Category: Newsletter

Piercing The Veil

Nevada’s Supreme Court Confirms That Limited Liability Companies Are Subject To The Alter-Ego Doctrine & Corporate Veil-Piercing Claims

-By J. Malcolm DeVoy, Esq. & Erica A. Bobak, Esq.

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Nevada has long been regarded as a business haven because of its favorable laws regarding corporate governance and strong protections for business owners’ assets. These protections, however, are not limitless. One area of interest for transactional attorneys and litigators alike has been whether and how the alter-ego doctrine—the idea that corporate formality should be disregarded in favor of finding that a company and its owners are one and the same—should apply to Nevada limited liability companies. For years, the Nevada Supreme Court avoided directly addressing the question, but finally was forced to do so in Gardner v. Henderson Water Park, 133 Nev. Adv. Op. 89.

1. Understanding the Alter-Ego Doctrine in Nevada.

Alter-ego liability for business entities such as corporations and limited liability companies has been around for decades, colloquially referred to as “piercing the corporate veil.” Under common law, this remedy was available to prevent injustice in the event of an entity being created to enrich its owners and protect them from liability, while leaving those harmed by the company or corporation without an adequate remedy. Some of the hallmarks of cases justifying a finding that the business entity was merely the alter-ego of its owner or owners, and designed solely to avoid liability, are facts indicating fraud, undercapitalization, and commingling of personal and business funds.

In 2001, the Nevada Legislature codified Nevada’s alter-ego doctrine as it applied to corporations in NRS 78.747. This legislation wrote Nevada’s alter-ego doctrine into the State’s corporate law. This provision did not, however, find an analogue enacted in NRS Chapter 86, which governs the existence of limited liability companies. The argument then arose that the omission of this provision from Chapter 86 was intentional, and that limited liability companies were intended to be exempt from the alter-ego doctrine. Indeed, prior Nevada law confirmed that “omissions of subject matters from statutory provisions are presumed to have been intentional.”1

But like many things in life, the law also abhors that which appears too good to be true, or that would lead to an absurd result. Without directly deciding the issue, Nevada’s courts assumed for years that the alter-ego doctrine codified in NRS 78.747 would apply to limited liability companies as well.2 The Nevada Legislature’s enactment of NRS Chapter 86 in 1991 also contemplated that limited liability companies would be subject to the same doctrine of alter ego as corporations, which at that time was applied by the courts, rather than embodied within a statute.3 Although the Nevada Supreme Court had not directly spoken on whether the alter-ego doctrine would apply to limited liability companies, whether before or after the 2001 enactment of NRS 78.747, cautious transactional attorneys and intrepid litigators assumed that it would.

2. The Facts of the Gardner Case Required the Nevada Supreme Court to Confront the Alter-Ego Doctrine.

The Gardner case arose from the non-fatal drowning of a six-year-old boy at Cowabunga Bay Water Park in Henderson, which is operated by Henderson Water Park LLC. The injured youth’s parents brought suit against Henderson Water Park LLC, and ultimately wished to pursue its members and managers. Henderson Water Park LLC’s members—the company’s owners—consisted of two other limited liability companies, a strategy regularly used by attorneys to further shield individual clients from personal liability.4 In that arrangement, one or more individuals or entities create a special purpose limited liability company to hold their interest in a company such as Henderson Water Park LLC, which does business with the outside world, and faces the prospects of on-site accidents, injured patrons, and other risks.

During the course of litigation, Gardners’ counsel conducted discovery on Henderson Water Park LLC and its two managing members, West Coast Water Parks, LLC and Double Ott Water Holdings, LLC (the “Member LLCs”). In turn, seven individuals were owners or managers of the Member LLCs, and these individuals also served on a committee to manage Henderson Water Park LLC. Based on their findings in discovery, the Gardners’ counsel moved to amend their complaint to name the Member LLCs and the seven individuals who owned or managed the Member LLCs, and managed Henderson Water Park LLC, as individual defendants in the lawsuit. Within the proposed amended complaint, the Gardners intended to assert claims for alter-ego against Henderson Water Park LLC and the Member LLCs to reach the personal assets of the seven individuals who managed the businesses.

The district court denied the motion for leave to amend the complaint, finding that Nevada law did not allow for alter-ego liability against Henderson Water Park LLC and its members or managers. The Gardners’ counsel petitioned the Nevada Supreme Court for an emergency writ of mandamus, ordering the district court to allow the Gardners to file their amended complaint. The Nevada Supreme court granted the petition and ordered that the district court should allow the Gardners to file their amended complaint.

First, the Nevada Supreme Court held that the proposed amended complaint alleged negligence claims against the individual managers based on their personal duties, rather than Henderson Water Park LLC’s duties to the injured minor. This portion of the Gardner opinion reaffirmed the protection of managers under NRS 86.371 extended to claims against the company, but not to them personally. The Nevada Supreme Court drew this distinction between Henderson Water Park LLC and its individual members by noting that “the Gardners’ proposed amended complaint contained multiple allegations of individual negligence by the [m]anagers concerning their direct knowledge and actions that threatened physical injury to patrons,” including the injured youth in that case. Based on these allegations, Henderson Water Park LLC’s managers were pulled outside the protections of NRS 86.371—for the purposes of pleading—and could be named as defendants.

