Clark County District Court of Nevada. Carlos TORRES

Carlos TORRES, individually and as Special Administrator..., 2014 WL 6472353...

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2014 WL 6472353 (Nev.Dist.Ct.) (Trial Motion, Memorandum and Affidavit)District Court of Nevada.

Clark County

Carlos TORRES, individually and as Special Administrator of the Estate of Gladys Gonzalez, deceased, Plaintiff,v.

MARQUIS COMPANIES I, INC., dba Marquis Care Plaza Regency, an OregonCorporation; Does I-X and Roe Corporations 1-10, inclusive; Defendants.

No. 12A670359.April 21, 2014.

Dept No.: X

Marquis Companies I, Inc.'s Motion to Vacate Arbitration Award

S. Brent Vogel, Nevada Bat No. 006858, Alayne M. Opie, Nevada Bar No. 012623, Lewis Brisbois Bisgaard & SmithLLP, 6385 S. Rainbow Boulevard, Suite 600, Las Vegas, Nevada 89118, 702.893,3383, Fax: 702.893.3789, [email protected], [email protected], for Marquis Companies I, Inc. dba Marquis Care Plaza Regency.

Date of Hearing:

Time of Hearing:

Marquis Care Plaza Regency (“Marquis”), by and through its counsel, S. Brent Vogel and Alayne M, Opie of Lewis BrisboisBisgaard & Smith, LLP, hereby files this Motion to Vacate the Arbitration Award, The arbitration award should be vacateddue to:• The arbitrator's manifest disregard of the law

• The arbitration award is capricious and arbitrary

• The arbitrator erred in failing to grant the postponement of arbitration.

• There was evident partiality by the arbitrator toward Plaintiffs

• The arbitrator exceeded his powers

• The arbitration award was procured by undue means

Marquis requests that this Honorable Court remedy the elementary error committed at arbitration and dismiss Plaintiffs' claimfor their failure to prove their prima facie case, which was a clear cut disregard of the law by the arbitrator.

This Motion is based the papers and pleadings on file in this case, the complete arbitration record, the Memorandum of Pointsand Authorities submitted herewith and any argument adduced at the time of hearing on this matter.

Dated this 21 st day of April, 2014.

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LEWIS BRISBOIS BISGAARD & SMITH LLP

<<signature>>

S. BRENT VOGEL

Nevada Bat No. 006858

ALAYNE M. OPIE

Nevada Bar No. 012623

6385 S. Rainbow Boulevard, Suite 600

Las Vegas, Nevada 89118

Attorneys for Marquis Companies I, Inc. dba Marquis Care Plaza Regency

NOTICE OF MOTION

To: All Counsel

To: All Patties

Please take notice that the undersigned will bring DEFENDANT'S MOTION TO VACATE THE ARBITRATION AWARDon for hearing in the above-entitled Court, on the 05 day of. JUNE, at CHAMBERS a.m., in Department X.

Dated this 21 st day of April, 2014.


<<signature>>

S. BRENT VOGEL


ALAYNE M. OPIE




Attorneys for Marquis Companies I, Inc. dba Marquis Care Plaza Regency



MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

This claim for medical malpractice was filed by decedent Gladys Gonzalez's son, Carlos Torres, on October 18, 2012. He fileda nearly identical Complaint against St Joseph's Rehabilitation Hospital that same day making the same claims and seeking thesame alleged damages. That case is currently pending in front of Judge Cadish and is set for trial on October 13, 2014, CaseNo. 670360. This case is Case No. 670359.

The allegations against Marquis stem from then 84-year old Ms. Gonzalez's two residencies at Marquis, a skilled nursingfacility offering post-acute rehab and rehabilitation, from June 3, 2011 through July 11, 2011, and August 22, 2011 throughSeptember 24, 2011. Mr. Torres claimed that Marquis' staff and employees provided substandard care by not providing measuresand interventions to prevent skin breakdown. Mr, Torres also alleged that Marquis caused Ms. Gonzalez's health to declineand eventually caused her death. He made these allegations despite the uncontroverted evidence that Ms. Gonzalez's physicalcondition improved while at Marquis and she died almost two months after leaving Marquis.

This matter was set for arbitration based upon the contract with Plaintiffs to arbitrate disputes. The arbitration clause directedthat arbitration be with the National Arbitration Forum (“NAF”), however, the NAF no longer accepted consumer cases at thetime arbitration was requested in this matter. Thus, at the suggestion of Plaintiffs' counsel the matter was set with retired judgeJerry Carr Whitehead. Plaintiffs' counsel did not disclose his apparent close relationship with the arbitrator. As the arbitrationneared, Marquis became concerned the arbitrator may be biased in favor of Plaintiff based on statements by Plaintiffs' counseland the arbitrator's pre-hearing rulings.

On the eve of arbitration, the arbitrator permitted Plaintiffs to disclose an additional and cumulative expert over Marquis'objection. Marquis had alread deposed Plaintiffs' two other timely disclosed experts. This forced Marquis to have to deposePlaintiffs' new and second nursing standard of care expert, Mary Shelkey, APRN, only twelve days before the arbitrationhearing. Regardless, as it happened, Nurse Shelkey testified that she would not provide any causation testimony at the time ofarbitration. Ex, A, Deposition of Mary Shelkey at 29:13-25.

Out of an abundance of caution and concern regarding the arbitrator, Marquis retained the services of a court reporter totranscribe the entire arbitration proceedings. Arbitration commenced on January 23 and 24, 2014.

Just as Marquis suspected, Plaintiffs failed to present expert testimony stated to a reasonable degree of medical probabilitythat Marquis' alleged breach in the standard of care caused damages; a most fundamental element of Plaintiffs' prima faciecase. See Prabhu v. Levine, 112 Nev. 1538, 1543 (1996); Perez v. Las Vegas Medical Ctr., 107 Nev. 1, 4 (1991). At the closeof Plaintiffs' case in chief, Marquis moved to dismiss Plaintiffs' case for Plaintiffs' failure to prove their prima facie case, i.e.causation testimony. Marquis' counsel educated the arbitrator on the applicable Nevada law at length, Not only did the arbitratorreceive an oral explanation of what the law was and what is required, but Marquis' counsel physically provided him with thecase law on point. The arbitrator took Marquis' motion under submission and the arbitration continued.

At the close of evidence, still not having heard testimony to a reasonable degree of medical probability that Marquis' allegedbreach in the standard of care caused Plaintiffs' damages, Marquis renewed its motion. After closing arguments the parties andarbitrator went their separate ways. Over a month later, the parties received the Arbitrator's Findings of Fact, Conclusions ofLaw and Decision (“Arbitration Award”). Ex B. Despite the fact that Plaintiffs failed to present any causation evidence, thearbitrator awarded Plaintiffs $476,500. Id.

Marquis seeks to vacate the entire award for several reasons.

• The arbitrator manifestly disregarded the law

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• The Arbitration Award is capricious and arbitrary

• The arbitrator erred in failing to grant the postponement of arbitration

• There was evident partiality by the arbitrator toward Plaintiffs

• The arbitrator exceeded his powers

• The Arbitration Award was. procured by undue means

Marquis requests that this Honorable Court remedy the elementary error committed at arbitration and dismiss Plaintiffs' claimfor their failure to prove their prima facie case, which was a clear cut disregard of the law by the arbitrator as evidenced bythe arbitration transcript.

II. LEGAL STANDARD OF REVIEW

“A district court's review of an arbitrator's actions is far more limited than an appellate court's review of a trial court's actions.”Bohlmann v. Byron John Printz and Ash, Inc., 120 Nev. 543 (2004) (overruled by Bass-Davis v. Davis, 112 Nev, 442, onpresumption grounds only). “Despite the limited judicial review available in arbitration cases, the district court nonethelesshas the authority and obligation to review the award before rubber-stamping it” Casey v. Wells Fargo Bank, N.A., 290 P.3d265, 267 (2012).

The District Court may vacate an arbitration award under either statutory or common law ground. The party seeking to attackthe validity of an arbitration award has the burden of proving, by clear and convincing evidence, the statutory or common-lawground relied upon for challenging the award. Health Plan of Nevada, Inc. v. Rainbow Medical, LLC, 120 Nev. 689, 695 (2004).

NRS § 38.241 states in pertinent part that upon motion to the court by a party to an arbitral proceeding, the court shall vacatean award made in the arbitral proceeding if:(a) The award was procured by corruption, fraud or other undue means;

(b) There was:

(1) Evident partiality by an arbitrator appointed as a neutral arbitrator,

(2) Corruption by an arbitrator, or

(3) Misconduct by an arbitrator prejudicing the rights of a party to the arbitral proceeding;

(c) The arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement...so as to prejudicesubstantially the rights of a party to the arbitral proceeding;

(d) The arbitrator exceeded his or her powers,

NRS 38.241 (2009)(emphasis added).

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In addition to the statutory grounds for vacating an award, the Nevada Supreme Court has also recognized common law groundsfor vacating an award. “There are two common-law grounds recognized in Nevada in which a court may review private bindingarbitration awards: (1) whether the award is arbitrary, capricious, or unsupported by the agreement; and (2) whether the arbitratormanifestly disregarded the law.” Clark County Educ. Ass'n v. Clark County School Dist., 112 Nev. 337, 341 (2006), While anarbitrator may have discretion in general, “that discretion is not without limits. He is confined to interpreting and applying theagreement, and his award need not be enforced if it is arbitrary, capricious, or unsupported by the agreement.” Id. An arbitratoris found to be acting capriciously or arbitrarily if his or her findings are upon “review,” not “supported by substantial evidencein the record.” Id. at 343-44 (emphasis added).

“Judicial inquiry under the manifest-disregard-of-the-law standard is extremely limited.” Boblamnn at 547 (citations andquotations omitted), “Manifest disregard of the law is something beyond and different from a mere error in the law or failureon the part of the arbitrators to understand or apply the law. A reviewing court should not concern itself with the correctness ofan arbitration award and thus does not review the merits of the dispute. In other words, the issue is not whether the arbitratorcorrectly interpreted the law, but whether the arbitrator, knowing the law and recognizing that the law required a particularresult, simply disregarded the law.” Id. (citations and quotations omitted). This Honorable Court's inquiry on review thereforeis limited to determining if the arbitrator “appreciat[ed] the significance of clearly governing legal principles but decided toignore or pay no attention to those principles.” Clark at 344.

In applying these two common law standards, the Nevada Supreme Court vacated an award in Winchinsky v. Mosa.

In Winchinsky v. Mosa (109 Nev. 84 (1993)) we vacated an arbitrator's award of compensatory and punitivedamages because of the “lack of evidence to support the arbitrator's findings” and because “the arbitratordemonstrated a manifest disregard of the law.” Thus, Winchinsky properly demonstrated that the arbitrary-and-capricious standard limits a reviewing court's consideration to whether the arbitrator's findings aresupported by substantial evidence, while the manifest-disregard-of-the-law standard limits the reviewingcourt's concern to whether the arbitrator consciously ignored or missed the law.

