue tears and impingements.
`Tambeagbor later filed suit against Tefera and Henderson Taxi
`(respondents), contending that his injuries were caused by the May 2017
`traffic accident and that respondents were liable for monetary damages
`stemming from those injuries. Respondents answered, and this matter
`proceeded to discovery. Of note, Tambeagbor provided expert witness
`disclosures and he disclosed Dr. Shannon as a non-retained expert witness.
`Tambeagbor further disclosed that Dr. Shannon would testify as to the
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`cause of Tambeagbor's injuries and that "she may answer hypothetical
`questions that are based upon the facts, evidence, or testimony developed
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`at trial." The record also indicates that the parties disclosed Tambeagbor's
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`relevant medical information and the additional expert witnesses' reports.
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`Respondents submitted an offer of judgment to Tambeagbor in
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`the amount of $140,001, inclusive of costs, prejudgment interest, and
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`recoverable attorney fees. However, Tambeagbor did not accept the offer of
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`judgment and this matter proceeded to trial.
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`Tambeagbor filed several motions in limine concerning the
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`admission of evidence at trial. The district court granted several of those
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`motions, including precluding reference to any additional traffic accidents
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`Tambeagbor may have been involved in, except for information concerning
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`the February 2017 accident as such information was relevant to this matter.
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`The court also precluded the parties from referring to this matter as an
`attorney driven case or a medical build-up case but allowed questioning
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`concerning medical liens to ascertain whether a witness was biased. In
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`addition, the district court precluded respondents from stating that either
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`Tarnbeagbor or his witnesses were liars.
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`The district court also emailed the parties concerning its
`procedures for jury selection. Within that email, the court explained that
`the parties were permitted to first ask questions to the jury panel as a whole
`and they could thereafter conduct follow-up questions to the panel
`members. The court further explained that, if a party feels that a juror has
`not answered questions, the court will allow individual questions at that
`time. Tambeagbor subsequently filed a motion requesting permission to
`conduct questioning of individual jurors. However, the district court
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`explained that Tambeagbor would have the opportunity to question
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`individual jurors after he first asked general questions. Jury selection
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`ensued and the parties conducted extensive questioning of the jurors,
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`including questions posed to individual jurors.
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`The parties
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`thereafter presented opening statements.
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`Tambeagbor explained his belief that the evidence presented at trial would
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`show that his injuries were sustained in the May 2017 accident.
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`Respondents acknowledged they were responsible for the May accident and
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`that Tambeagbor suffered injuries from that accident. Respondents further
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`accepted that they were liable for monetary damages based on the injuries
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`that actually occurred as a result of the May 2017 accident. However,
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`respondents asserted that the evidence would show that Tambeagbor's
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`shoulder problems were not caused by the May 2017 accident and that they
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`should not be held responsible for damages stemming from issues involving
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`Tambeagbor's shoulder. The parties thereafter proceeded to present
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`testimony and evidence to the jury.
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`Tambeagbor testified concerning both the February 2017 and
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`the May 2017 accidents, his injuries, and difficulties stemming from his
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`shoulder issues. Tambeagbor also presented testimony from a retained
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`expert witness, Dr. Andrew Cash, an orthopedic surgeon. Dr. Cash testified
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`concerning his review of the medical records and stated that he concluded
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`that Tambeagbor's shoulder issues stemmed from the May 2017 accident.
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`Tambeagbor also presented testimony from Dr. Shannon, and
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`she testified concerning the surgical procedure she performed on
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`Tambeagbor's shoulder and her opinion on causation of his shoulder issues.
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`She testified that Tambeagbor had reported to her that his pain stemmed
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`from the May 2017 accident and she explained that her opinion as to
`causation was based in part on Tambeagbor's statements. She explained
`that, during surgery, she noted that he had several tears in his labrum that
`had since healed, and there were indications that his shoulder had been
`dislocated at some point in the past. She further noted that there were
`degenerative conditions, including a bone spur, and that those conditions
`would have taken a long time to develop. She testified that she ultimately
`concluded his shoulder problems stemmed from the May 2017 accident but,
`again, explained that was in part based on Tambeagbor's statements that
`he had not had issues with his shoulder prior to that accident.