Most significantly, the Nevada Supreme Court reversed the district court and unequivocally stated “the alter-ego doctrine applies to LLCs.” Recognizing that this was the norm across several states to have considered the issue, the Nevada Supreme Court analyzed authority that subjected limited liability companies to the alter-ego theory of liability, whether based on express statutory requirements under common law. Noting that the Nevada Legislature’s creation of NRS 78.747 in 2001 merely “codified” a “judicially created doctrine,” the Nevada Supreme Court rejected any argument that the creation of NRS 78.747 was intended to negatively imply limited liability companies were not subject to the alter-ego doctrine. Yielding to concerns about fraud, abuse, and inequitable results, the Nevada Supreme Court wrote: “As recognized by courts across the country, LLCs provide the same sort of possibilities for abuse as corporations, and creditors of LLCs need the same ability to pierce the LLCs’ veil when such abuse exists.”

Thus, any remaining question about whether and how the alter-ego doctrine would apply to Nevada limited liability companies was resolved by the Gardner decision.

3. Implications for the Future: The Nevada Supreme Court Confirms the Expectations of Litigators and Transactional Attorneys Alike.

While Gardner provides an important confirmation of what many had long suspected, and crushes any wiggle room that might have existed about the alter-ego doctrine’s application, it is more of a confirmation than a new declaration of law. The decision’s holdings as to the personal liability of managers and members draw new attention to the importance of determining what acts, if any, a company will indemnify its managers or members for taking. While Gardner itself may lead to a rise in alter-ego claims, the pleading standards for bringing such claims, including the need to allege acts constituting an abuse of the corporate form leading to injustice, remain a barrier to drive-by allegations of alter-ego.

As criminal defense attorneys have balked that prosecutors could indict a ham sandwich, it remains true that, subject to Rule 11, a plaintiff can allege what he or she pleases. Proving alter-ego, however, is a different matter. For attorneys that do not practice litigation, this decision re-emphasizes the importance of having clients document their operations with bylaws, operating agreements, minutes of meetings and significant activities, and reasonable internal controls to maintain strong borders between or among the entity, its management, and its ownership. Although Gardner does not change the law or necessarily change the expectations of attorneys, it brings several issues to the fore that can be costly for businesses to remedy and even more painful to litigate.


J. Malcolm (“Jay”) DeVoy is the owner of DeVoy Law P.C., and Erica A. Bobak is an associate attorney with the firm, joining upon completing her clerkship for Department 30 of the Eighth Judicial District Court. DeVoy Law focuses on providing representation to clients in significant business disputes, serious personal matters, and advising medical professionals and practices about issues including licensure, HIPAA, Stark Law, and the Anti-Kickback Statute.

1Dep’t of Taxation v. DaimlerChrysler, 121 Nev. 541, 548, 119 P.3d 135, 139 (2005); Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246 (1967).
2 Webb v. Shull, 270 P.3d 1266, 1271 n.3 (Nev. 2012) (citing Montgomery v. eTreppid Technologies, LLC, 548 F. Supp. 2d 1175, 1180-81 (D. Nev. 2008) (recognizing that federal and state courts have consistently applied to LLCs corporate laws for piercing the corporate veil under the alter ego doctrine); see Volvo Constr. Equip. Rents, Inc. v. NRL Rentals, LLC, 614 F. Appx. 876, 878 n.1, 880 (9th Cir. 2015); see also In re Giampietro, 317 B.R. 841, 845-46 (Bankr. D. Nev. 2004) (Wherein the court first noted its belief that Nevada courts would apply the same common law standards for alter ego liability to members of limited liability companies that they had placed upon shareholders of corporations).
3 See Hearing on A.B. 655 Before the Assembly Judiciary Comm., 66th Leg. (Nev., May 21, 1991).
4 The Gardner case has generated at least one other reported Nevada Supreme Court decision that is closely related to this issue, but distinct enough that succinctly discussing it here risks complicating the alter-ego issues discussed in this article. For that reason, this article will not address the other Nevada Supreme Court decision relating to Gardner, although the authors recommend reading it.

Saving Sandoval: Las Vegas Attorney & Iraq Veteran Releases New Book

SavingWhile deployed to the most dangerous area in Iraq in 2007 known as the “Triangle of Death,” U.S. Army Specialist Jorge Sandoval, an airborne infantryman and elite sniper, was instructed to “take the shot” and kill an enemy insurgent wearing civilian clothes. Two weeks later, Army investigators descended upon Sandoval’s unit and began interrogating the soldiers and trying to link Sandoval and others to war crimes. Sandoval was ultimately charged with six felony level offenses, to include two counts of murder. The case made international headlines with leading stories in the New York Times and Washington Post.

Then, Captain Craig W. Drummond was the Army JAG military defense attorney assigned to Sandoval’s case. The new book covers the events from the moment the trigger is pulled on the battlefield through the trial that took place in a U.S. military compound on the outskirts of Baghdad during the height of the enemy uprisings in Iraq. The book brings the reader into the reality of modern warfare in a post September 11th environment where the enemy does not always wear a uniform. The detailed account of the investigation and trial testimony from elite Army snipers brings the reader into the courtroom and onto the battlefield of Iraq.