Clark at 342.

Similar to Winchinsky, both common law grounds to dismiss the Arbitration Award exist. The arbitrator demonstrated a manifestdisregard of the law and the transcript in this matter proves it. The arbitrator was provided a written copy of the applicable caselaw on causation testimony (Morsicato v. Sap-On, 111 P.3d, 1112 (Nev. 2005)), provided the testimony from Plaintiffs' expertswhich lacked any causation testimony, and he ignored the law as it related to the uncontroverted evidence (or lack thereof).Additionally, the arbitrator's findings are unsupported by even slight evidence in the record. Accordingly, the ArbitrationAward is arbitrary, capricious and must be vacated on common law grounds. Furthermore, statutory grounds exist to vacate theArbitration Award. It was procured by undue means, there was evident partiality by the arbitrator toward Plaintiffs, the arbitratorexceeded his powers, and erred in failing to grant a postponement of arbitration. For any of these reasons, the Arbitration Awardmust be vacated,

III. THE ARBITRATOR MANIFESTLY DISREGARD THE LAW

Generally, to prove malpractice, the plaintiff must first establish the accepted standard of medical care or practice, and thenmust show that the conduct departed from that standard and legally caused the injuries suffered. Fernandez v. Admirand, 108Nev. 963, 968-969 (1992). More specifically, to prevail in a malpractice action, the plaintiff must establish the following: (1)that the defendant's conduct departed from the accepted standard of medical care or practice; (2) that the defendant's conductwas both the actual and proximate cause of the plaintiff's injury; and (3) that the plaintiff suffered damages. See Prabhu at 1543;see also Perez at 4 (emphasis added). Most importantly, a prima facie case for medical malpractice must include admissibleexpert testimony:







NRS 41A.100 Required evidence; exceptions; rebuttable presumption of negligence.

1. Liability for personal injury or death is not imposed upon any provider of medical care based on alleged negligence in theperformance of that care unless evidence consisting of expert medical testimony ... is presented to demonstrate the allegeddeviation from the accepted standard of care in the specific circumstances of the case and to prove causation of the allegedpersonal injury or death[.]

2. Expert medical testimony ... may only be given by a provider of medical care who practices or has practiced in an area thatis substantially similar to the type of practice engaged in at the time of the alleged negligence.

The Nevada Supreme Court has long held that medical experts testifying about causation of injuries must state their opinionsto a reasonable degree of medical probability; speculative causation testimony is insufficient to support a finding of causation.United Exposition Serv. Co. v. SIIS, 109 Nev. 421, 424 (1993). More recently, in Morsicato v. Sap-On Drug Stores, Inc., theNevada Supreme Court “confirm[ed] that medical expert testimony on the issue of causation must be stated to a reasonabledegree of medical probability.” 121 Nev. 153, 1555 (2005)(emphasis added). The Court wrote:Since 1989, this court has held that ‘a medical expert is expected to testify only to matters that conform to the reasonable degreeof medical probability standard.’ Furthermore, in dictum, this court has observed that expert testimony regarding causationmust also rise to this level of certainty. As the Pennsylvania Supreme Court has recognized, one rationale for requiring suchspecificity with expert opinions is that ‘if the plaintiffs medical expert cannot form an opinion with sufficient certainty so asto make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certaintyso as to make a legal judgment.’

Furthermore, a prima facie case for medical malpractice is not demonstrated upon the presentation of evidence that a patientdied after defendant breached an established standard of care. Fernandez at 972. Plaintiff also has to show that defendant'sconduct was the legal cause of death. Id. Even where it has been established that the defendant's conduct has been one ofthe causes of plaintiff's injury, there remains the question of whether defendant will be legally responsible for the injury, themain consideration in such circumstances being foreseeability. Id. citing Sims v. General Telephone & Electric, 107 Nev, 516,524-25, (1991).

At the close of Plaintiffs' case in chief, Marquis moved to dismiss pursuant to NRCP 41 (b) based upon severe deficiencies inPlaintiffs' case. Plaintiffs did not meet their burden of proving their most basic prima facie case. According to NRS § 41A.100and Morsicato, Plaintiffs were required to present expert testimony that supported their allegation that Marquis breached thestandard of care and that it was this breach that caused Plaintiffs' injury. Pursuant to Nevada Supreme Court's holding inMorsicato, those opinions were required to be stated to a reasonable degree of medical probability. Plaintiffs failed to present thisbasic evidence. Therefore, pursuant to Morsicato, the arbitrator was required to dismiss at the close of Plaintiffs' case in chief.

Not only did Marquis' counsel move to dismiss the case at the close of Plaintiffs' case in chiefs but it renewed its motion at theclose of evidence. Marquis physically handed the arbitrator the Morsicato opinion and explained why Plaintiffs failed to provethe most basic elements of their prima facie case. Additionally, Marquis cited Fernandez v. Admarand and Prabhu v. Levine,explaining that causation testimony was requited and had to be given to a reasonable degree of medical certainty. Even thoughthe arbitrator, a lawyer and retired judge, recognized that the law required a particular result, he still found in Plaintiffs' favor.The arbitrator manifestly disregarded the law and the Arbitration Award must be vacated,

Plaintiffs presented three experts at the time of arbitration: (1) nursing standard of care expert, Mary Shelkey, APRN, (2)Forensic Pathologist Rexene Worrell, M.D. (via telephone), and (3) Neurologist Russell Shah, M.D. (via deposition testimony).None of these experts testified that the alleged breach in the standard of care caused Ms. Gonzalez's death or caused Plaintiffs'damages. As a matter of law, Plaintiffs' lawsuit should have been dismissed.

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a. Mary Shelkey, APRN

Nurse Shelkey was Plaintiffs' only expert to testify in person at the time of arbitration. She was retained and disclosed byPlaintiffs on December 2, 2013, just weeks before the arbitration was to commence. According to Plaintiffs' disclosure, NurseShelkey was expected to testify regarding “...aspects of elder abuse, including, but not limited to elder abuse, the standard ofcare and patient neglect...” Ex. C. Pursuant to Plaintiffs' own disclosure, Nurse Shelkey was not expected to testify regardingcausation. Id.

On January 10, 2014, Marquis' counsel traveled to Seattle, Washington, to depose Nurse Shelkey, During her deposition sheconfirmed under oath that she would not be offering “any causation” opinions at the time of arbitration.Q: You are not a physician; correct?

A: That's correct

Q: You will not be offering any causation testimony at the time of arbitration; correct?

A: That's correct.

Q: Might be a duplicative question, but you wont be offering any opinion at the time of arbitration as to what caused Ms,Gonzalez's death; correct?

A: That's correct. I will not address any causation.

Q: Because you're not a medical doctor?

A: That's right. If you're looking for medical causation, I cannot address that in this particular capacity.

Ex. A at 29:13-25 (emphasis added); see also Ex D, Arbitration Transcript at 67:22-68:11. Yet, during arbitration, Plaintiffsrepeatedly attempted to elicit causation opinions from Nurse Shelkey, which Marquis' counsel objected to, and the arbitratorsustained.Q: Now, what would you say this treatment or lack thereof from June 3rd through July 11th, would you say it was a contributingfactor or the cause of any adverse effect or decline of Gladys?

A: Well, she clearly - -

MR. VOGEL: Hold on. I'm going to object on foundation and if I could, Your Honor, she testified at deposition she won't begiving any causation opinions and that she doesn't like the foundation. I can read directly from her testimony if you'd like,

I'm going to object to her giving any sort of causation opinions here.

MR. VOGEL: Your Honor, I'm happy to read, I'll quote it for you, if you'd like.

May I read you the testimony?

ARBITRATOR WHITEHEAD: You may.



MR. VOGEL: I'm starting on Page 29, Line 15: Question: You will not be offering any causation testimony at the time ofarbitration, correct? Answer; That's correct.

Question: Might be a duplicative question, but you won't be offering any opinion at the time of arbitration as to what causedMs. Gonzalez's death; correct?

Answer: That's correct. I will not address any causation.

Question: Because you're not a medical doctor?

Answer: That's right. If you're looking for medical causation, I cannot address that in this particular capacity.

So I'm going to ask that she not be permitted to provide any type of causation testimony.

MR. SAGGESE: The response to that is that we don't want her to provide any medical cause of death and that's what that wasabout It's strictly related to cause of death and that the medical doctor is the proper individual to provide cause of death. RexeneWorrell for us and Dr. Vu for them.

So she agreed, I'm not going to be testifying as to cause of death, it's a medical conclusion. And I'm asking her nursing experiencewith geriatrics, the decline of this particular individual versus cause of death, that's what that was.

MR. VOGEL: I will not be providing any causation testimony at the time of arbitration.

MR. SAGGESE: As it related to cause of death.

MR. VOGEL: That's not what she said.

MR. SAGGESE: I just heard you read it.

MR. VOGEL: I'll read it again.

Question: You will not be offering any causation testimony at the time of arbitration, correct?

That's correct.

Question: Might be a duplicative question, but you won't be offering any opinion at the time of arbitration as to what causedMs. Gonzalez's death; correct?

Answer: That's correct. I ‘will not address any causation,

Question: Because you're not a medical doctor?

Answer: That's right. If you're looking for medical causation -- she didn't qualify it as to death - - I cannot address I cannotaddress that in this particular capacity,

She's not a medical doctor, she's not qualified to give causation under Nevada law. So I ask that she not be permitted to offerit here.



MR. SAGGESE: And, again, in the context, I know he wasn't at the deposition, and he's just reading from it, but in the context,they were talking about cause of death, did this cause her death, did this cause her death.

ARBITRATOR WHITEHEAD: Well, the questions and answers being read just talked about causation.

MR. SAGGESE: Cause of death.

ARBITATOR WHITEHEAD: Well, what I heard read to me is not --

MR. VOGEL: Page 29, Your Honor

ARBITRATOR WHITEHEAD: The way I read this is that first she was asked any causation testimony at the time of arbitration,and the answer is: That's correct.

It's followed up by: It might be a duplicative question, but you won't be offering any opinions as to what cause the death?That's correct.

I sustain the objection.

Ex D at 66:20-67:6; 67:12-13; 67:17-69:23; 70:3-5; 70:9-71:3 (emphasis added). Without a doubt, Nurse Shelkey was prohibitedfrom offering any causation testimony at arbitration. Nevertheless, that didn't prevent Plaintiffs from attempting to elicitcausation testimony from her on multiple more occasions prompting numerous objections by Marquis' counsel, all of whichwere sustained by the arbitrator.Q: Back up a little. Is it your opinion that the additional pressure sores that developed on Ms. Gonzalez, even after she was outof the Marquis facility, is it your expert opinion that they could be the fault of poor nutrition or deficiencies at Marquis?