`On cross-examination, respondents asked Dr. Shannon if she
`was aware that Tambeagbor had been in a traffic accident in February 2017
`and had reported to the medical providers directly after the accident that
`his shoulder had a high amount of pain. Tambeagbor objected and argued
`that Dr. Shannon should not be questioned concerning the February 2017
`accident because she had not been made aware of that accident prior to trial.
`The district court overruled the objection and permitted her to be
`questioned concerning that information. Dr. Shannon responded that she
`had not been aware of the February 2017 accident or Tambeagbor's report
`of shoulder pain following that accident. She acknowledged that her opinion
`on the cause of Tambeagbor's shoulder issues may have been altered had he
`reported that accident to her and explained that doctors have to rely on
`patient honesty to properly evaluate the cause of an injury. She further
`explained that tears to the rotator cuff and labrum caused by a trauma, as
`opposed to degenerative tears, typically involve immediate pain and
`dysfunction.
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`Respondents later presented testimony from their expert
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`witness, Dr. John Herr, an orthopedic surgeon who typically treats patients
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`with shoulder problems. Dr. Herr testified that he compared the medical
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`records stemming from the February 2017 accident with those from the May
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`2017 accident and noted that Tarnbeagbor complained of high pain in his
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`shoulder following the February accident but not following the May
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`accident. Dr. Herr also explained that traumatic tears in the shoulder
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`typically result in immediate pain but the pain will decrease over time. Dr.
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`Herr testified that, had Tambeagbor torn his rotator cuff or labrum in the
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`May 2017 accident, he likely would have had meaningful pain following that
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`accident. Herr also testified that, based on his review of Dr. Shannon's
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`surgical notes, the nature of the tears in Tarnbeagbor's labrum and the spur
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`meant that he likely had degenerative problems in his shoulder. Based on
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`the foregoing information, Herr testified that he did not believe that
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`Tarnbeagbor's shoulder problems were caused by the May 2017 accident.
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`During closing arguments, Tambeagbor urged the jury to find
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`that all of his injuries, including those to his shoulder, were caused by the
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`May 2017 accident and that respondents were accordingly liable for
`monetary damages stemming from those injuries. Tambeagbor accordingly
`urged the jury to award him more than one million dollars in damages.
`Respondents acknowledged they were liable for the May 2017 accident and
`explained that they accepted responsibility for monetary damages from the
`injuries Tambeagbor sustained as a result of the May accident but argued
`that the evidence demonstrated Tambeagbor did not suffer a shoulder
`injury in that accident.
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`The jury thereafter returned a verdict, awarding Tambeagbor
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`past medical expenses of $10,259.48; past lost earnings in the amount of
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`$5,600; past pain, suffering, disability and loss of enjoyment of life in the
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`amount of $30,000; and no damages for Tambeagbor's claim of future pain,
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`suffering, disability and loss of enjoyment of life. The monetary damages
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`awarded to Tambeagbor totaled $45,859.49. The district court later entered
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`a judgment on the jury verdict.
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`Tambeagbor thereafter urged the district court to award him
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`costs as the prevailing party and he filed a memorandum of costs.
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`Respondents opposed the award of costs, arguing that Tambeagbor did not
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`obtain a more favorable judgment than the offer of judgment and he was
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`therefore not entitled to costs pursuant to NRCP 68. Respondents also
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`contended they were entitled to an award of costs under NRCP 68.