The book is receiving rave reviews and high praise from the legal and military community.

“A revealing, real-life courtroom drama, reminiscent of A Few Good Men.”–Hunter R. Clark, Director, International Law and Human Rights Program, Drake University Law School.

“Armed forces continue to operate in uncertain and complex environments and this story is an insightful and powerful look into the challenges and judgments faced by a young sniper deployed to the battlefield of Iraq.”–Brigadier General Jeffery L. Underhill, U.S. Army Retired, (Iraq Veteran).


SAVING SANDOVAL was published by Wild Blue Press which is owned by New York Times Bestselling Author Steve Jackson. The book is available now on Amazon.com. Craig W. Drummond is a Las Vegas attorney at the Drummond Law Firm practicing in Personal Injury and Criminal Defense. He received the Bronze Star for his service in Iraq. More information about Craig and the book can be found at DrummondFirm.com

Highs & No’s: The Do’s & Don’ts of Cannabis Investing

-By Caleb M. Zobrist, Esq., Glenn H. Truitt, Esq. & David J. Housey

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Investors – especially those unfamiliar with the cannabis market – have traditionally been hesitant to invest in an industry the federal government views as illegal. While this still holds true for most institutional investors, smaller firms and groups of wealthy individuals are becoming increasingly interested in cannabis.1 However, the majority of information surrounding these investments still lies somewhere between rumor and nuance, and the dizzying array of so-called cannabis “experts” can lead one to the conclusion that there is no such thing (there is, but they’re hard to spot).

The Cannabis industry has a lot in common with business in general. The industry includes agricultural, commercial processing, retail and laboratory businesses – each of which has a broad market of comparable enterprises for comparison. The maturity of these sectors also means that traditional accounting and financial reporting is more than adequate for business analysis purposes.

So, you’re looking to invest in marijuana. You’re not alone. Billions of dollars of private equity are flowing into the cannabis business – with billions more flowing into the rapidly growing public market for marijuana securities. However, if you have even a remote connection to this sector – you’ve likely been solicited (or know someone who has) with a private equity opportunity. Despite the federal illegality of the cannabis industry, in general (owing to the classification of marijuana as a Schedule I drug, as governed by the federal Controlled Substances Act), federal securities laws still apply to investment in marijuana businesses. Here’s a quick guide to what to do next.

Securities

The Supreme Court has adopted a flexible and liberal approach in determining what constitutes a security. In its famous decision of SEC v. W.J. Howey Co., 328 U.S. 293, 90 L.Ed. 1244, 66 S.Ct. 1100 (1946), the Court held that land sales contracts for citrus groves in Florida, coupled with warranty deeds for the land, and a contract to service the land, were “investment contracts” and thus securities. The Court stated that

[a]n investment contract for purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party. 66 S.Ct. at 1103.

In general, all securities offered in the U.S. must be registered with the SEC or must qualify for an exemption from the registration requirements. Registering securities (as publicly traded companies do) is an exceptionally expensive undertaking, and requires the full-time support of an experienced securities law firm. It is critical for the success of the issuance of private securities that they avoid registration by qualifying for a Regulation D exemption and properly documenting that exemption.

No matter what you are told by a cannabis company seeking investment, if you give them money, with an expectation of return on your investment without any material effort on your part: you are being issued a security. As a result, you should be provided with a private placement memorandum (“PPM”; a prospectus and required legal disclosure statement) and a Subscription Agreement (providing the terms of your investment – and your qualification as an accredited and/or sophisticated investor). The PPM must include information regarding its qualification for a Regulation D exemption.

Valuation

One of the greatest challenges facing investors in new markets is proper valuation of marijuana enterprises. Speculation and short supply can drive equity valuations into inflated multiples based on rapid growth expectations. Conversely, perceived risk can be overestimated and drive equity valuations into substandard positions. No matter what, the one valuation you should be skeptical of is the one provided by the issuing company. The offer, itself, represents a valuation (e.g. if you get offered 10% of a company for $100,000 investment – that’s a $1,000,000 valuation), but may also include detailed analysis to highlight the valuation discount or premium.

Nevertheless, you should have the pro forma financials reviewed by an independent financial professional – including an independent valuation, for perspective. The resulting quantitative analysis will provide important information on the nature of the offer you’ve been provided.

Compliance

For the amateur investor, legal compliance is likely your biggest concern. For professional money, the regulatory environment is just another variable in the valuation. While compliance risk has always been a material element of cannabis investing (and will be until marijuana is legalized at the federal level), it has become particularly sensitive in light of Attorney General Jeff Sessions rescinding the 2013 Cole Memo, which had directed US attorneys not to pursue properly-licensed marijuana businesses in marijuana-legal states.

If this repeal had gone unmentioned or unopposed, the increased risk would materially depress valuations and chill investment. However, opposition to the repeal was swift and widespread, including (at the federal level) U.S. Congressmen Polis of Colorado, Rohrabacher of California, and Blumenauer of Oregon sponsoring an amendment to the House’s next budget bill prohibiting the Justice department from spending money on the prosecution of legally-compliant cannabis businesses.