MR. VOGEL: I'm going to object to foundation. You already ruled she's not qualified to offer that opinion. We already wentthrough her testimony and she's not offering those opinions.

ARBITRATOR WHITEHEAD: I don't think I ruled that she wasn't (regarding qualifications). I turned to counsel for a responseand he just said he would rephrase the question.

MR, VOGEL: No, I'm talking about he just asked her for a causation opinion. You're already ruled that she can't offer causationopinions. This is when we reviewed the deposition transcript.

ARBITRATOR WHITEHEAD: I agree. I think that statement in the deposition stops her testimony on causation.

Q: ... Does the lack of proper nutrition contribute to the formation of a decubitus ulcer?

A: Yes, and let me point out two scientific

MR. VOGEL: Your Honor, again, she's giving causation testimony.

MR. VOGEL: Contribute to the formation of a decubitus ulcer, that's a causation opinion.

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MR, VOGEL: The bottom line is she already testified in deposition she's not offering those opinions. She, herself, said she'snot qualified when asked the question at deposition. It's a causation opinion.

And, Your Honor, this goes back. There is a long, long tine of cases that says that in medical malpractice cases such as this.,malpractice cases -- actually, it doesn't even have to be medical malpractice. In cases when you're giving testimony on causation,it had to be to a reasonable degree of medical probability by a physician.

It goes back, Fernandez versus Admaran, Prabhu versus Levine, Morsicato versus Sav-On. There's a long, long line of casesthat says that.

She's not qualified to give that testimony. They need to have a medical doctor to do it,

ARBITARTOR WHITEHEAD: At this point, I will sustain the objection.

ARBITRATOR WHITEHEAD: Just to guide you, when you were talking generally on the subject, I didn't have the problems,When you specifically limit it to this client, this patient, is when I have problems with it

MR. SAGGESE: Okay. If I could read this?

ARBITRATOR WHITEHEAD: Sure.

MR. SAGGESE: (reading from deposition of Shelkey) Question by opposing counsel: So you're saying relating additionalpressure ulcers or the additional ulcers that she obtains while she's outside of the Marquis facility to the care that she actuallyreceived in June and July at Marquis?

Yes, I would.

Is that what I'm hearing from you?

Absolutely. I would tell you that she was at higher risk because of them allowing her to become so debilitated and it worsensin the second residency, it's part of a cascade.

So I didn't object when they were asking that and no objection was preserve. So certainly that's admissible at this point, butwith that in the record, I'll move on.

Q: So, again, the condition from which she was discharged at Marquis, based on the poor care that she was receiving, do youbelieve that set up a cascade of a weakened state on behalf of Gladys Gonzalez?

MR. VOGEL: I'll make the same objections, Your Honor, lack of foundation. I don't know why they keep going over this.

MR. SAGGESE: It's part of the record objected to, so it's admissible.




MR. VOGEL: That's absolutely not true. We've already gone over the questioning about her foundation, she already testifiedshe's not qualified to do it Whether she offers opinions later on, it doesn't matter. She's already admitted under oath that she'snot qualified, she's not a physician, her testimony. I don't know why we keep going over the same ground.

ARBITRATOR WHITEHEAD: I guess he's saying that these are the questions you asked her in the deposition and if you didn'tthink she was qualified, why were you asking her?

MR VOGEL: That doesn't matter. You always ask the basic foundational questions. You can then explore whatever you wantin the deposition. She's already testified she doesn't like the foundation. She can offer whatever opinions she wants.

ARBITRATOR WHITEHEAD: I'm going to sustain the objection.

Ex. D at 90:12-6; 91:12-15; 91:23-24; 92:13-14; 92:25-93:16; 96:1-2; 96:13-97:9; 97:23-99:1 (emphasis added). Unequivocally,Nurse Shelkey was prohibited from offering any causation opinions at the time of arbitration. Despite Plaintiffs' counsel'sdesperate attempts to get some sort of causation testimony admitted, all causation opinions were precluded.

b. Rexene Worrell, M.D.

The next expert that Plaintiffs presented (via telephone) to testify was Forensic Pathologist, Rexene Worrell, M.D. Dr. Worrellwas personally hired by Plaintiffs to perform an autopsy on Ms, Gonzalez. She was not directed by the State of Nevada toperform one. Dr. Worrell testified that the cause of Ms. Gonzalez's death months after she was discharged from Marquis was“due to necrotizing bronchopneumonia and stage IV purulent decubitus ulcerations, complicated by sepsis and multisystemorgan failure.” Ex. D at 170:2-8. What she did not testify to, and could not testify to, was that Marquis' alleged breach in thestandard of care caused Ms. Gonzalez's death. In other words, Dr. Worrell did not testify to a reasonable degree of medicalprobability that Marquis' conduct was both the actual and proximate cause of Plaintiffs' injury; a basic element of Plaintiffs'prima facie case. See Prabhu at 1543.Q: Just so I'm clear, I want to make it perfectly clear, so you cannot say whether or not any of the care provided by marquisCompany caused Mrs, Gonzalez' death, is that accurate?

A: That's true.

Q: ... So you can't state to any reasonable degree of medical probability that the care and treatment provided by MarquisCompany caused Mrs. Gonzalez' death, correct?

A: Right, that's what I said,

Ex. D at 173:9-13; 173:18-22. Dr. Worrell was unable to provide testimony to a reasonable degree of medical probability thatMarquis' conduct was both the actual and proximate cause of Plaintiffs' injury for multiple reasons: First, Plaintiffs did notprovide her with Ms. Gonzalez's medical records from Marquis or any other healthcare provider, therefore, she had not reviewedthem and had not relied on them.Q: And is it also fair to state that in rendering your opinions in this case, you did not review any of the medical records, isthat accurate?

A: That's true.

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Ex. D at 172:4-7. Second, not only was Dr. Worrell not privy to Ms. Gonzalez's medical course at Marquis, she had no knowledgeof her medical course whatsoever.Q: And I guess as an addendum to that, you don't know what Mrs. Gonzalez's condition was when she left Marquis Companyback in September of 2011, is that accurate?

A: At the time I did the autopsy, yes. No, I did not know her condition.

Q: And you are aware that almost two months passed between the time she left Marquis Company and her death?

A: Yes.

Q: And you don't know whether or not any of the decubitus ulcers that you found on autopsy were present at the time she leftMarquis Company, is that correct?

A: Correct.

Q: You don't know whether any decubitus ulcers, if any, were infected at the time she was discharged from Marquis Company,correct?

A: I did not examine her at that time, correct.

Ex. D at 173:23-174:16. Last, Dr. Worrell is not a clinician, she is not qualified to render opinions regarding the standard of carefor a skilled nursing facility, and does not offer opinions regarding whether a breach in the standard of care caused a death.Q: ... As part of your practice, you do not treat patients, correct?

A: No, I'm not a clinician.

Q: Is it fair to state you are not qualified to render opinions regarding the standard of care for a skilled nursing facility?

A: No.

Q; So I'm correct?

A: Yes.

Q: So is it fair to state that you can't say whether or not any alleged breach of the standard of care by Marquis Company causedthe death of Mrs. Gonzalez?

A: I would never say that in any case, I don't testify on care unless it's an obvious gross surgical event, malpractice where anaccident occurred during surgery that I see anatomically, but I don't judge clinical treatments, I'm not a clinician.

Q: Just so I'm clear, I want to make it perfectly clear, so you cannot say whether or not any of the care provided by MarquisCompany caused Mrs, Gonzalez' death, is that accurate?

A: That's true.





Ex. D at 171:6-8; 171:23-172:3; 172:25-173:13 (emphasis added). Indisputably, Dr. Worrell “can't say” who is responsible foror who caused Ms. Gonzalez's death, if anyone.Q: You can't say to any reasonable degree of medical probability that my client, Marquis Company, caused this patient's death,is that accurate?

A: Is this a twist on a question you already asked me?

Q: No, it's the same one I asked before. I just wanted you to say it one more time.

A: Infected decubitus ulcers resulted in necrotizing bronchopneumonia and sepsis leading to multisystem organ failure in herdeath. Now, who's responsible for that, I can't say.

Ex. D at 177:1-11 (emphasis added).

c. Russell Shah, M.D.

The next and last expert presented by Plaintiffs was Neurologist Russell Shah, MX). via select portions of his deposition. Dr.Shah testified that his focus was on “seeing if the patient [had] any pain and did she experience any pain. They just want to knowfrom a neurology point of view, was the patient in a persistent vegetative state or was the patient not in a persistent vegetativestate.” Ex, D at 185:5-10, Similar to Dr. Worrell's testimony, Dr. Shah's deposition is devoid of any causation opinions as theyrelate to the medical care and treatment Marquis provided Ms. Gonzalez. Specifically, Dr. Shah could not, and did not, testifyto a reasonable degree of medical probability that Marquis' alleged breach in the standard of care caused Plaintiffs' damages. Infact, Dr. Shah did not even know who or what Marquis was and was not aware of Ms. Gonzalez's medical course at Marquis.Q: Do you have any opinions specifically against Marquis?

A: I don't even know who -- I mean, again, my opinion is not about anything except just her state, was she feeling pain.

Q; Are you aware of Ms. Gonzalez' overall medical condition as it relates to her ulcers when she was discharged from Marquison the second time?

A: What's the question? I'm sorry, I know she's sick, she's in the hospital, and she has a lot of medical problems, but whatquestion are you asking specifically?

Q: In regards to the decubitus ulcers, do you know when Ms, Gonzalez was discharged from Marquis on September 24, 2011,do you know the state of her ulcers at that specific moment?

A: You know, there were a whole bunch of records about them doing some kind of planning. I guess they do an interdisciplinarykind of conference plan about ulcers and wound care, but I didn't get into that too much. I mean, I can't remember right now.And, again, I don't participate in those wound care -- I would presume that they have a team of people trying to treat ulcers,

Q: If you can give me a yes or no though. Do you know the state of her ulcers when she was discharged from Marquis onSeptember 24, 2011?

A: I don't know...