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`Tambeagbor opposed respondents' request for costs and argued that he
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`obtained a more favorable judgment than the offer of judgment when
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`including counsel's contingent fee in the amount of 40 percent of all money
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`recovered, including costs and prejudgment interest. Tambeagbor also
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`noted that respondents filed their memorandum of costs more than five days
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`after entry of the judgment and urged the district court to retax Dr. Herr's
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`expert witness fees as he believed they were not reasonable. In addition,
`Tambeagbor filed a motion for a new trial, arguing the district court abused
`its discretion concerning jury selection and by permitting questioning of Dr.
`Shannon concerning the February 2017 accident, and that respondents'
`counsel committed misconduct during opening statements and improperly
`displayed an unredacted medical record to the jury. Respondents opposed
`the motion for a new trial.
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`The district court later held a hearing in which it explained that
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`Tambeagbor did not obtain a more favorable judgment than the offer of
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`judgment. The court found that respondents made an inclusive offer of
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`judgment and, therefore, Tambeagbor's attorney fees should only be
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`included in the calculation to ascertain whether he obtained a more
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`favorable judgment if he was entitled to recover such fees by law or contract
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`pursuant to NRCP 68(g). The court found that Tambeagbor did not
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`demonstrate that any law or contract permitted him to recover attorney
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`fees. Absent those fees, Tambeagbor had not obtained a judgment more
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`favorable than the $140,001 offer provided by respondents. The court
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`accordingly found that Tambeagbor was not entitled to an award of costs as
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`NRCP 68(f)(1)(A) precludes such an award for parties that did not obtain a
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`more favorable judgment than the offer of judgment.
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`The district court also found that there was good cause for
`respondents to file an untimely memorandum of costs as they had to wait
`until Tambeagbor filed his memorandum of costs in order to calculate
`whether he had beat their offer of judgment. See NRS 18.110(1) (providing
`that a memorandum of costs must be filed "within 5 days after the entry of
`judgment, or such further time as the court or judge may grant"). In
`addition, the court found that respondents were entitled to an award of
`costs, including the expert witness fees for Dr. Herr. See NRCP 68(f)(1)(B)
`(stating that the offeree that fails to obtain a more favorable judgment after
`rejecting an offer of judgment must pay the offeror's reasonable post-offer
`trial-related expenses, including expert witness fees). The district court
`noted that it had to make findings to support an expert fee in excess of
`$15,000 pursuant to NRS 18.005(5), and it concluded that Dr. Herr's fees in
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`the amount of $21,950 were reasonable in light of the depth of the findings
`in his report and the nature of his trial testimony, which the court found to
`have been excellent.
`The district court thereafter entered a written order denying
`Tambeagbor's request for costs, denying Tambeagbor's request to retax
`respondents' expert witness fees, and awarding respondents' costs in the
`amount of $26,403.81. The district court also entered a written order
`denying Tambeagbor's motion for new trial, concluding he failed to
`demonstrate any issues raised in the motion warranted a new trial. This
`appeal followed.
`Jury Selection
`First, Tambeagbor argues the district court abused its
`discretion by refusing to permit the parties to ask questions of individual
`jurors. "The judge shall conduct the initial examination of prospective
`jurors and the parties or their attorneys are entitled to conduct
`supplemental examinations which must not be unreasonably restricted."
`NRS 16.030(6). "The scope of voir dire nonetheless rests within the sound
`discretion of the district court, whose decision will be given considerable
`deference by this court." Thomas v. Hardwick, 126 Nev. 142, 148, 231 P.3d
`1111, 1115 (2010) (internal quotation marks omitted); see also Whitlock v.
`Salmon, 104 Nev. 24, 28, 752 P.2d 210, 213 (1988) (stating a trial judge may
`‘`reasonably control and limit an attorney's participation in voir dire," and
`such restrictions are "within the discretion of the district court").
`As previously stated, the district court informed the parties
`that they could ask individual jurors questions after first asking general
`questions. Here, the district court simply required Tambeagbor to first pose
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`general questions to the potential jurors before asking follow-up questions
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`to individual jurors.