Additionally, Cannabis-legal states have indicated they will aggressively fight back any federal action taken to shut down state-legal Cannabis businesses. Many industry analysts cite the expected tax revenues that have already been budgeted, and the increase in local economies via job creation and the deep political unpopularity involved in eliminating or even reducing those revenues.

The bottom line is that cannabis investment remains at record levels with stable valuations and public sentiment strongly in favor of legalization (across both parties). Eventual legalization is all but inevitable.

Conclusion

It’s a great time to invest in cannabis, despite what you may have heard in the news. When it comes to investment, follow the money – and with little or no money exiting cannabis companies, it remains a bull market. However, once you’re ready to invest:

Make sure private securities offers are properly documented; and
Secure your own independent valuation.

Because a good investment can still be a bad (or illegal) deal.


Glenn H. Truitt, Esq. is a managing partner at Ideal Business Partners (www.idealbusinesspartners.com), a multidisciplinary professional services firm serving healthcare professionals with state-of-the-art legal, financial compliance and strategic advice, working together to lift up their practices. IBP consults with ComplyPro (www.mycomplypro.com), a HIPAA compliance services company, serving Nevada and southern California, and employing both traditional and digital compliance tools to develop comprehensive, customized compliance solutions for any size practice.

Malvika Rawal, Ph.D., J.D., is a law clerk at Ideal Business Partners. She received her Master of Science at the University of Delhi in Biomedical Sciences and her doctorate degree in Free Radical and Radiation Biology at the University of Iowa. She then received her Juris Doctor at the University of Iowa College of Law in May 2016. Rawal is deeply involved with ComplyPro, a HIPAA compliances services company.

1 Marijuana Business Daily. Marijuana Business Factbook 2017. p.6. https://mjbizdaily.com/wp-content/uploads/2017/05/Factbook2017ExecutiveSummary.pdf

Economic Expert Report: Credit Damages

credit

-By Stan V. Smith, PhD & Kyle Lauterhahn

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“Who steals my purse steals trash. ‘Tis something–nothing; ‘Twas mine, ‘tis his and has been slave to thousands. But he that filches from me my good name robs me of that which not enriches him and makes me poor indeed.” – Othello

Shakespeare’s character Iago offers this wisdom that has uncanny applications to modern consumer law. No one in William Shakespeare’s time was denied an auto Loan due to false credit reporting or was extended a mortgage loan that the lender knew the individual could never repay, leading to a foreclosure. But Shakespeare would still understand the damage done to one’s reputation. In modern times, a quality financial reputation – a good credit record – is very valuable, and one can become literally “poor indeed” when this is lost.

In November 2017, I had the privilege of speaking to many legal colleagues at the National Consumer Law Center (NCLC) Consumer Rights Litigation Conference in Washington, D.C. In a discussion session following the keynote speech by Senator Elizabeth Warren, I shared my research and experience regarding credit damage, the types of loses that can be claimed, and how these claims are to be valued. Here I share this knowledge with you.

Credit damage can arise from a variety of circumstances. Mistakes by consumer reporting agencies (CRAs, or credit bureaus) and by credit or information furnishers (Banks, credit card companies, etc.) result in credit damage to innocent Americans every day. Identity theft or identity confusion resulting in merged records is also a common cause of credit damage. Many errors and problems can arise from credit reporting agencies themselves. A recent revision of Equifax’s data breach assessment now shows a theft of over 143 million Social Security numbers, and counting. People seek credit damage compensation as a result of banks wrongfully extending mortgages during the credit boom that they could not afford, and upon which they subsequently have defaulted and have lost in foreclosure. Failure of banks to offer government-financed mortgage modifications for which applicants qualify can result in excess costs and credit damage. Credit damage also frequently occurs during a divorce when one party ruins the credit history of another on jointly held credit cards or loans. Separating legal responsibility for mortgage payments on a jointly owned house and on other jointly held credit can be problematic when the parties are in emotional and perhaps financial adversity. Further, people can also sustain credit damage when they are injured, sick or wrongfully discharged, and do not work for a protracted period, reaching a point where they cannot pay their bills.

Sometimes credit damage arises in unique and unpredictable ways. One plaintiff paid fire insurance premiums to a bank, along with the mortgage payments on his home. A bank employee embezzled the funds and never made payment on the insurance policy. When the house burned down, the owner stopped making mortgage payments and sued the bank to recover the uninsured losses. The bank disputed the claim and foreclosed on his house. This was reported to the credit bureaus resulting is significant damage to his credit. The damage lasted during several years of litigation, but the reported foreclosure was eventually reversed.

Often, credit damage is reversible. Innocent error can be often corrected, even if not easily. But frequently, even though caused wrongfully and through no fault of the consumer, credit damage may occur and cannot be reversed, except by the passage of time, and sometimes not even then. If a person defaults on a mortgage through a breach of contract by another, the report cannot be reversed. The credit bureaus cannot erase or reverse the correct reporting of a foreclosure or a bankruptcy even if the consumer wins a lawsuit against the tortfeasor that caused this. Foreclosures, late payments, bad debt in collection, and other derogatory information, unless put on in error, remains on a credit report for seven years; bankruptcy remains for ten years. Tax liens remain on a credit report as derogatory information for seven years after they have been paid. If the tax lien has not been paid, Equifax and TransUnion will show the unpaid tax lien indefinitely while Experian shows it for fifteen years. If during a divorce, one spouse informally promises to pay real estate taxes on a jointly held house, or income taxes on a joint return, and subsequently fails to pay, the other spouse can experience credit damage, possibly forever, unless the tax liens are eventually paid.

