No new trial in $5.9M rollover case against BMW

Jessica M. Karmasek Apr. 22, 2011, 9:40am


CARSON CITY, Nev. (Legal Newsline) - The Nevada Supreme Court last week reversed a district court's order granting a new trial in a case against car manufacturer BMW.

The district court granted passenger Alyson Roth, who was left a paraplegic after a single-car rollover, a new trial against both BMW and the car's driver, Jennifer Stapleton.

Roth obtained a $5.9 million judgment against Stapleton but lost on her product defect/crashworthiness claim against BMW.

The district court granted the new trial based on its finding that BMW's counsel repeatedly violated a pretrial order. The order in limine stemmed from Nevada's seatbelt statute. This statute requires adults riding in cars to wear seatbelts but adds that "a violation of (the statute is) not a moving traffic violation (and m)ay not be considered as negligence (or) misuse or abuse of a product or as causation in any (civil) action."

Because Roth claimed that she was wearing her seatbelt, yet was ejected, and suffered grave injury due to defects in the car's safety restraint system, the district court permitted BMW to defend with evidence and argument that Roth had not, in fact, been wearing her seatbelt. However, the court hedged this permission with a limiting instruction that told the jury it could consider the seatbelt evidence only in "evaluating (Roth's) claim(s) against BMW that the subject vehicle was defective and unreasonably dangerous," not "for any other purpose."

The district court found BMW's counsel went out of these bounds in voir dire, opening statement and closing argument, committing prejudicial misconduct that merited a new trial.

BMW appealed the district court's order.

The state's high court, in a ruling filed April 14, reversed the court's order. Justice Kristina Pickering authored the Court's opinion.

"For violation of an order in limine to constitute attorney misconduct requiring a new trial, the order must be specific, the violation must be clear, and unfair prejudice must be shown," it wrote.

"Here, the order did not limit the seatbelt evidence that could be introduced, only the arguments that could be made about that evidence. The order's parameters were far from clear -- as is Nevada law, generally, concerning seatbelt evidence in a crashworthiness case -- yet Roth did not object to any alleged violations by BMW of the order in limine until closing argument."

The Court said it couldn't say that the unobjected-to violations amounted to plain error, or that the two objected-to violations involved misconduct "so extreme" that the objection and admonishment did not remove its prejudicial effect.

"In reaching this conclusion, we reject as error the district court's legal determination that Roth's motion in limine acted as a continuous objection and hold instead that, for violation of an order in limine to constitute objected-to misconduct under Lioce, the complaining party must make a contemporaneous objection when the asserted violation occurs," it wrote.

Because the Court reversed the district court's order granting a new trial, it reversed the award of fees and costs to Roth and Stapleton as well.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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