Clarifying Spoliation Remedies: Permissive Adverse Inference for Negligent Evidence Withholding

Introduction

In Paley v. Desert Palace, LLC, the Supreme Court of Nevada addressed critical questions concerning the proper jury instruction for spoliated evidence, the procedural requirements for seeking a new trial on appeal, and the threshold for granting a retrial based on alleged attorney misconduct. Appellant Judy Paley sued the respondent Desert Palace, LLC (d/b/a Nobu Restaurant) after she fell ill in February 2017 following a meal. She asserted negligence, negligence per se, strict product liability, and breach of warranty. A six-day jury trial in the Eighth Judicial District Court resulted in a defense verdict for Nobu. Paley appealed on three grounds: the district court’s spoliation instruction (adverse inference rather than rebuttable presumption), the lack of a district-court motion for new trial, and instances of purported attorney misconduct during closing arguments. The Supreme Court of Nevada affirmed, thereby clarifying important aspects of spoliation remedies, appellate practice, and misconduct relief.

Summary of the Judgment

The Supreme Court of Nevada unanimously held:

• Appellate New Trial Motion: Under NRAP 3A(a) and established case law (e.g., Rives v. Farris), a party need not move for a new trial below before seeking that relief on appeal.
• Spoliation Jury Instruction: When evidence is negligently—but not willfully—withheld, a permissive adverse inference instruction is appropriate. A rebuttable presumption under NRS 47.250(3) applies only to willful suppression.
• Attorney Misconduct: Two isolated references in closing arguments to a menu warning did not constitute prejudicial misconduct requiring a new trial once the trial court admonished counsel and instructed the jury to disregard any fault on Paley’s part.

Accordingly, the Supreme Court affirmed the district court’s order of judgment and denied a new trial.

Analysis

Precedents Cited

The Court relied on several key authorities:

• Bass-Davis v. Davis, 122 Nev. 442, 134 P.3d 103 (2006): Established the standard for reviewing spoliation instructions and distinguished between permissive adverse inferences for negligent withholding and rebuttable presumptions for willful suppression under NRS 47.250(3).
• Rives v. Farris, 138 Nev. 138, 506 P.3d 1064 (2022): Confirmed that an appellant need not move for a new trial in the district court before seeking that remedy on appeal.
• Evans-Waiauw v. Tate, 138 Nev. 423, 511 P.3d 1022 (2022): Emphasized the practical benefits of moving for a new trial below even when not required, such as record development.
• Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008): Set the standard for reviewing alleged attorney misconduct and defining when admonishment suffices to cure the effect.
• Pearson v. Pearson, 110 Nev. 293, 871 P.2d 343 (1994): Clarified the doctrine of invited error when a party requests a particular jury instruction.
• Gunderson v. D.R. Horton, Inc., 130 Nev. 67, 319 P.3d 606 (2014): Provided guidance on isolated attorney misconduct and its effect on trial fairness.

Legal Reasoning

1. Appellate New Trial Motion:
NRAP 3A(a) expressly permits an appeal from a final judgment “with or without first moving for a new trial.” The Court reaffirmed that, under Nevada precedent, failure to move for a new trial in the district court does not bar appellate review of that remedy.

2. Spoliation Instruction:
Under NRS 47.250(3), willful suppression of evidence gives rise to a rebuttable presumption that the evidence would be unfavorable. For negligent suppression, courts may instruct jurors to draw a permissive adverse inference, provided the district court (a) examines the facts, (b) applies the correct legal standard (negligence vs. willfulness), and (c) reaches a reasonable conclusion through a rational process (Bass-Davis). Here, absent evidence of intent to deprive Paley of the temperature logs, the district court correctly characterized Nobu’s conduct as negligent and gave the proper instruction.

3. Attorney Misconduct:
Trial counsel’s isolated references to a menu warning—after the court had excluded assumption-of-risk and comparative-fault defenses—were reviewed de novo. The district court’s prompt bench-conference admonishment and corrective jury instruction rendered the remarks non-prejudicial. Because there was no pattern of repeated or persistent misconduct, no new trial was warranted.

Impact

This decision will guide Nevada trial courts in distinguishing between negligent and willful spoliation, ensuring that jury instructions accurately reflect the nature of the evidence withholding. It also underscores the latitude parties retain in appellate strategy—confirming that a new-trial motion is not a prerequisite to an appeal—and reinforces that isolated improper statements in closing argument, once cured by timely admonition, rarely justify retrial. Future litigants will need to carefully document spoliation intent and preserve arguments at trial, while trial courts will be encouraged to make explicit findings on spoliation and to address misconduct swiftly and transparently.

Complex Concepts Simplified

• Spoliation: The loss or destruction of evidence that a party had an obligation to preserve.
• Permissive Adverse Inference: A jury instruction allowing jurors, but not requiring them, to infer that the missing evidence would have been harmful to the party responsible for its loss.
• Rebuttable Presumption: A mandatory legal presumption that shifts the burden of proof to the party responsible for willfully suppressing evidence, who may attempt to present contrary evidence.
• NRAP 3A(a): The Nevada appellate rule permitting appeals “with or without” a new-trial motion below.
• Attorney Misconduct and Admonishment: Isolated improper remarks by counsel can be cured by an immediate admonishment and jury instruction to disregard.
• Invited Error: A party cannot complain on appeal about an instruction or practice it requested at trial.

Conclusion

Paley v. Desert Palace, LLC crystallizes key procedural and evidentiary standards in Nevada law. It affirms that an appellant may bypass a district-court new-trial motion, that simple negligence in evidence withholding warrants a permissive adverse inference rather than a harsher presumption, and that isolated attorney missteps—once properly remedied by the trial judge—do not undermine the verdict. Together, these holdings enhance clarity for practitioners and courts alike, ensuring predictable and fair adjudication of spoliation claims and preserving the integrity of Nevada’s appellate framework.