The damage may persist for as long as seven years in the case of an irreversible error (such as in the instance of the earlier-mentioned house fire) or up to ten years in the instance of a bankruptcy. Even if the bankruptcy results from breach of contract, and even if the consumer obtains a verdict in court that a breach has occurred, the Credit Reporting Agencies cannot reverse such derogatory information if the bankruptcy did occur, despite the fact that it arose through no fault of the consumer. In some instances, it may be difficult to anticipate when the damage might terminate because, after seven or ten years when the credit scores have been restored, former low levels of mortgage rates may not be available.

There can be a variety of consequences to credit damage, among them: (a) withdrawal or loss of job offers, (b) significantly higher borrowing costs on credit cards and loans and higher premiums on auto insurance, (c) reduced credit expectancy or capacity, (d) the considerable expenditure of time, energy and money to remedy the situation, and finally, (e) a significant loss of enjoyment of life. Using standard forensic economic methods, these damages can be valued and claimed in lawsuits against the tortfeasors, many of whom are subject to various consumer protection laws including the Fair Credit Reporting Act (FCRA 15 U.S.C. § 1681 et seq.) and its amendments, and the Fair and Accurate Credit Transactions Act of 2003 (FACT).

Various state and federal laws permit a wide variety of claims, including claims for punitive damages. Perhaps the easiest claims to value are the out-of-pocket expense arising from credit damage. The time lost, valued at some reasonable rate, along with out-of-pocket expenses including legal fees etc. can also be easily valued.

Frequently consumers make claims for loss of opportunity, in particular loss of job offers. If a person is offered a job at $45,000 a year and suffers a withdrawal of that offer as a result of credit damage, the loss can be the difference between the lost offer and the next best available alternative, for as many years as the reduced salary can be expected to persist. The loss of opportunity may be more than just a reduction in salary, it may involve a once-in-a-lifetime offer for a position that can never be regained.

Claims can also arise for higher-than-warranted interest costs on credit cards or loans. If a mortgage should have been issued at 4 percent, and the credit damage resulted in a mortgage rate of 6 percent, the two percent difference per annum over the life of the mortgage is a significant sum of money, and can easily be calculated.

Another credit damage claim that can be made is the loss or reduction in credit expectancy. Some consumers simply cannot obtain credit cards or loans at any rate whatsoever and hence cannot make major purchases such as homes, boats, or other assets that require loans, and must carry cash for all lesser purchases. Imagine a world where you cannot buy an airline ticket online or pay for your cell phone usage with a credit card, and where all transactions must be paid for in cash? This loss of credit expectancy can be valued by comparing the rate the consumer might have expected with the highest rate charged by credit card companies, as a floor on the loss of expectancy damages. The loss of credit expectancy is estimated by the cost of credit extended under normal circumstances versus the cost charged to those who are viewed as high credit risks to whom credit is extended, but at the highest rates charged. Normal credit costs are approximately 1 to 1.5 percent per month; the costs charged to high credit risk accounts can run to 3 percent per month or higher. For persons with prior good, or even fair, credit they had the ability to borrow considerable sums beyond his or her diminished credit. I frequently estimate this additional capacity of be at least $100,000, and likely more. This standby credit under normal conditions has a value similar to the value of a safety net for a trapeze artist, or the value of a term life policy for a person who continues to live a healthy life – the value does not depend on the actual use. It is an option, and options have value. In my earlier days, I had a seat on the Chicago board of Trade, formed in 1848 to help farmers manage their options against weather losses, price changes, and other financial ups and downs.

Finally, claims can be made and testimony can be provided for the loss of enjoyment of life, well-recognized in the State of Nevada. (See my article in Vegas Legal, August 2016 “Economic Damages in Nevada) Victims of credit damage frequently report going through protracted emotional turbulence and upset, experiencing significant loss of enjoyment of life. These damages can persist long after financial restoration is made as in some instances relationships are destroyed as a consequence of the credit damage. The standard process for evaluating the loss of enjoyment of life applies in these instances. Typically, consumers must be interviewed extensively to obtain detailed information about all these losses.

Credit damage and its consequences can arise easily in the lives of virtually any consumer despite public awareness and programs and laws to prevent this. The consequences can be financially and emotionally devastating. Forensic economists, using standard approaches, can assist in evaluating the losses.

While the filching of one’s good name and the resulting credit damage can arise from a variety of causes – and the consequences can make one very poor indeed – our legal system offers relief and the prospect of significant economic recovery for the aggrieved party.


Stan V. Smith, Ph.D., is president of Smith Economics Group, Ltd. headquartered in Chicago. Trained at the University of Chicago (one of the world’s pre-eminent institutions for the study of economics and the home of the law and economics movement), Smith has also taught at the university and co-authored the first textbook on the subject of economic damages. A nationally-renowned expert in economics who has testified nationwide in personal injury, wrongful death and commercial damages cases, Smith has assisted thousands of law firms in successful results for both plaintiffs and defendants, including the U.S. Department of Justice. To that end, Smith also developed the first course in forensic economics at DePaul University, and pioneered the concept of “hedonic damages,” testifying about the topic in landmark cases. His work has been featured in the ABA Journal, National Law Journal, and on the front page of The Wall Street Journal. Kyle Lauterhahn is a Senior Economic Analyst at Smith Economics Group in Chicago.

