Kyla Asbury Jun. 12, 2014, 2:43pm

CARSON CITY, Nev. (Legal Newsline) - The Nevada Supreme Court has overturned a $6 million verdict against the Palms Casino Resort in Las Vegas in a lawsuit brought by a man who was allegedly injured there by a football fan diving for a souvenir.

Kristina Pickering, James Hardesty and Michael Cherry voted in the majority, with Pickering authoring the opinion.

At issue is the alleged negligence of Palms Casino Resort in allowing promotional actors to toss souvenirs into a crowd of patrons watching Monday Night Football at the casino's sports bar.

"Specifically, we must decide whether to extent the limited-duty rule that this court these facts," the June 5 opinion states. "We decline to do so, and thus hold there was no error in the district court's refusal to find...that Palms owed no duty of care."

However, a new trial is warranted due to evidentiary errors that affected the outcome of the proceeding, according to the opinion.

Enrique Rodriguez sued the Palms to recover damages for a knee injury he suffered while sitting in its sports bar watching Monday Night Football on television.

The injury occurred when another patron dove for a sports souvenir that Brandy Beavers, an actress paid by the Palms to dress as a cheerleader for the Monday Night Football event, had tossed into the group.

Rodriguez sued the Palms on a theory of negligence. The matter was tried before the court in a bench trial and the district court permitted several of Rodriguez's treating physicians to testify to the nature and severity of his condition, its causes and the appropriateness of treatment, both rendered to and recommended for him, according to the opinion.

Ultimately, the district court determined that the Palms was liable as a matter of law and awarded Rodriguez $6.05 million in damages. FCH1, the company doing business as Palms Casino & Resort, appealed the district court's decision.

The district court judge admitted and considered inadmissible testimony by Rodriguez's treating physicians, according to the opinion.

"Rodriguez did not provide a written NRCP 26 expert witness report for any of these physicians," the opinion states. "While a treating physician is exempt from the report requirement, this exemption only extends to 'opinions [that] were formed during the course of treatment.'"

One of Rodriguez's physician-witnesses, Dr. Joseph Schifini, treated Rodriguez for pain associated with his knee injury, but testified about orthopedic surgery; neurology and neurological science; podiatry; radiology; and damages

"Allowing Dr. Schifini to testify as he did without an expert witness report and disclosure was an abuse of the district court's discretion," the opinion states.

Rodriguez's remaining treating physician witnesses were also allowed to testify without requiring them to disclose expert reports, which was also "an abuse of the district court's discretion."

"As the Palms notes, the district court judge in this case has heard the evidence that should have been excluded and formed and expressed an opinion on the ultimate merits," the opinion states. "We therefore grant the Palms' request to have this case reassigned if remanded."

The Supreme Court reversed and remanded the case for reassignment and a new trial consistent with their opinion.

Nevada Supreme Court case number: 59630

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