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Ex. D at 205:21-25; 208:7-209:1; 213:11-14.

i. The Arbitrator Manifestly Disregarded The Law In Failing To Grant Marquis' Motion To Dismiss Not Once, ButTwice

The arbitrator manifestly disregarded the law because he knew the law required a particular result, yet simply disregarded itand found in favor of Plaintiffs. See Bohlamnn at 547. It is irrefutable that the arbitrator knew the law and recognized that itrequired a particular result. Marquis' counsel physically and verbally provided the arbitrator with the law on multiple occasions.On day two of arbitration, Plaintiffs rested. Ex. D at 218:22-24. Marquis immediately moved to dismiss pursuant to Rule 41(b).Id. at 218:25-219:7. Marquis' counsel argued that Plaintiffs failed to provide a prima facie case of negligence against Marquisas Plaintiffs' were required to “present evidence of duty, breach, causation, and damages. [However,] [t]hey have no evidenceof causation.” Id. at 219:10-14. Marquis' counsel not only referenced the Morsicato case on point, explained what the NevadaSupreme Court held, laid out the facts in the Morsicato case, and provided analysis regarding the case at hand, but they physicallyprovided a copy of the Morsicato case to the arbitrator.First of all, Your Honor, they've rested, they've given all the evidence they intend to offer in this case. They have not provideda prima facie case of negligence against my client

They have to present evidence of duty, breach, causation and damages. They have no evidence of causation.

The testimony of Ms. Shelkey only had to do with standard of care, and as you're aware, she was not permitted to testify becauseshe lacked foundation to give any sort of causation opinion.

They also had Rexene Worrell testify. She was able to testify what she thought the cause of death was, but she had no opinion,whatsoever, as to whether or not any of the care and treatment provided by my client caused that death or injury.

Based on Morsicato v. Sav-On, it's required that they provide expert testimony regarding standard of care and causation to areasonable degree of medical probability. I've got a copy of the case for you.

The Morsicato case was a pharmacy malpractice case. The Supreme Court reviewed the standards required for expert testimonyin proving malpractice cases, pharmacy, medical, etcetera, which would encompass skilled nursing facility cases and theirconclusion was that expert medical testimony regarding causation must be stated to a reasonable degree of medical probability.

Based on the evidence they've presented in this case, they haven't met that prima facie burden of causation. There is no evidenceof it anywhere.

So it was Shelkey or Worrell, and neither one of them talked about causation.

In fact, I think I asked Dr. Worrell three times, you can't state to any reasonable degree of medical probability whether or notMarquis caused her death. She said, that's correct.

So based on that I think we're entitled to a directed verdict. They haven't met the prima facie case.

Ex. D at 219:8-220:14; 220:18-221:1.

Marquis' counsel repeatedly raised the flaws in Plaintiffs' prima facie case on the record, and moved to dismiss Plaintiffs' casetwice based upon those evidentiary failures. Plaintiffs' case was clearly devoid of causation testimony. The arbitrator appreciated

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this fact as it was his own rulings that precluded Plaintiffs from eliciting causation testimony from Nurse Shelkey. Furthermore,the arbitrator specifically stated that only causation testimony accepted from Plaintiffs was a statement made by Dr. Worrellthat Ms. Gonzalez died as a result of toxic blood or septic blood in relation to decubitus ulcers and the infections in the decubitusulcers. Ex. D at 480:20-481:1. That's it; Plaintiffs' presented no additional admissible causation testimony.

The arbitrator was well informed of the law, he recognized it, but simply failed to follow it. The arbitrator undoubtedly“appreciate[ed] the significance of the clearly governing legal principles but decide[d] to ignore or pay no attention to thoseprinciples.” Clark at 344; citing Graber v. Comstock Bank, 111 Nev. 1142, 1428 (1995). At the close of evidence, just priorto the parties presenting closing arguments, judge Whitehead stated,The next thing is I want to make one comment on where I am on the evidence, which doesn't cause anybody not to be able toargue against me why I'm an idiot on it, but basically as far as I'm concerned, the record keeping for this case by the defendantwas very poor and I think it will be very difficult to change my thoughts on that, but where I'm much more interested in iswhether their care caused injuries that showed up on her death.

I also accept the position that the ulcers were a factor in her death, but whether it was the 54-day gap after discharge and hercare during it that caused the death or not, that, to me, is where I am and if we get by that, the monetary compensation.

Ex. D at 440:9-22 (emphasis added). After hearing Marquis' motion to dismiss and having been physically and verbally providedthe controlling Nevada law and analysis, here, the arbitrator is plainly informing the parties that Plaintiff failed to present therequired causation testimony. Additionally, here, the arbitrator conveys to the parties that he appreciates the significance of thelaw; that as part of Plaintiffs' prima facie case, Plaintiffs must establish that Marquis' conduct was both the actual and proximatecause of the Plaintiffs' injuries, and without this proof, there are no damages.

The arbitrator stated in his own words that the only causation related testimony he considered from Plaintiffs was Dr. Worrell'sstatement that Ms. Gonzalez died from sepsis in relation to decubitus ulcers. Plaintiffs presented no testimony to a reasonabledegree of medical probability that Marquis' alleged breach in the standard of care proximately and actually caused Plaintiffs'sepsis and death two months after discharge from Marquis. The arbitrator was physically and verbally provided the law, andalthough the arbitrator appreciated the significance of the law and elements of Plaintiffs' prima facie case, the arbitrator failed togrant Marquis' motion. The arbitrator did not merely commit an error in applying the law; he willfully ignored it. Accordingly,the Arbitration Award must be vacated.

ii. The Arbitrator Manifestly Disregarded The Law In Finding In Favor of Plaintiffs

The arbitrator manifestly disregarded the law in finding that Plaintiffs presented a prima facie case for malpractice, which is theonly explanation for the arbitrator ruling in favor of Plaintiffs. Despite the fact that the arbitrator, in his own words, stated thatthe only causation testimony accepted from Plaintiffs was Dr. Worrell's statement that Ms. Gonzalez died from sepsis in relationto decubitus ulcers and his rulings that Ms. Shelkey was precluded from presenting any causation opinions, he determinedthat Marquis caused Ms. Gonzalez's death. There was absolutely no evidence at arbitration that Marquis' alleged breach in thestandard of care caused Plaintiffs' damages, let alone any evidence of this allegation stated to a reasonable degree of medicalprobability. Plaintiffs certainly did not provide the requisite testimony. Yet, in the Arbitration Award, the arbitrator states,The Plaintiff asserted that the lack of positioning, care, poor nutrition and hydration from Marquis during her 54-day stay setin motion the pressure ulcers which contributed to her pain and discomfort and ultimately caused her death.

The care received at Marquis was a contributing factor to her death.

Ex B at p. 3 and 9. The arbitrator's ruling defies logic and Nevada law. The record is devoid of the required expert medicaltestimony to support the arbitrator's finding that Marquis' care caused or contributed in any way to Mrs. Gonzales' death.









On the other hand, the only causation opinions provided to a reasonable degree of medical probability directly contradict thearbitrator's rulings. The only expert witness that testified at arbitration who was qualified to offer and provided proper causationopinions to a reasonable degree of medical probability was Marquis' expert, Dr. Vu. Dr. Vu is Board Certified in InternalMedicine and Geriatrics and testified at arbitration. He was the only medical doctor who testified at arbitration who reviewedand knew Ms. Gonzalez's medical course. He was the only expert witness who had foundation to render proper causationopinions. Ex D at 226:25-227:20. He testified at length and stated multiple times, to a reasonable degree of medical probability,that the medical care and treatment Ms. Gonzalez received at Marquis did not cause Plaintiffs' damages.Q: Do you have an opinion as to the care and treatment that was provided by Marquis during that time frame?

A: From June until July, I didn't have any negative opinions about the care provided. I think it met standards of care and Ithought the patient improved in several ways during that admission from June 3rd until July 11th or July 12th.

Q: So based on your overall review of the records and the improvement of the patient's decubitus ulcer during the time she wasat Marquis Company during that first admission in June and July, do you have an opinion to a reasonable degree of medicalprobability whether or not that care and treatment was proper?

A: I did believe that she received proper care during that period at Marquis.

Q: And do you have an opinion to a reasonable degree of medical probability whether or not the treatment at Marquis Companycaused any injury to the patient?

A; I don't believe any injury was caused by the care rendered or not rendered by Marquis staff at that interval.

Q; Is that your opinion to a reasonable degree of medical probability?

A: Yes, sir.

Q: Did you see evidence in the chart that she was not being cared for properly?

A: I did not

Q: Are these your opinions to a reasonable degree of medical probability?

A: Yes, sir.

Q: Have all the opinions you have rendered been to a reasonable degree of medical probability?

A: Yes, sir.

Q: Based on your education, training, experience and review of the records in this case, did the care and treatment that wasprovided by Marquis cause or increase any of the decubitus ulcers in Ms. Gonzalez?

A: I don't believe so.





Q: Did any of the care and treatment that Marquis provided cause or increase the decubitus ulcers after she left the facility?

A: I don't believe so.

Q: When you review records in a case, can you assess the quality of care given by the overall improvement in how the patientdoes?

A: I think it's safe to say that if certain conditions that preexisted their entering a certain facility improve or remain stable despitegrave medical illness, you can assume that in whole the care rendered was adequate and good.

Q: Is that your opinion of what happened in this case?

A: That is.

Q: Is that your opinion to a reasonable degree of medical probability?

A: Yes, sir.

Ex D at 238:23-25; 239:5-9; 254:18-255:11; 261:23-262:3; 266:11-13; 312:847; 312:23-313:11 (emphasis added).

The arbitrator knew the law, recognized it required a specific result, was provided extensive testimony contrary to his rulings,yet he still found in favor of Plaintiffs. Accordingly, the arbitration manifestly disregarded the law, the evidence does not supportthe arbitrator's findings, and the award must be vacated.

iii. The Arbitrator Manifestly Disregarded The Law By Awarding Damages

Plaintiffs failed to prove their prima facie case and therefore, were not eligible for any compensation. Absent sufficient andproper proof of each element of Plaintiffs' prima facie case, the issue of damages is moot. A party must first be injured tobe “entitled to compensation commensurate with his loss.” Dinwiddle Const. Co, p. Campbell, 81 Nev. 469, 476-77 (1965).Without negligence or medical malpractice, the analysis stops. You do not move on to damages. The arbitrator manifestlydisregarded the law by awarding compensatory damages and the award must be vacated.

Likewise, the arbitrator manifestly disregarded the law by awarding the Estate $50,000 for pain and suffering and it must bevacated. Plaintiffs failed to present any evidence stated to a reasonable degree of medical probability that Marquis' alleged breachin the standard of care caused Ms. Gonzalez pain and suffering. Nurse Shelkey was precluded from providing any causationopinions so the requisite testimony did not come from her. Moreover, the requisite testimony was not provided by Dr. Worrell.Dr. Worrell had no opinions regarding the medical care and treatment provided by Marquis. Her testimony was strictly limitedto her opinions as to what caused Ms. Gonzalez's death at the time of autopsy. She did not mention the word “pain” and had notreviewed any of Ms. Gonzalez's medical records. The only glimmer of hope that Plaintiffs had in presenting evidence statedto a reasonable degree of medical probability that Marquis caused Ms. Gonzalez pain was if it was presented by Dr. Shah. Buteven he failed to provide the requisite testimony. He did not know who or what Marquis was. Ex. D at 205:21-25. Furthermore,Dr. Shah failed to present any of his opinions to a reasonable degree of medical probability. See Ex. D at 184:25-218:18. Infact, the foundation of Dr. Shah's opinions were not based upon his training, experience and education. Instead, the foundation

of his opinions inappropriately came from Wikipedial! 1 Purported expert testimony based on a review of Wikipedia does notmeet the requirements of Hallmark v. Eldridge, 124 Nev. 492 (2008).