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`The record plainly demonstrates that the court
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`permitted Tambeagbor to pose questions to individual jurors, and he posed
`numerous questions to individual jurors. Moreover, Tambeagbor does not
`identify any potential jurors that he was unable to adequately question.
`Considering the foregoing information, Tambeagbor fails to demonstrate
`that the district court abused its discretion by restricting questioning
`during jury selection. See Thomas, 126 Nev. at 148, 231 P.3d at 1115.
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`Second, Tambeagbor argues the district court abused its
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`discretion by declining to strike a juror for cause. Tambeagbor contends the
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`juror indicated she was biased against plaintiffs in personal injury matters.
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`This court analyzes a district court's ruling on a challenge for cause against
`a juror for an abuse of discretion. Sayedzada v. State, 134 Nev. 283, 291,
`419 P.3d 184, 192 (Ct. App. 2018). "[I]f a juror manifests potential bias,
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`further questioning may either rehabilitate the juror or demonstrate
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`impermissible bias if the juror's answers, taken as a whole, demonstrate the
`juror's state of mind substantially impairs the juror's ability to apply the
`law and the instructions of the court in deciding the verdict." Id. (internal
`quotation marks omitted). "It is well-established that trial judges are in the
`best position to view the prospective juror's demeanor and judge the
`veracity of the juror's assertion of impartiality . . . ." Sanders v. Sears-Page,
`131 Nev. 500, 509, 354 P.3d 201, 207 (Ct. App. 2015).
`In response to questions posed by Tambeagbor, one juror
`indicated that, based on her knowledge of the facts of a personal injury
`action involving a friend, she had a little bit of skepticism of such matters.
`However, upon
`further questioning
`from both Tambeagbor and
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`respondents, the juror stated she would need to hear testimony before she
`could evaluate the merits of this matter, stated she would treat both parties
`the same, and that she could set aside her previous experience and decide
`this matter solely on the evidence presented at trial. Tambeagbor moved to
`strike the juror for cause, arguing the juror had not sufficiently indicated
`she would be fair and impartial. The district court denied that request in
`light of the juror's statements that she would be fair and evaluate this
`matter based on the evidence presented at trial.
`The district court was in the best position to view the juror's
`demeanor and to evaluate her veracity, and the record supports the district
`court's findings concerning her statements. Thus, Tambeagbor fails to
`demonstrate the district court abused its discretion by finding that the
`juror's assertion of impartiality was accurate or by denying his for-cause
`challenge.
`Opening staternents
`Next, Tambeagbor argues that respondents' counsel committed
`misconduct during opening statements. "Whether an attorney's comments
`are misconduct is a question of law subject to de novo review." Grosjean u.
`Imperial Palace, Inc., 125 Nev. 349, 364, 212 P.3d 1068, 1078 (2009). "Still,
`we give deference to the district court's factual findings and to how it
`applied the standards to those facts." Id. The party alleging misconduct
`bears the burden of demonstrating that a new trial based on the alleged
`misconduct is warranted. Lioce u. Cohen, 124 Nev. 1, 17-19, 174 P.3d 970,
`981-82 (2008). Moreover, "[a]n attorney's violation of an order in limine can
`amount to misconduct justifying a new trial" but "[a] violation of an order
`granting a motion in limine may only serve as a basis for a new trial when
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`the order is specific in its prohibition and the violation is clear." Bayerische
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`Motoren Werke Aktiengesellschaft u. Roth, 127 Nev. 122, 132, 252 P.3d 649,
`656 (2011) (internal quotation marks omitted). In addition, "[w]here the
`record demonstrates that the jury's verdict is strongly supported by
`overwhelming evidence, the verdict can generally be explained by the
`evidence itself and even serious misconduct may not warrant a new trial."
