Nevada Supreme Court bars “comparable verdicts” in excessive-damages review and reaffirms full contingency-fee recovery under NRCP 68: Bellomo v. Roybal

Introduction

In Bellomo v. Roybal, the Supreme Court of Nevada affirmed a substantial negligence verdict and a sweeping post-judgment fee award arising from a catastrophic car–bicycle collision. The case presented two core issues with broad implications for civil practice in Nevada:

How courts should evaluate claims that a jury’s damages award is “excessive” under NRCP 59(a)(1)(F) (excessive damages given under the influence of passion or prejudice), including whether trial courts may use “objective criteria” such as verdicts in other cases; and
Whether a plaintiff’s offer of judgment under NRCP 68—addressed to one defendant but referring to “defendants”—was valid as to both jointly represented defendants, and whether the district court may award the entirety of a contingency fee as post-offer fees when Beattie and Brunzell are satisfied.

After a 10-day jury trial, the jury awarded respondent Thunder Roybal $14,126,607.74 for severe injuries suffered when appellant Louis Bellomo, driving in the course and scope of employment for SHAC, LLC (Sapphire LV Gentleman’s Club), drove over Roybal as Roybal traveled in a left-turn lane. Witnesses stopped Bellomo from fleeing. On appeal, appellants challenged the verdict as excessive, alleged attorney misconduct, asserted evidentiary error, and attacked a multi-million-dollar award of attorney fees and costs under NRCP 68. The Supreme Court affirmed across the board.

Summary of the Opinion

The Court held:

No “objective criteria” or “comparable verdicts” in excessive-damages review: The district court correctly refused to compare the jury’s pain-and-suffering award to verdicts in other cases. The Court reiterated that pain and suffering is inherently subjective and that considering comparable verdicts to gauge compensatory damages is improper and, per Wyeth, an abuse of discretion.
No attorney misconduct warranting a new trial: The plaintiff’s repeated use of the word “discount” during closing argument—framed as an answer to defendants’ comparative-fault theory—did not shift the burden of proof or inflame the jury.
No reversible evidentiary error: Appellants waived one evidentiary complaint by changing their theory on appeal; another was properly rejected because defense counsel’s proposed closing argument would have misstated the plaintiff’s expert testimony without support from a defense expert.
NRCP 68 offer valid as to both jointly represented defendants: Although addressed to Bellomo, the offer referred to “defendants,” was sent to both, and the parties had a unity of interest and joint representation. Considering extrinsic evidence, the only reasonable interpretation was that the offer included both defendants.
Beattie and Brunzell satisfied; Capriati controls: The offer was reasonable in timing and amount, defendants’ rejection was in bad faith given the risk profile, and the requested fees were reasonable in light of the scope and complexity of the work. Under Capriati, the district court could award the entirety of the contingency fee as post-offer fees when Beattie and Brunzell are met.

Chief Justice Herndon concurred as to affirming the denial of a new trial but dissented from the fee award, renewing his view that Capriati was wrongly decided and that NRCP 68 permits recovery only of reasonable attorney fees “actually incurred” after the offer—not the entirety of a private contingency agreement.