Notwithstanding Plaintiffs' failure to offer sufficient evidence in support of the award of damages for pain and suffering, thearbitrator manifestly disregarded the law by awarding these damages to the Estate, An Estate is never entitled to damages forpain and suffering in a wrongful death action, NRS 41.085 states, in pertinent part,Heirs and personal representatives may maintain an action.

5. The damages recoverable by the personal representatives of a decedent on behalf of the decedent's estate include:

(a) Any special damages, such as medical expenses, which the decedent incurred or sustained before the decedent's death, andfuneral expenses; and

(b) Any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if thedecedent had lived, but do not include damages for pain, suffering or disfigurement of the decedent.

NRS 41.085(5) (emphasis added). The award for pain and suffering to the Estate must be vacated.

“Compensatory damages must be given before punitive damages are authorized.” A/per v. Stillings, 80 Nev. 84, 85 (1964), Inother words, if a party is not eligible for compensatory damages, as in Plaintiffs' case, then they are certainly not eligible forpunitive damages. The arbitrator manifestly disregarded the law by awarding punitive damages since Plaintiffs were not eveneligible for compensatory damages.

Furthermore, the record is devoid of any evidence that Marquis acted fraudulently, maliciously, or with oppression, and anaward of punitive damages is unfounded. The Arbitration Award states,The Defendants [sic] established policies to protect their patients and then they ignored them. This was not simply a case of anoccasional oversight of documentation, but it was repeatedly ignored.

In addition to not having adequately trained their personnel to document the records, Marquis had no supervisor that saw thatthey were being documented Over this length of time any review of the charts should have shown lack of documentation. Itwas as if Marquis established the policy because they were required to have one and then proceeded to ignore it We find thatthe Defendant's conduct was negligent, grossly negligent and justifies an award of punitive damages under Nevada law.

An award of $200,000 in punitive damages is awarded for the repeated failure to follow their own procedures and those ofthe profession.

Ex B at p. 10 (emphasis added). “Punitive damages are authorized by statute. NRS 42.005 provides for an award of punitivedamages upon a showing of fraud, oppression or malice by clear and convincing evidence. Tort liability alone is insufficient tosupport an award of punitive damages.” Wichinsky at 89 (Supreme Court of Nevada vacated an arbitration award concludingthat the arbitrator manifestly disregarded the law by awarding punitive damages in the absence of clear and convincing evidenceof fraud, oppression or malice); see also First Interstate Bank of Nevada v. Jafbros Auto Body, Inc., 106 Nev. 54, 57(1990).

Fraud is defined as “an intentional misrepresentation, deception or concealment of a material fact known to the person withthe intent to deprive another person of his or her rights or property or to otherwise injure another person.” Malice is definedas “conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of therights or safety of others.” Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship withconscious disregard of the rights of the person.” NRS 42.001.

Marquis' alleged failure to adhere to policies and procedure or alleged failure to fully document the medical chart in 100%compliance with its policies and procedures does not constitute fraud, malice, or a conscious disregard, and therefore, do not









give credence to a punitive damages award. Furthermore, these allegations do not support an award for punitive damagesespecially in light of the fact that these alleged failures did not cause an injury. The record is completely devoid of any testimonythat Marquis intended to injure Plaintiffs. Furthermore, the record is completely devoid of any testimony that Marquis' allegedfailure to fill out paperwork amounted to despicable conduct that subjected Plaintiffs to cruel and unjust hardship with aconscious disregard of Plaintiffs' rights, Absent clear and convincing evidence that Marquis acted fraudulently, maliciously,or with conscious disregard, which Plaintiffs did not present because it does not exist, the arbitrator manifestly disregarded thelaw in awarding punitive damages and the award must be vacated.

Moreover, the arbitrator manifestly disregarded the law by awarding the Estate of Gladys Gonzalez $1,500 in funeral expenseswithout any evidence in support of this award. Ex B at p. 9. “To justify a money judgment, the amount as well as the fact ofdamage must be proved by substantial evidence. The law does not permit arriving at the amount by pure conjecture.” KellyBroadcasting Co. v. Sovereign Broadcast, Inc., 96 Nev. 188, 193-94 (1980). Not only was there no evidence of funeral expenses,but Plaintiffs' counsel stated that Plaintiffs' had no funeral expenses.ARBITRATOR WHITEHEAD: I didn't notice, was there anything for the estate, the funeral expenses?

MR. SAGGESE: We didn't submit that.

ARBITRATOR WHITEHEAD: I'm sorry?

MR, SAGGESE: I didn't submit funeral expenses, no.

Ex. D at 488:15-20. Moreover, Plaintiff testified at his deposition that there was no funeral.Q: Following your mom's death, did she have a funeral?

A: No, We had her cremated.

Ex, E, Plaintiffs' deposition at 72:8-10, The award is unsupported, contrary of Plaintiffs' counsel statements, and conflicts withMr. Torres' testimony. This is clear evidence of bias. Awarding damages for something the Plaintiffs definitively testified didnot exist is also capricious and arbitrary. The Arbitration Award must be vacated.

IV. THE ARBITRATION AWARD IS ARBITRARY AND CAPRICIOUS

Even if this Honorable Court could find that the arbitrator did not manifestly disregard the law in denying Marquis' motion todismiss, finding in favor of Plaintiffs, or awarding damages absent proof of their prima facie case, the Arbitration Award muststill be vacated as the award is not supported by substantial evidence in the record. The arbitrary-and-capricious standard doesnot permit a reviewing court to vacate an arbitrator's award based on a misinterpretation of the law. Clark at 333-34. Rather, thecourt's review on this issue is limited to whether the arbitrator's findings are supported by substantial evidence in the record. Id.

As noted herein, to prevail in a malpractice action the plaintiff must establish the following: (1) that the defendant's conductdeparted from the accepted standard of medical care or practice; (2) that the defendant's conduct was both the actual andproximate cause of the plaintiff's injury; and (3) that the plaintiff suffered damages. See Prabhu at 1543; Perez at 4 (emphasisadded). Additionally, medical expert testimony on the issue of causation is required and must be stated to a reasonable degreeof medical probability. Morsicato at 153. Plaintiffs' failed to present any evidence that Marquis' alleged breach in the standardof care caused Plaintiffs' injuries. Not only did Plaintiffs fail to provide substantial causation evidence, they provided none.





i. The Arbitration Transcript Is Devoid Of ‘Substantial Evidence’ To Support Plaintiffs' Prima Facie Case; In Fact, ItIs Devoid Of Any Of The Required Evidence

Plaintiffs may try to argue, as they did at the time of arbitration, that their experts testified to certain things which demonstratethat they have met their burden. For example, at the close of Plaintiffs' case in chief when Marquis made their motion to dismissfor the first time, Plaintiffs' counsel argued: “...geriatric nurse with 40 years of experience, what causes the development ofpressure ulcers, Ms. Shelkey testified to that and those pressure ulcers led to, to a reasonable degree of medical certainty,led to the death of Gladys Gonzalez.” Ex. D at 222:14-21. However, as Marquis' informed the arbitrator at the time of thehearing, what Plaintiffs' counsel said was not evidence or even accurate. Ex D at 222:25-223:1. More importantly, we nowhave the arbitration transcript and have each expert's verbatim testimony. Nurse Shelkey did not opine to a reasonable degree ofmedical probability that Marquis' alleged breach in the standard of care caused Ms. Gonzalez's death. In fact, no expert providedthis opinion. Plaintiffs' may have duped the arbitrator, but they certainly cannot dupe this Court into believing testimony waspresented when the arbitration transcript indicates otherwise.

ii. Lack Of Documentation Does Not Prove Medical Malpractice

Throughout the arbitration and in the Arbitration Award, it appears as though the arbitrator's focus is centered on Marquis'alleged lack of documentation. See Ex. B. This is ironic given the medical chart for Ms. Gonzalez at Marquis was approximately3,000 pages. Ex. F, medical records from Marquis on disk. Furthermore, the totality of medical records entered into evidence atthe time of arbitration, which were readily available to the arbitrator, was approximately 15,000 pages. It is challenging to trustthat the arbitrator reviewed Ms. Gonzalez's expansive medical chart from Marquis before determining that Marquis' “recordkeeping was grossly inadequate...” Ex. B at p. 5.

Assuming arguendo that Marquis' documentation deviated from its policies and procedures, a perceived lack of record keeping(as opposed to actual care) cannot amount to substantial evidence to show Marquis caused Plaintiffs' damages. First, Plaintiffspresented no causation evidence to bridge the wide gap between insufficient documentation and cause of death. As this courtis aware, a prima facie case of medical malpractice is not demonstrated upon the presentation of evidence that a patient diedafter defendant breached an established standard of care. Fernandez at 972. Plaintiffs also have to show that Marquis' conductwas the cause of death. Id.