Meet The Incumbent: Judge Mark Bailus

Bailus

In 2017, Judge Mark Bailus was appointed by Governor Brian Sandoval to serve in Department 18 of the District Court. He is a graduate of Pepperdine University School of Law and was admitted to the Nevada Bar in 1980. Prior to becoming a judge, Mr. Bailus was a partner at the law firm Bailus Cook & Kelesis, with a focus on civil and criminal litigation and appeals.

Vegas Legal Magazine: What did you do before becoming a judge?

Judge Bailus: I was an attorney for over 37 years and I am one of the relatively few sitting judges who has an extensive background in both civil and criminal law at the trial and appellate levels.

VLM: What is the most memorable case you tried as an attorney before taking the bench?

JB: My most memorable or significant case was not a trial but rather, a complex tort litigation which resulted in a multi-million-dollar settlement. I, along with my former partner Michael Cherry, were lead counsel for all of the personal injury plaintiffs (except for one) and all of the uninsured property damage plaintiffs in the mass tort litigation commonly known as the “PEPCON Explosion Litigation” resulting in a multi-million-dollar settlement for the plaintiffs. A courtroom battle involving dozens of insurance companies and over 50 law firms resulted in a $71 million 1992 settlement with contributions from multiple parties that were divided among insurance companies on subrogation claims as well as the victims and their families. This case was significant to me as, at the time, I was still a fairly young attorney and the defendants had retained many high-powered law firms to defend them. The defendants embarked on a strategy to attempt to overwhelm my clients by filing numerous dismissal and/or summary judgment motions against them to circumvent a trial. Unfortunately for the defendants, their strategy failed. I fought long and hard in defending against the onslaught of pretrial motions filed by the defendants and was successful in defeating the same. As a result, this case was settled with the plaintiffs being fairly compensated for their losses and/or injuries.

VLM: What made you decide to run for judge?

JB: I had been an attorney for over 37 years and it was a new challenge that I was uniquely qualified to undertake due to my many years of experience, knowledge and success as an attorney before the state and federal courts in Nevada in both civil and criminal law.

VLM: What does being a judge mean to you?

JB: Being a judge is an honor and privilege that I very much respect. It has allowed me to make a difference. As a judge, there is nothing that is going to come before me that I am not prepared to handle. I have endeavored to make rulings based on sound legal reasoning and to draft clear, thoughtful and thorough decisions.

VLM: What is your favorite and least favorite thing about being a judge?

JB: I would say my least favorite thing as a judge is having to run for office. I have always been a straight shooter and this doesn’t always play well in politics. However, I am not going to change as I think the public will appreciate someone who is forthright.

My favorite thing is the interaction between myself and the litigants who appear before me. I always try to be patient, courteous and respectful to all litigants and most of all, be a good listener. No matter what my rulings are, I think the litigants appreciate the courtesies I extend to them.

VLM: Describe a situation where you had to support a legal position that conflicted with your personal beliefs? Please tell us how you handled it.

JB: I view a judge’s role is to enforce the laws that have been enacted by the legislature. When I think the law should be changed, I can express that to the legislators and I would be willing to do so and state my reasons.

VLM: What’s your biggest pet peeve caused by attorneys that appear in your courtroom?

JB: I’m not sure this is really a pet peeve, but I am insistent that the attorneys who appear before me are prepared and are civil to each other.

VLM: What is your best piece of advice for litigants and/or attorneys?

JB: As a follow up to the preceding question, I think the best piece of advice I could give to the litigants and attorneys is to be civil to each other and not make personal attacks and further, to have complete candor with the Court.

VLM: What is your passion outside of law?

JB: While I enjoy doing things with my family, I really don’t have any hobbies. I enjoy reading. However, being a judge consumes most of my time as I am either at work or I am constantly reading books and cases related to the law to gain knowledge, so I can make informed decisions. I can’t remember the last time I read a book for pleasure.

VLM: What do you love most about Vegas?

JB: The thing I love most about Las Vegas is the people. I am a long-time resident of Las Vegas with my family first coming here in 1955 and I grew up here and am a graduate of UNLV. I have practiced law in Las Vegas since my admission to the bar in 1980. I returned to [Las Vegas] after graduating from Pepperdine University School of Law to begin my legal career and start my family. Practicing law in Las Vegas has been very rewarding to me professionally. Most importantly, it has given me the opportunity to meet many wonderful people who have been a part of my life.

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The Parting Advice Of Justice Richard Posner

Posner

“I pay very little attention to legal rules, statutes, and constitutional provisions.”

-Richard Posner1

After authoring more than 3,300 judicial opinions, Richard Posner suddenly retired from the United States Court of Appeals for the Seventh Circuit in September of 2017.  An unofficial “exit interview” Posner granted to the New York Times affirmed the common knowledge of generations of attorneys: A great attorney knows the judge. Although not hostile to the judicial system, Posner’s exit interview reveals that courts rely on past precedent far less than practicing litigators would hope.