Analysis

Precedents Cited and Their Influence

NRCP 59(a)(1)(F): Provides for a new trial when “excessive damages appear to have been given under the influence of passion or prejudice.” This is the governing rule for excessive-damages challenges.
BMW v. Roth, 127 Nev. 122, 252 P.3d 649 (2011): Establishes abuse-of-discretion review for new-trial rulings and cautions that no deference is owed to legal error.
Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008): Confirms the abuse-of-discretion standard for new-trial decisions; sets the de novo lens for attorney misconduct, with deference to factual application.
AA Primo Builders, LLC v. Washington, 126 Nev. 578, 245 P.3d 1190 (2010): Clarifies that abuse-of-discretion review does not shield legal error.
Quigley v. Central Pac. R.R. Co., 11 Nev. 350 (1876): Early Nevada authority on excessive damages under passion or prejudice; reaffirmed as the conceptual anchor for NRCP 59(a)(1)(F).
Brownfield v. F.W. Woolworth Co., 69 Nev. 294, 248 P.2d 1078 (1952), and Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962): Establish that pain-and-suffering damages are inherently subjective and not amenable to “objective” calibration by external comparators. Miller was abrogated on other grounds by Ace Truck & Equip. Rentals v. Kahn, 103 Nev. 503, 746 P.2d 132 (1987).
Wyeth v. Rowatt, 126 Nev. 446, 244 P.3d 765 (2010): Recognizes that using comparable verdicts to test the appropriateness of compensatory damages is an abuse of discretion.
Cox v. Copperfield, 138 Nev. 235, 507 P.3d 1216 (2022): A new trial based on attorney misconduct requires both misconduct and resulting prejudice.
Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d 981 (1981): Issues not properly preserved below are waived on appeal.
Wickliffe v. Sunrise Hosp., Inc., 104 Nev. 777, 766 P.2d 1322 (1988): Closing arguments must be grounded in the evidentiary record; counsel may not invite inferences unsupported by admitted evidence.
Frantz v. Johnson, 116 Nev. 455, 999 P.2d 351 (2000): Abuse-of-discretion standard governs fee awards.
Barney v. Mt. Rose Heating & Air Conditioning, 124 Nev. 821, 192 P.3d 730 (2008): Statutory interpretation is reviewed de novo.
Galardi v. Naples Polaris, LLC, 129 Nev. 306, 301 P.3d 364 (2013): Contract interpretation is reviewed de novo; ambiguity exists only if a provision is reasonably susceptible of more than one interpretation.
Fleischer v. August, 103 Nev. 242, 737 P.2d 518 (1987): NRCP 68 offers are likened to contract offers; contract principles apply.
Stockton Kenworth, Inc. v. Mentzer Detroit Diesel, Inc., 101 Nev. 400, 705 P.2d 145 (1985): Contract offers must be definite and certain to be enforceable.
Mohr Park Manor, Inc. v. Mohr, 83 Nev. 107, 424 P.2d 101 (1967): Courts ascertain intent from the contract’s language in context, including surrounding circumstances; permits use of extrinsic evidence.
Capriati Constr. Corp. v. Yahyavi, 137 Nev. 675, 498 P.3d 226 (2021): A district court may award a contingency fee in full as post-offer attorney fees under NRCP 68 if Beattie and Brunzell are satisfied, because the contingency fee does not vest until the client prevails.
Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983): Sets four factors governing fee awards under NRCP 68 (good faith of the claim; reasonableness of the offer; reasonableness/bad faith in rejecting; reasonableness of fees sought).
Brunzell v. Golden Gate Nat’l Bank, 85 Nev. 345, 455 P.2d 31 (1969): Provides factors for determining the reasonableness of fee amounts (quality of advocate; character/difficulty/responsibility of work; work actually performed; result obtained).
MEI–GSR Holdings, LLC v. Peppermill Casinos, Inc., 134 Nev. 235, 416 P.3d 249 (2018): Appellate deference to district courts on fee reasonableness where supported by substantial evidence.
Stocks v. Stocks, 64 Nev. 431, 183 P.2d 617 (1947): Stare decisis yields when necessary to avoid perpetuating error (cited by the dissent in urging reconsideration of Capriati).

Legal Reasoning

1) Excessive damages: subjective pain-and-suffering and the rejection of “objective criteria”

Appellants argued that the district court should have tested the verdict against “objective criteria” such as other jury awards in similar cases. The Supreme Court rejected that premise as legally unsound for non-economic damages:

Pain and suffering are “wholly subjective,” not measurable by external benchmarks (Brownfield, Miller).
Wyeth squarely recognizes that using comparable verdicts to determine the appropriateness of compensatory damages is an abuse of discretion.
The correct framework under NRCP 59(a)(1)(F) asks whether the verdict reflects passion or prejudice and whether any enumerated ground caused prejudice to the movant—not how the number compares to other cases.

Because the district court applied NRCP 59(a)(1) properly and refused to engage in a comparison-to-others exercise that Nevada law disapproves, there was no abuse of discretion. The Court also found substantial record support for the verdict and no indicia of juror passion or prejudice.