Second, lack of documentation is not the same as lack of medical care. Record keeping is not medical care and cannot causeinjury. Dr. Vu testified that Ms. Gonzalez's medical condition either improved or remained the same while she was a residentat Marquis. Ex. D at 239:2-9; 276:20-277:6, If reasonable medical care was not provided to Ms. Gonzalez, logic dictates thather health would have “deteriorated” under Marquis' care. It did not Ex. D at 276:20-277:6. This testimony is uncontroverted.As a result, the Arbitration Award lacks a basis in the evidence and must be vacated.

iii. Plaintiffs Admit St. Joseph Caused Plaintiffs' Damages; Not Marquis

The arbitrator's ruling is premised upon pure speculation. After Ms. Gonzalez's last discharge from Marquis on September 23,2012, she resided at University Medical Center (“UMC”) until October 19, 2012, then was transferred to St Joseph Rehabilitationwhere she resided until November 10, 2012. Thereafter, she was transferred back to UMC where she expired on November 12,2012. The arbitrator states in the Arbitration Award that he “was not advised of the care and treatment provide by [UMC] and St.Josephs [sic] Hospital so no observation may be made of those institutions” and the finds that Marquis caused Ms. Gonzalez'sdeath. Ex. B at p. 2. This is incorrect. The arbitrator was advised of the care and treatment provided at those facilities and wasprovided all of the records from both UMC and St. Joseph's Rehabilitation Hospital. Apparently he chose not to review anyof them. This is further evidence that the arbitrator's decision was arbitrary and capricious. It also shows a clear bias towardPlaintiff by ignoring evidence favorable to the defense and then claiming he was not advised on it





The arbitrator was also advised in Marquis' Arbitration Brief and at the time of arbitration that Plaintiffs filed a separate lawsuitin Clark County District Court, Case No. A670360 against St Joseph Rehabilitation, wherein Plaintiffs alleged the exact samecauses of action against St, Joseph, as they did against Marquis, i,e. medical malpractice, wrongful death, and elder abuse. Ex.G, St. Joseph's Complaint; Ex. H, Marquis' Arbitration Brief at 17:4-6 (without exhibits); Ex. D at 145:25-147:3, The arbitratorwas advised that Plaintiffs alleged that but for the substandard care provided by St. Joseph, Ms. Gonzalez would not havesuffered numerous significant pressure ulcers, infections, sepsis, severe hypotension, and hypothermia. Ex. G at ¶ 34; Ex. H at17:7-9. If Ms. Gonzalez's medical conditions would not exist but for the care and treatment she received at St. Joseph, monthsafter Ms. Gonzalez was discharged from Marquis, then logically, Marquis is not liable for Ms. Gonzalez's medical condition.Ex. H at 17:10-13 (emphasis added). Furthermore, as the arbitrator was informed, Plaintiffs claimed that Ms. Gonzalez's deathwould not have occurred but for St Joseph's negligence.That Defendant St. Joseph Rehabilitation neglected to provide proper care for Decedent causing Decedent's decline in healthand eventual death.

That but for the substandard care provided by [St Joseph], Decedent would not have suffered numerous significant pressureulcers, infections, sepsis, severe hypotension, and hypothermia, resulting in Decedent's death.

Ex. G at ¶ 39-40 (emphasis added); Ex H at 17:14-18. Accordingly, Plaintiffs claimed that St. Joseph's conduct was the actualcause of Ms. Gonzalez's demise. If the medical care and treatment Ms. Gonzalez received at St. Joseph one month after Ms,Gonzalez was last discharged from Marquis was the actual cause of her death, then logically, Marquis is not liable for Ms.Gonzalez's death. Ex. H at 17:20-23. It appears the arbitrator ignored this evidence based on his statement in the ArbitrationAward,

Ms. Gonzalez spent the last nine (9) months of her life in healthcare facilities on a steady decline. She was 84 and in poorhealth. Of the last nine (9) months she only spent about two and half at Marquis. The last two months were at UMC and St.Joseph's. The arbitrator has ignored this evidence as indicated by his statements in the Arbitration Award. It is evident thathis Award is not supported by substantial evidence. To the contrary, there is no evidentiary basis for the award. That meansit was either arbitrary and capricious, based on bias toward the Plaintiffs or was procured by undue means. In any event, theArbitration Award must be vacated.

V. THE ARBITRATION AWARD MUST BE VACATED ON STATUTORY GROUNDS

The award must also be vacated on statutory grounds. Pursuant to NRS 38.241, upon motion to the court, the court shall vacatean award made in the arbitral proceeding if:(a) The award was procured by corruption, fraud or other undue means;

(b) There was:

(1) Evident partiality by an arbitrator appointed as a neutral arbitrator,

(2) Corruption by an arbitrator, or

(3) Misconduct by an arbitrator prejudicing the rights of a party to the arbitral proceeding;

(c) The arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement... so as to prejudicesubstantially the rights of a party to the arbitral proceeding;

(d) The arbitrator exceeded his or her powers,


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NRS 38.241. Statutory grounds exist Accordingly, the Arbitration Award must be vacated.

a. The Arbitration Award May Have Been Procured By Undue Means

The court shall vacate an award made in the arbitral proceeding if the award was procured by corruption, fraud or other unduemeans. NRS 38.241(l)(a). “The best reading of the term ‘undue means' under the maxim noscitur a sociis is that it describesunderhanded or conniving ways of procuring an award that are similar to corruption or fraud, but do not precisely constituteeither.” Sylver v. Regents Bank, N.A., 300 P.3d 718, 721 (2013) citing National Cas. Co. v. First State Ins. Group, 430 F.3d492, 499 (Mass. 2005).

It appears there was an undisclosed relationship between Plaintiff Carlos Torres, Plaintiffs' counsel, and the arbitrator. Just priorto arbitration commencing, the parties discussed settlement. It was Marquis' desire to attempt to mediate this matter, thus savingboth parties fees and costs associated with arbitration. However, Plaintiffs refused to attend mediation unless Marquis broughtat least $200,000 to the table and agreed to negotiate up from there. During these discussions Plaintiff's counsel Marc Saggesedeclared to Marquis' counsel, Alayne Opie, that he “could get $200,000 out of Judge Whitehead with his eyes closed.” Ex, I,Affidavit of Alayne Opie. This statement raised serious red flags and was the primary reason Marquis felt the need to retain aCourt Reporter for the arbitration hearing. Mr. Saggese's message could not have been any clearer; regardless of what transpiredat arbitration, they would be awarded at least $200,000. Mr. Saggese blatandy insinuated that he had Judge Whitehead in hisright pocket and he would prevail at arbitration no matter what the evidence proved, no matter how faulty Plaintiffs' case was,and no matter what Plaintiffs' experts testified to at arbitration. Of course, the arbitrator did award Plaintiffs a significant amountof money despite Plaintiffs' failure to present expert testimony to a reasonable degree of medical certainty that the allege breachin the standard of care caused Plaintiffs' damages.

In addition, the parties took several breaks throughout the two day hearing. During several of the breaks, Mr. Torres andthe arbitrator were involved in deep conversations. The arbitrator did not attempt to engage in any similar conversationswith Defendants. These conversations had the appearance of impropriety and made Marquis' representatives uneasy anduncomfortable. They also reinforced Marquis' fears that an improper relationship existed between Plaintiffs' side and thearbitrator. This type of interaction never would have commenced between a Judge and Plaintiffs in District Court The samestandards apply and should have been followed at arbitration.

Furthermore, on January 20, 2014, three days before arbitration, Plaintiffs served an offer of judgment on Marquis in the amountof $470,000.00. Ex J, Plaintiff Carlos Torres' Offer of Judgment Amazingly, the Arbitration Award was just over that amountat $476,500. Plaintiffs' offer was ineffective as it was not served more than 10 days before the arbitration as required underNRS 17.115, and therefore, Marquis did not respond. Nevertheless, this was the amount that Plaintiffs' valued their case. TheArbitration Award nearly mirrors Plaintiffs' offer and is highly suggestive that Plaintiffs provided their offer of judgment to thearbitrator. This information was improperly conveyed to the arbitrator and directly affected the amount awarded to Plaintiffs.This is no coincidence.

Pursuant to NRS 38.227, before accepting appointment as arbitrator and as the arbitration process continued, the arbitrator wasrequired to make a reasonable inquiry and disclose to Marquis any known facts that a reasonable person would consider likelyto affect his ability to act and conduct tie arbitration impartially. NRS 38.227. This included disclosure of an existing or pastrelationship with any of the parties or their counsel. NRS 38,227(1)(b). Failure to disclose these facts is grounds for vacating anarbitration award. See NRS 38.227(4). The arbitrator did not disclose the close relationship he maintained with Mr. Saggese orMr. Torres. In fact, the arbitrator did not provide a list of prior cases he served as arbitrator involving Mr. Saggese or his firm.The arbitrator's inability to serve impartially should have been disclosed long before he accepted appointment as arbitrator,should have been disclosed as the case ensued, should have been brought to Marquis' attention after he received Plaintiffs' offerof judgment, and certainly should have been disclosed before rendering an award in Plaintiffs' favor absent proof of Plaintiffs'prima facie case. The Arbitration Award must be vacated,












b. The Arbitrator Exceeded His Powers

As discussed above, the Arbitration Award was arbitrary and capricious and Judge Whitehead manifestly disregarded the law,thus he exceeded his powers. Marquis repeats and realleges its arguments in favor of vacating the award on those bases forthe proposition that he exceeded his powers.

c. There Was Evident Partiality and Misconduct By The Arbitrator

Pursuant to NRS 38.241(b), a court shall vacate an award made in the arbitral proceeding if there was (1) evident partiality byan arbitrator appointed as a neutral arbitrator; (2) corruption by an arbitrator; or (3) misconduct by an arbitrator prejudicing therights of a party to the arbitral proceeding. NRS 38.241 (1(b). The arguments contained throughout this motion also demonstratethat there was evidence partiality and misconduct by the arbitrator. For brevity sake, Marquis repeats and realleges all argumentsherein.

Furthermore, on March 27, 2013, the parties telephonically conferred with the arbitrator and stipulated to a discovery andscheduling order. Thereafter, the parties entered into a Stipulated Arbitration Discovery and Scheduling Order which indicatedthe following:(1) This matter will be arbitrated by Judge jerry Carr Whitehead on October 1, 2013, at 9:00 a.m. at the Law Offices of Saggese& Associates, located at 732 Sixth Street, Suite 201, Las Vegas, Nevada 89101...

(2) The disclosure of initial expert witness must be made by June 21, 2013.

(3) Rebuttal expert witnesses must be disclosed by July 22, 2013.

(4) Discovery shall close on August 31, 2013.

...

(9) The parties may conduct additional discovery that can be agreed upon.

(10) Any amendments to this Stipulated Arbitration Discovery and Scheduling Order may be made by stipulation of the partiessubmitted to Judge Whitehead. In the event an issue arises that can not be resolved between the parties, it shall be broughtbefore the Arbitrator.

Ex. K, Stipulated Arbitration Discovery and Scheduling Order. On June 4, 2013, Plaintiffs disclosed 2 Forensic PathologistRexene Worrell, M.D., and Neurologist/Neurophysiologist Russell Shah, M.D. as experts. Ex. L & M “Plaintiff's InitialDisclosure of Expert Witness.”

On June 16, 2013, the parties entered into a stipulation to extend certain discovery deadlines. The Stipulated ArbitrationDiscovery and Scheduling Order (First Amendment) provided:(1) This matter will be arbitrated by Judge Jerry Carr Whitehead on October 1, 2013, at 9:00 a.m. at the Law Offices of Saggese& Associates, located at 732 Sixth Street, Suite 201, Las Vegas, Nevada 89101...

(2) The disclosure of initial expert witness must be made by July 22, 2013.

(3) Rebuttal expert witnesses must be disclosed by August 22, 2013.





(4) Discovery shall close on September 16, 2013.

...

(9) The parties may conduct additional discovery that can be agreed upon.

(10) Any amendments to this Stipulated Arbitration Discovery and Scheduling Order may be made by stipulation of the partiessubmitted to Judge Whitehead. In the event an issue arises that can not be resolved between the parties, it shall be broughtbefore the Arbitrator.