Litigators of all stripes inevitably contact an opinion authored or influenced by Justice Posner. The former Chief Justice of the United States Court of Appeals for the Seventh Circuit, and previously under consideration for the United States Supreme Court, Posner’s distinctive writing style was second only to the late Antonin Scalia.  Upon his 1981 appointment to the Court of Appeals, Posner’s interest in economics (he previously was an assistant to the Commissioner of the Federal Trade Commission) came to bear on his rulings at the same time that financial services and securities became a more prominent part of the country’s economy.

Today, Posner is recognized as being one of the leading voices advocating law and economics, grappling with the research of Nobel Prize recipients such as Ronald Coase and Gary Becker in his opinions and other writing. From 2004 until Gary Becker’s 2014 death, both Posner and Becker contributed regularly and prolifically to their joint blog.2 Posner’s non-judicial writing reached far beyond that realm, though, grappling with subjects including national security, literature, and—most relevantly—judicial thinking.

In his observation of judges, Posner notes that some “are, you know, reactionary beasts.”  Posner explained: “They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.” Despite this observation, Posner notes the “very strong formalist tradition in the law,” where judges sincerely apply the Constitution and relevant statutes—unless they themselves are unconstitutional—as if sacrosanct.

Where statutes, precedent, and even the Constitution do not matter, effective presentation steps into the breach. “A case is just a dispute. The first thing you do is ask yourself – forget about the law – what is a sensible resolution of this dispute?” Hardly an endorsement of “feels-over-reals” emotion-driven legal consequentialism, Posner’s view acknowledges the reality that the law will rarely permit an absurd result.

Within his interview, Posner acknowledges how this is done. In determining whether some precedent or other legal requirement obstructs a desired ruling, Posner notes “that’s actually rarely the case.” “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.” Just one more thing that law schools do not teach their students.

When in private practice, one of the sitting district judges for the United States District Court for the Western District of New York had a sign in his office that read, “whoever tells the best story wins.” Posner’s exit interview confirms the accuracy of this advice, even amidst all the disillusionment it may bring to legal formalists. This advice—also the title of Annette Simmons’ book about communicating more effectively—is regularly repeated by trial lawyers and more experienced litigators, but so infrequently ingrained in younger attorneys.

Posner’s advice is not a panacea. While well-regarded and even admired by many, Posner was a firebrand in his later years. In a July 2017 interview with Slate, Posner went out of his way to critique several Supreme Court justices, living and dead, decrying Brennan, Blackmun, Stevens, and Souter as “not giants.”3 “Anyone think there’s a giant or giantess on the Supreme Court today?” Posner asked before he abruptly retired, slipping out from under the specter of being reversed by the country’s highest court.

What the now-former justice recommends may not be advisable before every judge. Some of them, if not many or even all, will decide a motion or even an entire case based on the applicable subsection buried deep within the Code of Federal Regulations.4 His parting commentary vindicates so much of what experienced litigators have told and tried to train dozens if not hundreds of other attorneys to do, though, that it can hardly be ignored.


Malcolm (“Jay”) DeVoy is the owner of DeVoy Law P.C. DeVoy focuses on providing representation in commercial disputes, serious personal matters, and advising medical professionals and practices about issues including HIPAA, Stark Law, and the Anti-Kickback Statute.

1. Adam Liptak, An Exit Interview with Richard Posner, Judicial Provocateur, The New York Times (Sept. 11, 2017).

2 The Becker-Posner Blog, available at becker-posner-blog.com (last accessed Sept. 12, 2017).

3 Joel Cohen, Should There Be Age Limits for Federal Judges?, Slate (July 5, 2017), available at  http://www.slate.com/articles/news_and_politics/jurisprudence/2017/07/should_there_be_age_limits_for_federal_judges.html (last accessed Sept. 13, 2017).

4 See, e.g., Gardner v. Henderson Water Park, LLC, 133 Nev. Adv. Op. 54 (2017); Nationstar Mortgage, LLC v. SFR Investment Pool 1, LLC, 133 Nev. Adv. Op. 34  (2017).

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In Response To The Resurrection Of The American Trial Lawyer

Jury

In Response To The Resurrection Of The American Trial Lawyer:

The Disappearance Of The Civil Jury Trial

By Robert T. Eglet, Esq.

The article I wrote for Vegas Legal Magazine’s spring issue—“Death of the American Trial Lawyer”—resulted in a surprising yet encouraging response from readers, both locally and across the country. The publishers informed me that the article has been read online by more than 200,000 viewers, and I have received hundreds of emails from readers requesting more information about the danger that the disappearance of the civil jury trial poses to our justice system. More importantly, readers are asking if anything can be done to reverse this alarming trend.