`Michaels u. Pentair Water Pool & Spa, Inc., 131 Nev. 804, 816, 357 P.3d 387,
`396 (Ct. App. 2015); see also Allstate Ins. Co. u. Miller, 125 Nev. 300, 308,
`212 P.3d 318, 324 (2009) (stating a jury verdict will be upheld if it is
`supported by substantial evidence).
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`First, Tambeagbor argues respondents' counsel committed
`misconduct by stating Tambeagbor was taking advantage of the situation
`by seeking damages for his shoulder issues. A party seeking a new trial
`based on misconduct after a district court sustained an objection to that
`misconduct must demonstrate that the district court's actions "were
`insufficient to remove the attorney misconduct's effect." Lioce, 124 Nev. at
`17-18, 174 P.3d at 981. "[Ain attorney's statements of personal opinion as
`to the justness of a cause, the credibility of a witness, or the culpability of a
`litigant is ... improper in civil cases and may amount to prejudicial
`misconduct necessitating a new trial." Id. at 21-22, 174 P.3d at 983.
`During respondents' opening statement, respondents' counsel
`stated that Tambeagbor had taken advantage of the situation to seek
`damages for his shoulder problems. Tambeagbor did not object initially but
`did object when counsel again stated that Tambeagbor had taken advantage
`of the situation. Tambeagbor argued counsel improperly offered his opinion
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`on the matter. The district court sustained the objection and admonished
`counsel to refrain from making such statements.
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`Respondents' counsel improperly offered his opinion that
`Tambeagbor was taking advantage of the situation by seeking damages for
`his shoulder issues. However, Tambeagbor objected and the district court
`admonished counsel to refrain from again presenting that opinion. The
`district court correctly concluded that respondents' statements were
`improper and accordingly admonished counsel.' See id. at 17, 174 P.3d at
`980.
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`As previously discussed, there was significant evidence
`presented demonstrating that Tambeagbor did not sustain a shoulder
`injury in the May 2017 accident, but rather that he sustained it either
`during the February 2017 accident or that his shoulder issues were
`degenerative.
`In particular, Dr. Herr explained that he specialized in
`surgical procedures for shoulder issues and he testified at length to his
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`'Generally, when a district court sustains an objection to attorney
`misconduct, it "should not only sustain the objection but admonish the jury
`and counsel." Id. at 17, 174 P.3d at 980. Here, the district court admonished
`counsel but did not admonish the jury concerning the statement. However,
`Tambeagbor did not request an admonishment to the jury and he does not
`challenge any failure to give such an admonishment in his opening brief.
`As a result, we decline to address this issue, which was raised for the first
`time in Tambeagbor's reply brief. See Old Aztec Mine, Inc. u. Brown, 97
`Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court,
`unless it goes to the jurisdiction of that court, is deemed to have been waived
`and will not be considered on appeal."); Powell u. Liberty Mat. Fire Ins. Co.,
`127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) ("Issues not raised in an
`appellant's opening brief are deemed waived.").
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`conclusion that Tarnbeagbor did not sustain a significant shoulder injuiy
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`during the May 2017 accident. Dr. Shannon also acknowledged that
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`Tambeagbor had not provided her with sufficient information concerning
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`the February 2017 accident and that such information would have been very
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`important for her opinion as to causation. Finally, both Dr. Herr and Dr.
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`Shannon agreed that a traumatic tear of the tissues in the shoulder would
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`have caused immediate pain, and the evidence demonstrated that
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`Tambeagbor suffered immediate pain as a result of the February 2017
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`accident but not the May 2017 accident. In light of the foregoing evidence,
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`the verdict is explained by the evidence presented at trial and, therefore,
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`Tambeagbor fails to demonstrate that the aforementioned misconduct
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`warranted a new trial. See Michaels, 131 Nev. at 816, 357 P.3d at 396.
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`Accordingly, we conclude that Tambeagbor is not entitled to relief based on
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`this argument.