2) Attorney misconduct during closing argument: “discount” did not shift the burden

Reviewing de novo but giving deference to the district court’s application of standards, the Court held that plaintiff’s references to defendants seeking a “discount” merely rebutted defendants’ comparative-fault theory. In context, the statements neither shifted the burden of proving damages nor invited passion or prejudice. And even if error existed, appellants failed to show prejudice as required by Cox v. Copperfield to warrant a new trial.

3) Claimed evidentiary errors and closing argument limits

Waiver by issue shift on appeal: Appellants argued below that evidence of Roybal’s disability application was wrongly excluded, but on appeal they reframed the complaint as exclusion of the ex-wife’s testimony. Under Old Aztec Mine, the shift constituted waiver.
No right to misstate expert testimony in closing: The district court barred defense counsel from arguing that a neck-anchoring procedure was unnecessary based on a purported 30% risk figure not supported by plaintiff’s expert. Per Wickliffe, inferences in closing must be rooted in the admitted evidence. The court also noted the defense could have called its own expert to support the argument but did not. No abuse of discretion occurred, and any asserted disparity between past and future damages did not evince passion or prejudice.

4) NRCP 68 offer of judgment: ambiguity resolved by context and extrinsic evidence

The offer was addressed to Bellomo but referenced “defendants” throughout. Applying contract principles (Fleischer; Stockton Kenworth) and de novo review (Galardi), the Court examined the language and surrounding circumstances (Mohr Park Manor):

The offer was sent to both defendants and referenced both.
Defendants were jointly represented and conceded a “unity of interest” on the same basis of liability.
In this context, the “only reasonable reading” was that the offer covered both defendants; thus, the offer was not ambiguous in a way that would invalidate it.
Notably, appellants induced an evidentiary hearing on intent; they could not reflexively use the hearing’s existence to prove ambiguity (invited-error logic).

5) Fees under NRCP 68: Beattie and Brunzell findings supported; full contingency permissible under Capriati

The Court affirmed the district court’s Beattie findings:

Reasonableness of the offer (timing and amount): The offer contemplated past and future medical expenses and fees, fit within policy limits, and arrived after the plaintiff disclosed significant future-care needs—giving defendants ample data to evaluate settlement.
Unreasonable/bad-faith rejection: Defendants faced a weak liability posture and outsized exposure to future pain-and-suffering damages; rejecting a policy-limits offer in that risk posture supported a finding of bad faith.
Reasonableness of the fees (Beattie factor four via Brunzell): The record showed extensive, contentious work: review of 161 document sets, 47 expert reports, 20 depositions, litigation of 30 motions in limine, and a 10-day jury trial, among other hearings and motion practice. The district court’s Brunzell analysis (difficulty, responsibility, skill, time, and results) was supported by substantial evidence (MEI–GSR).

In light of Capriati’s holding that a district court “may award the entire contingency fee as post-offer attorney fees under NRCP 68” when Beattie/Brunzell are satisfied, the court affirmed the award of $7,923,304.85 in attorney fees (the entire 50% contingency) plus $327,076.50 in costs.

6) The separate opinion: continuing skepticism about Capriati

Chief Justice Herndon concurred in affirming the verdict but dissented from the fee award, arguing:

The “entire contingency” approach erodes Beattie’s fourth factor by untethering the amount from work performed.
It conflicts with NRCP 68’s text allowing only “reasonable attorney fees … actually incurred by the offeror from the time of the offer.”
It unfairly saddles offerees with private contingent-fee bargains unknown to them at the time of rejection.

He would remand for calculation of reasonable fees incurred post-offer and invited reconsideration of Capriati under Stocks’ exception to stare decisis. The majority, however, expressly declined to revisit Capriati.

