The Supreme Court recently clarified some Nevada labor law issues in Baldonado v. Wynn Las Vegas, 124 Nev. Adv. Op. No. 81 (October 9, 2008).

In the class action lawsuit, Plaintiffs, table game dealers, were at-will employees at a casino in Las Vegas. The casino modified its employment policy to require the dealers to share the tips received from customers with persons in certain lower-level management positions. The dealers brought an action in district court, believing that the new policy violated Nevada labor laws, including NRS 608.160, which prohibits employers from taking employee tips.

The Court addressed three issues:

1) Question: Does NRS 608.160 imply a private cause of action to enforce its terms?
Conclusion: The Nevada Labor Commissioner must administratively hear and decide complaints that arise under Nevada's labor laws. There is no private cause of action to enforce NRS 608.160 in the district courts in the first instance.

2) Question: Is declaratory relief nonetheless available to employees who allege that the statute's terms were violated by an employment policy?
Conclusion 2: Declaratory relief is not available when an adequate statutory remedy exists, so the employees lacked standing to seek declaratory relief.

3) Did those employees assert a viable breach of contract claim based on the employer's unilateral modification to the employment policy?
Conclusion 3: Because the plaintiffs are at-will employees, whose employment terms are generally subject to unilateral prospective modification by the employer, and because as a matter of law they had no enforceable contract concerning the future distribution of their tips, the employees failed to assert a viable claim of breach of contract.

See the opinion here.124NevAdvOpNo81.pdf

In Cook v. Sunrise Hospital & Medical Center, issued on October 30, the Nevada Supreme Court clarified the proper treatment of the "mere happening" jury instruction in medical malpractice cases. A "mere happening" jury instruction is an instruction asserting that the mere happening of an accident, is, by itself, an insufficient basis for liability.

The case was a medical malpractice action brought against Sunrise Hospital, in which the Plaintiff, Mrs. Linda Cook, alleged that Sunrise Hospital's negligence during a surgical procedure caused complications which ultimately led to the amputation of Mrs. Cook's leg. The case went to trial and was heard by a jury, who received the following instruction: "the mere fact that an unfortunate or bad condition resulted to the patient involved in this case does not prove, or even imply, that by virtue of that fact, the defendant is negligent." The jury returned a quotient verdict, six to two, in favor of Sunrise, and the district court entered judgment against Mrs. Cook.

Issue: Whether the district court's "mere happening" instruction misstated the law.

The Supreme Court held that the instruction misstated Nevada law because it failed to inform the jury that it could consider all of the circumstances leading to the plaintiff's injury as possible evidence of the defendant's negligence. Thus, the jury instruction may have confused or misled the jury.

The Court reversed the judgment after finding that prejudice resulted because, but for the mistake in instructing the jury, it is probably that the Plaintiff may have won his/her case, as the case was close and the evidence could have supported a finding of negligence against the Defendant.

You can find the full opinion here. 124NevAdvOpNo85.pdf

Following up on the American Association for Justice's campaign to get the word out about complete preemption:

Yesterday the U.S. House Committee on Oversight and Government Reform issued a report saying FDA career staff objected to a change in preemption rules, even saying the central factual justifications for the agency's new positions were false. The report highlights internal FDA documents which show high-ranking career officials repeatedly warning about the dangers of not allowing drug companies to add additional warnings to their labels without FDA approval. Prior to this the FDA had asserted through a rule on drug and device labeling that manufacturers should not be held accountable for failing to update their label with additional risks, if the original label was approved by the FDA.

The report cites Dr. John Jenkins, the highest official in FDA's new drug review process, writing:

[M]uch of the argument for why we are proposing to invoke preemption seems to be based on the false assumption that the FDA approved labeling is fully accurate and up-to-date in a real time basis. We know that such an assumption is false."

Prior to the rule being issued one FDA career official asserted that the rule "is not as it purports to be, consistent with the agency's role in protecting the public health..."

A copy of the report can be found at http://oversight.house.gov/documents/20081029102934.pdf .

From the Associated Press' Kevin Freking:

Top scientists and career employees at the Food and Drug Administration opposed agency regulations that weaken consumers' ability to sue drug makers, congressional investigators said Wednesday.

The report said the FDA has yet to provide a complete set of documents that would show communications between the White House and the agency, but some documents suggested the agency and the White House would not go forward with a rule on labeling until the pre-emption changes were included.