Ex. N, Stipulated Arbitration Discovery and Scheduling Order (First Amendment).

Thereafter, Plaintiffs' disclosed Tracy Rodgers, RN, on July 12, 2013, whom Plaintiffs stated would “testify as an expert witnessregarding the facts and circumstances surrounding this incident and her expert opinions as a Registered Nurse specializing inthe prevention and treatment of pressure ulcers, including, but not limited to, decubitus ulcers, pressure ulcers, the standardof care and patient negligent, and any other information that may become known.” Ex. O, “Plaintiff's Initial Disclosure ofExpert Witness,” Plaintiffs' disclosure of Nurse Rodgers contained lengthy material consisting of a medical summary, timelinesummary, and Affidavit, among other documents. Id

Then, in accordance with the Stipulated Arbitration Discovery and Scheduling Order, Marquis' disclosed its initial experts onJuly 22, 2013. Ex. P, Marquis Initial Disclosure of Expert Witnesses. Marquis disclosed Nationally Boarded GerontologicalNurse Practitioner and Nurse Executive Nancy Henry, APRN-BC, PhD, and Internal Medicine and Geriatrician Man Quang,Vu, M,D, Id. Additionally, on August 20, 2013, Marquis disclosed rebuttal expert Neurologist Barry Ludwig, M.D. Ex, Q.

On August 22, 2013, the last day for either party to disclose experts, Plaintiffs experts consisted of: (a) Forensic Pathologist,Rexene Worrall, M.D., (b) Neurologist Russell Shah, M.D., and (c) Registered Nurse Tracy Rodgers. Marquis' experts consistedof: (a) Internal Medicine and Geriatrician Man Vu, M.D., (b) Nurse Practitioner Nancy Henry, PhD, and (c) Neurologist BarryLudwig, M.D. With the expiration of the last day to disclose experts and the upcoming close of discovery deadline, Marquisbegan noticing and taking Plaintiffs' expert's depositions. Marquis took all three of Plaintiffs' expert's depositions within the

span of seven days in order to complete them by the close of discovery. 3 Plaintiffs, on the other hand, did not depose anyof Marquis' experts.

On September 12, 2013, Marquis' counsel contacted Plaintiffs' counsel to discuss stipulating rescheduling the October 1, 2013,arbitration and extending the close of discovery for several reasons. First, contained within all notices of deposition to Plaintiffs'experts was a request to produce the expert's case file. Two out of three experts failed to produce their case file. Second, NurseRodgers' informed Marquis' counsel that her file consisted of multiple bankers boxes and more time was needed to review thefile before the close of discovery. Third, Plaintiffs' discovery responses were past due. Lastly, it had recently come to Marquis'counsel's attention that two of Marquis' experts had a scheduling conflict Despite Marquis' good faith request and the fact thatthis matter had only been litigated for ten months, Plaintiffs would not stipulate. Therefore, Marquis made a formal request tothe arbitrator, Ex. R, Correspondence to Judge Whitehead from Alayne Opie, dated September 12, 2013. Specifically, Marquisrequested that the “October 1, arbitration be vacated and rescheduled” and “...that the discovery cut off deadline be extendedthree to five months...” Immediately thereafter, the arbitrator prepared an Order which stated,

I have reviewed the Defendant's Motion to Continue the October 1 st and 2 nd 2013 Arbitration and the Plaintiffs Objection.The Arbitrator has reviewed the arguments and I grant the continuance upon the following conditions:

1, The new date must be selected and confirmed between the arties within 10 days of the date of this order.






2. The arbitration will be set for atbitration before January 30, 2014.

Ex, S, Arbitrator's Order. The arbitrator did not address Marquis' request to extend the discovery cut off deadline. However,during a telephone conference between the parties and arbitrator on October 1, 2013, the arbitrator granted Marquis' request toextend the discovery cut off deadline, Therefore, Marquis' counsel drafted a proposed order setting forth the arbitrator's rulingsregarding Marquis' motion to continue arbitration and motion to extend the discovery cut off deadline, and forwarded the sameto Plaintiffs' counsel for review and signature. Plaintiffs' counsel disagreed with the language of the proposed order, insistingthat not only was the discovery cut off deadline extended, but that the deadline to disclose experts was once again open despitethe fact that neither party had made a motion to re-open the disclosure of experts, the deadline to disclose experts had passedthree months prior and Marquis had already deposed Plaintiffs' experts. Ex. T, email from Marc Saggese to Alayne Opie datedOctober 17, 2013,

On October 17, 2013, Marquis' counsel wrote to the arbitrator explaining that no party had made a motion to re-open thedeadline to disclose experts, that Marquis certainly did not do so, Marquis would not stipulate to reopening of the deadline asthat date had come and passed three months prior, and extending the deadline to disclose experts thirty days before arbitrationwould not allow for sufficient time to depose any additional experts and prepare for arbitration, Ex. U, Correspondence toJudge Whitehead from Alayne Opie, dated October 17, 2013. Plaintiffs submitted their competing order on the same date whichindicated “that Defendants' Motion to Extend Discovery Cut Off is GRANTED. Discovery shall close on December 31, 2013.Either party disclosing additional experts shall do so 30 days before close of discovery for rebuttal expert witness response.”Ex. V, Correspondence from Marc Saggese to judge Whitehead dated October 17, 2013 (emphasis added).

Nearly two weeks later, on October 29, 2013, Plaintiffs' disclosed Forensic Geriatric Psychiatrist Stephen L. Read, M.D., albeitwithout an expert report. On October 31, 2013, Marquis' counsel wrote to Plaintiffs' counsel objecting to Dr. Read as an expert.Ex, W, Correspondence to Marc Saggese from Brent Vogel dated October 31, 2013. Their disclosure of Dr. Read was extremelylate as the date to disclose initial experts was July 22, 2013, and even if they attempted to identify Dr. Read a rebuttal expert,the deadline to disclose him passed on August 22, 2013. Id. Additionally, Plaintiffs' had not complied with NRCP 16.1(a)(2)(B) as they failed to attach an expert report. Id.

Within hours of Marquis' counsel sending their objections to Plaintiffs' counsel, the parties received correspondence fromthe arbitrator. Despite the fact that no party had made a motion to re-open the deadlines to disclose experts, the arbitratorsigned Plaintiffs' proposed order allowing Plaintiffs nearly up until the date of arbitration to disclose new experts. Ex, X,Correspondence from Judge Whitehead to parties dated October 31, 2013. Pursuant to the arbitrator's Order the deadlines werenow as follows:

Additional expert disclosure:

November 29, 2013

Close of discovery:

December 31, 2013

Arbitration briefs due:

December 31, 2013

Arbitration:

January 23, and 24, 2014

Not only did Plaintiffs disclose Dr. Read outside of the stipulated dates to disclose experts, but they disclosed yet anothernursing expert, Mary Shelkey, Ph.D., ARNP on December 2, 2013, just seven weeks before arbitration was to commence andlate even according to the new deadline to disclose. Ex. C. Plaintiffs' stated that Nurse Shelkey would “testify as an expertwitness regarding the facts and circumstances surrounding this incident and her expert opinions as a Geriatric Nurse Practitionerprimarily involving all aspects of elder abuse, including, but not limited to elder abuse, the standard of care and patient neglect,

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and any other information that may become known.” Id. In other words, the same testimony as their other nursing expert, Ms,Rodgers.

Marquis' counsel immediately wrote to the arbitrator lodging its objections to Plaintiffs' disclosure of Nurse Shelkey. Ex. Y,Correspondence to Judge Whitehead from Alayne Opie dated December 4, 2013. Plaintiffs had already disclosed their nursingstandard of care expert, Tracy Rodgers, RN, months prior on July 16, 2013. Now, days before the arbitration was to commence,Plaintiffs disclosed Nurse Shelkey, a duplicative nursing standard of care expert. Marquis had already expended the time andmoney in deposing Nurse Rodgers and began preparing for arbitration with the understanding that Nurse Rodgers would testify.Marquis requested that Nurse Shelkey be stricken as an expert.

On December 16, 2013, the arbitrator denied Marquis' motion to strike Nurse Shelkey and instead allowed Plaintiffs to choose

to bring either Nurse Shelkey or Nurse Rodgers to testify at arbitration. 4 Therefore, with arbitration less than six weeks away,Marquis was forced to prepare to take a new and cumulative expert's deposition, travel to Seattle, Washington, to take it, andprepare to attend arbitration against a brand new nursing standard of care expert. The deposition of Nurse Shelkey commencedon January 10, 2014, in Seattle, Washington, less than two weeks before arbitration.

Throughout the arbitration process, the arbitrator provided Plaintiffs with multiple concessions demonstrating his evidentpartiality toward Plaintiffs and significantly prejudicing Marquis. First, over Marquis' objections, the arbitrator extended thedeadline to disclose all experts until just thirty days before arbitration started. (Those thirty days also happened to be overthe holidays, which made scheduling extremely difficult.) Neither of the parties had even made a motion to that effect to thearbitrator, yet, he executed Plaintiffs' proposed order which requested this relief. The time to disclose experts had long passed.Marquis spent numerous hours and significant amounts of money preparing for, traveling to, and taking the depositions ofPlaintiffs' experts. Plaintiffs' dissatisfaction with their experts' testimony does not equate good cause to re-open the deadlineto disclose experts on the eve of arbitration. Marquis diligently worked up this case so it would be prepared for arbitration.Allowing Plaintiffs to change the game just days before the arbitration proceeded placed Marquis at a significant disadvantage.

Second, not only did the arbitrator allow Plaintiffs to disclose additional experts on the eve of arbitration, he allowed themto disclose cumulative and duplicative experts, even after he specifically found that Nurse Shelkey was cumulative. See NRS48.035(2) (even if relevant, evidence may be excluded if its probative value is substantially outweighed by undue delay, wasteof time or needless presentation of cumulative evidence); see also Ex. AA, Response to Request for Written Order (“[o]n thesecond matter, the plaintiff had designated two experts in the same field and the defendant argued that the second expert shouldbe stricken as her testimony would be cumulative. I ruled that the plaintiff could only present one of the two experts at thehearing and that the defense could depose the second witness.... As to the second issue, the expert witness had been deposedand was ready to testify. The plaintiff had followed the order and did not present a cumulative expert”) (emphasis added). Thearbitrator's denial of Marquis' motion to strike Nurse Shelkey is evidence of extreme partiality.