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`Second, Tambeagbor argues
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`that
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`respondents' counsel
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`committed misconduct by stating the facts would show that he was not
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`being honest and forthcoming. Tarnbeagbor asserts that statement
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`improperly offered counsel's opinion on his credibility and violated an order
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`in limine that directed respondents to refrain from calling him a liar. When
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`a party objects to purported misconduct and the objection is overruled,
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`reversal is only warranted if this court determines that the district court
`incorrectly overruled the objection and that failure to sustain the objection
`affected the moving party's substantial rights. See Lioce, 124 Nev. at 18,
`174 P.3d at 981. It is improper for an attorney to characterize a witness as
`a liar or inject a personal opinion regarding a witness's credibility. See
`DeJesus u. Flick, 116 Nev. 812, 816-17, 7 P.3d 459, 462-63 (2000), overruled
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`on other grounds by Lioce, 124 Nev at 17, 174. P.3d at 980; Ross v. State, 106
`Nev. 924, 927, 803 P.2d 1104, 1105 (1990); RPC 3.4(e). However, it is
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`permissible to demonstrate to a jury through inferences that a witness's
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`version of events is untrue. See Ross, 106 Nev. at 927, 803 P.2d at 1106.
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`Here, respondents' counsel stated that the evidence would
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`prove that Tambeagbor was not being honest and forthcoming regarding his
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`shoulder and the February 2017 traffic accident. Tambeagbor objected but
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`the district court overruled his objection.
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`Counsel did not offer his personal opinion on Tambeagbor's
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`credibility. Counsel also did not violate an order in limine as he did not
`
`specifically call Tambeagbor a liar.
`
`See Bayerische Motoren Werke
`
`Aktiengesellschaft; 127 Nev. at 132, 252 P.3d at 656. Rather, counsel stated
`that the evidence to be produced at trial would not support Tambeagbor's
`
`contentions about the cause of his shoulder issues. As counsel did not offer
`
`a personal opinion as to Tambeagbor's credibility or call Tambeagbor a liar,
`we conclude that counsel did not commit misconduct and the district court
`did not err by overruling Tambeagbor's objection. Accordingly, Tambeagbor
`fails to demonstrate attorney misconduct warranting a new trial. See Lioce,
`124 Nev. at 19, 174 P.3d at 982.
`
`Third, Tambeagbor argues
`that
`respondents' counsel
`committed misconduct by implying that no other persons involved in the
`accident had been injured. During opening statements, respondents'
`counsel stated that there were four people involved in the accident and said,
`‘`only one person," but before he could finish his sentence Tambeagbor
`objected. At a bench conference, Tambeagbor stated his belief that counsel
`intended to state that Tambeagbor was the only person injured and
`
`COURT OF APPEALS
`
`OF
`NEVADA
`
`101 1947B Co
`
`15
`
`
`
`contended that lack of injury to others was not relevant. The district court
`
`agreed with Tambeagbor and admonished counsel to move on from that
`
`issue. Counsel accordingly turned to a different topic when he resumed his
`
`•opening statement. As the district court instructed counsel to refrain from
`making the challenged statement to the jury, and in consideration of the
`
`strong evidence presented supporting the jury's verdict, Tambeagbor fails
`
`to demonstrate that this amounts to the rare circumstance in which the
`
`attorney misconduct warrants a new trial. See id.; Michaels, 131 Nev. at
`
`816, 357 P.3d at 396. Accordingly, we conclude that Tambeagbor is not
`
`entitled to relief based on this argument.