Impact

Excessive-damages challenges: Nevada trial courts reviewing non-economic damages for excessiveness may not compare awards to “similar” verdicts. Motion practice should focus on record-based indicators of passion or prejudice and legal error, not cross-case benchmarking. Large verdicts will be harder to disturb absent clear evidence of improper influence or legal error.
Closing argument boundaries: Counsel may forcefully counter comparative-fault themes without being accused of burden-shifting, but any argument about medical necessity or risk must be tethered to admitted expert testimony. If a party wants to argue an expert point, retain an expert.
Offer-of-judgment drafting and interpretation: NRCP 68 offers will be construed under contract principles and in context. When defendants are jointly represented and share a unity of interest, contextual cues (addressing correspondence to both, internal references to “defendants”) can render the offer applicable to each. Drafters should still be explicit to avoid avoidable litigation.
Fee-shifting leverage under NRCP 68: Capriati remains the law. A prevailing offeror on a contingency may obtain the entire contingency fee as post-offer fees if Beattie/Brunzell are satisfied. Defendants and insurers face substantial downside risk if they reject reasonable offers within policy limits where liability and damages exposure are significant.
Appellate preservation: Parties must maintain consistent evidentiary theories; new or reframed arguments risk waiver.
Prospects for future change: The separate opinion signals ongoing debate about Capriati’s compatibility with NRCP 68’s “actually incurred” language. Any doctrinal shift likely requires en banc reconsideration or rulemaking, but for now practitioners must plan under Capriati’s framework.

Complex Concepts Simplified

NRCP 59(a)(1)(F): Allows a new trial if the verdict was influenced by passion or prejudice. The movant must show a qualifying ground and resulting prejudice.
Abuse of discretion vs. de novo review: Abuse of discretion defers to the trial judge’s decision unless it rests on legal error or lacks evidentiary support. De novo review gives no deference; the appellate court decides the legal issue anew.
Comparative fault: A defense that reduces a plaintiff’s recovery by the percentage of the plaintiff’s own negligence.
“Objective criteria” in damages: Comparing a jury’s award to verdicts in other cases. Nevada forbids this for non-economic damages because pain and suffering are subjective.
NRCP 68 offer of judgment: A settlement proposal that, if rejected and not beaten at trial, triggers fee/cost-shifting penalties against the rejecting party from the time of the offer.
Beattie factors: The four-part test courts use to decide whether to award fees under NRCP 68 (good faith of claim; reasonableness of the offer’s timing/amount; reasonableness of rejection; reasonableness of the fee amount).
Brunzell factors: The criteria for deciding whether the amount of fees sought is reasonable (lawyer’s quality; difficulty/importance; time/skill and work performed; results achieved).
Contingency fee: A fee paid as a percentage of the client’s recovery, typically vesting only if the client prevails.
Unity of interest: When co-defendants are so aligned (e.g., vicarious liability, joint representation) that they are effectively treated as one for certain purposes.
Extrinsic evidence: Evidence outside the four corners of a document (e.g., correspondence, conduct) used to clarify intent if the document’s language is unclear.
Waiver on appeal: You must make the same argument in the trial court; changing the theory on appeal generally forfeits the issue.

Conclusion

Bellomo v. Roybal delivers two headline clarifications that will shape Nevada civil litigation. First, in reviewing claims of excessive damages for pain and suffering, trial courts may not look to “objective criteria” like comparable verdicts; doing so is inconsistent with the inherently subjective nature of such damages and risks legal error. Second, under NRCP 68, courts may validate offers addressed to one but intended for jointly represented co-defendants when context and extrinsic evidence show a unified intent, and—crucially—may award the entire contingency fee as post-offer attorney fees when Beattie and Brunzell are satisfied, consistent with Capriati.

The decision underscores the importance of record-grounded trial advocacy, precise offer-of-judgment drafting, and sober risk assessment when policy-limits offers are on the table. Although the separate opinion renews concerns about awarding entire contingency fees under NRCP 68, the majority’s adherence to Capriati cements the significant fee-shifting leverage that well-timed, well-calibrated offers of judgment provide to plaintiffs in Nevada.

Note: The majority recites a jury verdict of $14,126,607.74; the separate opinion references a slightly different figure. The discrepancy does not affect the Court’s legal analysis or holdings.