The arbitrator ruled that Plaintiff was precluded from presenting cumulative experts at the time of arbitration. However, hedid not rule that Plaintiffs were precluded from presenting Nurse Rodgers at arbitration. This is an important distinction inthe arbitrator's rulings because as a result, Marquis was required to prepare a defense against both nursing standard of careexperts since Plaintiffs were not required to identify which expert they would present at arbitration. The arbitrator's rulingplaced Marquis at a significant disadvantage. Plaintiffs knew exactly who Marquis was presenting at the time of arbitrationas of August 20, 2013, and could focus their attention on preparing their case for arbitration against these experts. Marquis,on the other hand, was tasked with scrambling last minute to prepare a defense against the experts Plaintiffs had sporadicallydisclosed from the beginning of discovery up until January 2, 2014, just twenty-one days before arbitration began and had nomeaningful prior knowledge of who would actually show up to testify.

For months Marquis had prepared extensively for arbitration with the understanding that Plaintiffs would have Nurse Rodgerstestify. As it turned out, all of Marquis' efforts in that regard were wasted. Twelve days before arbitration, Marquis was forced totake Nurse Shelkey's deposition. The medical records alone which Nurse Shelkey would testify about in this case encompassed





twenty-five three inch thick exhibit binders amounting to almost 15,000 pages. To simply digest her testimony and compare it tothe records that she referenced during her deposition took several days. Nurse Shelkey could and should have been identified asan expert in this case well in advance. The arbitrator's concession was improper, placed Marquis at a significant disadvantage,and is only one of the many examples of his evident partiality toward Plaintiffs.

Furthermore, Marquis did not receive the expedited and costly deposition transcript of Nurse Shelkey until January 14, 2014.Therefore, Marquis was unable to provide its experts with Nurse Shelkey's full opinions until right before the hearing. As such,Marquis' experts were unable to adequately prepare opinions rebutting those of Nurse Shelkey's and were not afforded a fairopportunity to prepare for arbitration.

The severe disadvantage that Marquis faced as a result of Plaintiffs' untimely and cumulative disclosure did not faze thearbitrator. Marquis' arguments against Plaintiffs' actions fell on deaf ears, It appeared as though he was not concerned with thesevere prejudice that Marquis would face as a result of his ruling, but merely concerned with appeasing Plaintiffs' desire tohave a second bite at the apple to disclose new experts.

Third, the arbitrator consistently granted Plaintiffs' ex-parte requests for extensions of time to complete tasks. For example,based upon the arbitrator's ruling on a non-existent motion, the last date to disclose experts was November 29, 2013. Ex. X.Yet, on November 27, 2013, Marquis' counsel received an email from Judge Whitehead's office which stated, “Ms, Casteelwanted to know if the date for disclosure of Expert Witness' could be extended to Dec. 2, 2013 because of the Thanksgivingholiday. I wanted to let you know that I spoke with the Judge and he has agreed to this.” Ex. BB, email from JC WhiteheadAssistant to Brent Vogel, dated November 27, 2013. Discovery opened in March of 2013. Plaintiffs had not one, not two,

but three opportunities to timely disclose experts and still did not do it on time. 5 There was no legitimate reason for thisadditional extension of time. Marquis made its disclosures months prior on August 20, 2013, i.e., pursuant to the arbitrator'sorder. Plaintiffs on the other hand, were allowed to disclose experts whenever they requested and long after the deadline. Thisis further evidence of bias and partiality toward the Plaintiffs.

Additionally, the arbitrator consistently granted Plaintiffs ex-parte requests for extensions of time to submit their ArbitrationBrief. Plaintiffs sought no less than two extensions of time in which to submit their brief. Ex. CC, emails regarding extensionsof time to submit arbitration brief. Meanwhile, Marquis was prepared to submit its brief on December 31, 2013, in accordancewith the arbitrator's order. Marquis' counsel worked diligently over the holidays to make sure that its brief was ready to besubmitted by the December 31 deadline. Plaintiffs' did not submit their brief until January 15, 2014. Arbitration briefs containa party's theories and serve as an additional method for opposing counsel to adequately prepare for the hearing. Once againthe arbitrator bowed to Plaintiffs requests.

The arbitrator's actions in this case demonstrated his evident partiality to Plaintiffs and against Marquis time and time again.Marquis was left believing that the cards were stacked against it No matter what Marquis did, the arbitrator did whatever Plaintiffrequested. Even if it meant changing a prior ruling that Marquis had relied upon in good faith. Accordingly, the ArbitrationAward must be vacated.

d. The Arbitrator Refused To Postpone The Hearing Upon Showing Of Sufficient Cause For Postponement TherebySubstantially Prejudicing The Rights of Marquis

On December 10, 2013, Marquis' counsel wrote to the arbitrator requesting that the January 23, 2014, arbitration be continued.Ex, DD, Correspondence to Judge Whitehead from Brent Vogel dated December 10, 2013. Plaintiffs' disclosure of NurseShelkey alone, just days before the arbitration commenced, was sufficient cause to postpone the arbitration. Marquis' efforts thatit had undertaken to appropriately prepare for arbitration during the prior nine months were a wash. On the eve of arbitration,Marquis was taxed with preparing a new defense against a brand new expert that it would depose only twelve days before thehearing, in addition to preparing a defense against Nurse Rodgers just in case Plaintiffs decided to produce her at the time ofarbitration.



However, additional issues were in play which also necessitated a continuance. On October 29, 2013, Plaintiffs' disclosedanother expert, Dr. Read. Ex. EE, “Plaintiffs' Initial Disclosure of Expert.” Marquis had no idea what Dr. Read was going toopine since Plaintiffs disclosed him without an expert report. Id. Therefore, Marquis set out to research Dr. Read's credentialsand prior testimony hoping to somehow anticipate what he would possibly opine in order to begin attempting to find a rebuttalexpert. The short time frame between Plaintiffs' disclosure of two new experts and arbitration, in addition to Plaintiffs' disclosureof a brand new expert without a report, did not afford Marquis acceptable time to prepare for arbitration. Plaintiffs later de-designated Dr. Read as an expert, on December 2, 2013, but not before Marquis expended time and money in locating a rebuttalexpert, thus taking their focus off of preparing for arbitration.

Additionally, trial in Traivai adv. Singletary, District Court Case No, A656091, was scheduled to begin on January 13, 2014.Marquis' lead trial counsel was expected to try the Travai matter alongside several other defendants. This was a firm trialsetting. Marquis' counsel's recent efforts to continue the trial were unsuccessful as Judge Wiese denied Defendant's Motion toContinue. The trial was expected to last two full weeks., thus overlapping with the arbitration scheduled in the instant matterand minimizing counsel's time to prepare.

On December 16, 2013, the parties and the arbitrator discussed Marquis' request to continue the arbitration. Counsel for Marquisrepresented to the arbitrator and Plaintiffs' counsel that the potential scheduling conflict in the Travai matter was relayed to themduring a prior conversation on October 1, 2013. Despite this and despite the fact that Plaintiffs had just disclosed two brand newexperts on the eve of arbitration, the arbitrator instructed Marquis' counsel to get help within the Lewis Brisbois Bisgaard &Smith LLP firm if need be because he would not grant a continuance. Ex. Z. This is evidence of bias against the defense and aviolation of NRS 38.241(c). The Traivai trial was completed after 5:00 pm on January 22, 2014, the night before the arbitrationstarted. Ex.FF, Register of Actions. The arbitrator forced Marquis to begin the arbitration the next morning despite being awareMarquis's counsel had been in trial for the last week and a half.

Plaintiffs' disclosure of one expert on the eve or arbitration gave Marquis sufficient cause for the arbitrator to postpone thehearing. Plaintiffs' disclosure of a second expert without an expert report prior to arbitration in addition to a trial schedulingconflict that Marquis' counsel tried to resolve in good faith through the District Court was more than sufficient cause for thearbitrator to postpone the hearing. Arbitration had only commenced in front of the arbitrator for less than ten months, Had thearbitration been postponed for one or two months, Marquis' rights would have been protected. There was no reason to rushthe proceedings other than to further place Marquis at a disadvantage. A brief continuance would not have caused Plaintiffshardship. Plaintiffs' continued requests for extensions and concessions were granted without hesitation. The arbitrator's denialof Marquis' motion was severely prejudicial and the Arbitration Award must be vacated

III. CONCLUSION

For the reasons stated above, Marquis requests that this Honorable Court vacate the Arbitration Award.

Dated this 21 st day of April, 2014,


<<signature>>

S. BRENT VOGEL


ALAYNE M. OPIE







Attorneys for Marquis Companies I, Inc. dba Marquis Can Plaza Regency

Footnotes1 Q: What have you done in order to prepare for your deposition today? A: I actually last night, I just happened to -- because I happened

to see Dr. Ludwig's notes, so I just decided to get some basic information for you guys so that I could explain to you in layman's way

what all these terms are, because it's a very confusing subject to general even residents. So I just thought if I can explain things in an

easier way people can understand because the terms are very confusing to even physicians. So I thought maybe it was a good idea to

just go ahead, so that, you know, I know what 1 want to say, but it may not come across. So it's better to use kind of basic language so

everybody understands fully what's going on. Q: I appreciate that. A: So I went ahead to the nonmedical, but medical popular site is

Wikipedia, so I happened to type in all the subject material, persistent vegetative state, disorders of consciousness, and actually made

a copy of it so that everybody understand so everybody has some basic terminology, you know, so everybody can understand it and

I hope that, you know, because maybe it's an easier way of explanation of all these terms, They're very confusing to a lot of people.

A: So, and I also have a thing about what a vegetative state is by Wikipedia. It talks a lot more about it.

Ex. D at 186:22-187:23; 199:7-9 (emphasis added).

2 Plaintiffs' also disclosed Internist, Geriatric Care, Hospice, and Palliative Medical Specialist John H. Fullerton, M.D., however, they

de-designated him informally on August 6, 2013.

3 Dr. Worrell's deposition commenced on September A, 2013; Dr. Shah's on September 5, 2013; and, Nurse Rodger's commenced on

September 10, 2013.

4 A proposed Order Denying Defendant's Motion to Continue Arbitration and Motion Strike Expert was sent to Plaintiffs' counsel

for review and signature. Plaintiffs' counsel refused to execute the proposed Order and therefore, Marquis submitted its proposed

Order to the arbitrator with a cover letter indicating Plaintiffs' counsel's refusal. Ex. Z, Correspondence to Judge Whitehead from

Alayne Opie, dated January 8, 2014. The arbitrator failed to execute an Order regarding these issues before the arbitration. It wasn't

until March 25, 2014, after the arbitration, when the parties received an Order from the Arbitrator regarding these issues. Ex. AA,

Response to Request for Written Order.

5 Ex. K, Stipulated Discovery and Scheduling Order (last date to disclose initial experts was June 21, 2013); Ex. N, Stipulated Discovery

and Scheduling Order (First Amendment) (last date to disclose initial experts was July 22, 2013); Ex. X, Correspondence from Judge

Whitehead to parties dated October 31, 2013 (last date to disclose experts was November 29, 2013)

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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