`
`Fourth, Tambeagbor argues respondents' counsel committed
`
`misconduct by discussing the opinions of a non-testifying expert. During
`
`opening statements, respondents' counsel stated that respondents retained
`
`a medical expert •and that expert informed them that several of
`
`Tambeagbor's injuries were caused by the May 2017 accident. Tambeagbor
`
`objected, arguing that counsel did not intend to present testimony from that
`
`expert and that he should not be permitted to mention information from a
`non-testifying expert. However, the district court overruled the objection,
`finding it was permissible as it amounted to an admission of respondents'
`liability. Because the district court overruled Tambeagbor's objection,
`reversal is only warranted if this court determines that the district court
`incorrectly overruled the objection and that failure to sustain the objection
`affected the moving party's substantial rights. See Lioce, 124 Nev. at 18,
`174 P.3d at 981. Here, the challenged statements consisted of respondents'
`counsel providing explanation for respondents' admission of liability for
`several of Tambeagbor's injuries.
`
`In light of the foregoing, and the
`
`COURT OF APPEALS
`
`OF
`
`NEVADA
`
`10) 1947B e
`
`16
`
`
`
`significant evidence presented at trial indicating that Tambeagbor did not
`
`injure his shoulder in the May 2017 accident, Tambeagbor fails to
`
`demonstrate that the district court incorrectly overruled the objection or
`
`that its decision affected his substantial rights. Accordingly, we conclude
`
`that Tambeagbor is not entitled to relief based on this argument.
`
`Fifth, Tarnbeagbor argues respondents' counsel committed
`
`misconduct by mentioning other, post-May 2017 accidents Tambeagbor had
`
`been involved in. He contends mention of post-May 2017 accidents violated
`
`an order in limine. During opening statements, respondents' counsel noted
`
`that Tambeagbor had been served with interrogatories, which included a
`
`question concerning whether he had been involved in car accidents after
`
`May 2017. Tambeagbor objected, and at a resulting bench conference,
`
`respondents' counsel explained that he was not referring to post-May 2017
`
`accidents but to Tambeagbor's interrogatory response where he described
`
`the accident that was substantially similar to the February 2017 but stated
`
`it occurred in September 2018. Tambeagbor's counsel acknowledged that
`Tambeagbor had been confused about the interrogatory because of a
`language barrier and that was reflected in his response. The court
`
`reminded respondents' counsel that he was not permitted to discuss post-
`
`May 2017 accidents but permitted him to refer to the interrogatory response
`and overruled the objection. Respondents' counsel thereafter continued his
`opening statement, noting that Tambeagbor had provided an inconsistent
`and inaccurate response to the interrogatory. Here, the record plainly
`demonstrates that respondents' counsel did not refer to a post-May 2017
`accident but
`instead
`to Tambeagbor's
`inaccurate response
`to an
`interrogatory. Therefore, Tambeagbor fails to demonstrate counsel
`
`COURT OF APPEALS
`OF
`NEVADA
`
`oJ 19410 agps.
`
`17
`
`
`
`committed misconduct or that the district court's decision to overrule the
`
`objection was erroneous or that its decision affected his substantial rights.
`
`See id. Accordingly, we conclude that Tambeagbor is not entitled to relief
`
`based on this argument.
`
`Evidence
`
`Next, Tambeagbor argues the district court abused its
`
`discretion by allowing questioning of Dr. Shannon concerning the February
`
`2017 accident and that respondents' counsel committed misconduct posing
`
`such questions. Tambeagbor contends that Dr. Shannon was a treating
`
`physician, had not reviewed medical records outside of those involved in her
`
`treatment of Tambeagbor, and that NRCP 16.1 bars parties from presenting
`
`information to a treating physician when that physician did not learn of
`
`such information during the course of treatment.
`
`We review a district court's decision to exclude or allow
`
`evidence, as well as its decision to allow expert testimony, for an abuse of
`
`discretion. LVMPD v. Yeghiazarian, 129 Nev. 760, 764-65, 312 P.3d 503,
`507 (2013) (reviewing evidentiary decisions for an abuse of discretion);
`
`Hallmark v. Eldridge, 124 Nev. 492, 498, 189 P.3d 646, 650 (2008)
`(reviewing the decision to allow or exclude expert testimony for an abuse of
`discretion). When a p
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