Death of the American Trial Lawyer

In “Death of the American Trial Lawyer,” I briefly discussed the importance of the civil jury trial to the American justice system and documented the steep decline in the ratio and absolute number of civil cases resolved by jury trial over the past 80 years. In the 1930s, 20 percent of all civil cases in both Nevada and in the federal courts were resolved by jury trial. Today, the average number of civil cases concluded by a jury’s verdict is a quarter of a percent, and in some states it is effectively zero percent.  I outlined the major causes of this decline as being Alternative Dispute Resolution (ADR), or what many legal scholars refer to as the privatization of the civil justice system; the exponential rise of litigation costs including out of control, and often unnecessary, pretrial discovery prompted by billable hour requirements; the adherence to a judicial philosophy that case settlement is better than trial, no matter the situation; the rise of case dismissals via summary judgment; federal pre-emption that guts an otherwise viable action; and, the biggest enemy of the American consumer: tort reform.

I suggested that one foreboding consequence of the threat of civil jury trial extinction is that experienced trial lawyers are quickly becoming relics of the past. The drastic reduction of civil jury trials, both in ratio and absolute number, has lead to a lack of understanding of the true settlement value of most cases. This, in turn, has led to a majority of cases settling for less than their true value, and resulting in injured victims losing hundreds of millions of dollars annually in lost compensation to which they are legally entitled. Further, the rapid decline of jury trials negatively effects our democratic form of government. The drastic reduction of civil jury trials ensures that a much smaller segment of the population has the opportunity to participate in jury service.  Jury service is the only opportunity most citizens have to directly effect government decisions.

In this article, I outline generally the history and importance of the civil jury trial to Americans, and identify some solutions to revive it.

History and Importance of the American Civil Jury Trial

The civil jury trial has deep roots in our country. The American colonists, governed by English law, believed that trial by jury was a fundamental right, and one necessary to ensure a government by the people, for the people. The right to a jury trial in the administration of justice was considered to be indispensable by our nation’s founders and non-negotiable by the leaders of the American revolution. They believed that the right to trial by jury could be traced back in an “unbroken line” to chapter 39 of the Magna Carta, issued in 1215, which stated: “No free man shall be taken, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.”

England’s repeated attempts to restrict the right to a jury trial in the colonies was a major grievance leading to the Revolutionary War. In nearly every major document and speech delivered before the revolution, the colonists portrayed trial by jury as, if not their greatest right, one that was indispensable. Included in the grievances against King George III listed in the Declaration of Independence was: “[D]epriving us, in many cases, the benefits of trial by jury.”  The only other right eventually included in the Bill of Rights mentioned specifically in the Declaration of Independence was the prohibition against quartering troops.

The early state constitutional drafters considered the civil jury trial an important instrument for the protection of individual liberties. The Massachusetts Body of Liberties, enacted in 1641, was the first colonial charter to provide for civil and criminal jury trials by name. By contrast, this same chapter made no mention of free speech rights or freedom of the press, and secured freedom of religion for Christians only. The Bill of Rights in the 1776 Virginia constitution provides that: “[i]n controversies respecting property, and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.” The constitution of Pennsylvania followed Virginia’s in affirming the right of trial by jury in civil cases: “[i]n controversies respecting property and in suits between man and man, the parties have a right to trial by jury, which ought to be sacred.”  The 1776 constitution of North Carolina, stated: “[i]n all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of people, and ought to remain sacred and inviolable.” Similar language is found in the constitutions of Vermont in 1777; Massachusetts in 1780; and New Hampshire in 1784.

The right to jury trial in criminal cases was secured by the framers when they incorporated it directly into the main body of the U.S. Constitution.  However, they did not provide for the right to civil jury trial, or any of the other individual liberties listed in the Bill of Rights.  In fact, the U.S. Constitution was nearly defeated over its failure to guarantee the right to civil jury trial.  In 1791, during its first session, congress drafted the Bill of Rights, securing the right to civil jury trial in the 7th amendment.

The American system has always considered the civil jury a critical part of our democratic government because more than any other single institution, juries give citizens the opportunity to participate in government, which both educates and enhances their regard for the American system of justice. Jury service is the only place where average citizens can participate directly in government in a way that has a direct impact on events.

Civil jury verdicts are public, and they affect all interests of the community and represent the American idea of justice. Civil juries are often referred to as the “conscience of the community” and they stand as indispensable guardians over corporate negligence and corruption. Civil jury verdicts have led to significant improvements in the safety of consumer products, industrial machines and health care products. They have deterred arbitrary use of power by officials and employers, and the civil jury trial is often the only way for victims of civil rights violations to obtain justice. It is well recognized that product manufacturers, hospitals, pharmaceutical companies, and other defendants in personal injury actions have redesigned products; improved medical care; and have taken other steps to improve or save lives following jury trials and verdicts.

In 2008, my firm and I took on a case with the intent of making far-reaching changes in the pharmaceutical and medical fields. Over 100 Las Vegas residents were infected with hepatitis C as a result of faulty injection practices fueled by the drug companies’ increasing profits at any costs attitude. The drug companies knew the risk of hepatitis C transfer and notified the Federal Drug Administration (FDA) of such risks well before the Las Vegas outbreak; but to save money, packaged their drug in an unsafe and cheaper form. In 2010, the first of several Las Vegas civil jury trials ensued garnering a $505 million verdict for a headmaster and his wife of a prestigious local high school who contracted hepatitis C during an endoscopic procedure. The next verdict we obtained was for $183 million, and the verdict after that was obtained by another firm for just over $100 million. Finally, during the last trial where we were convinced the verdict would be over $1 billion, (and we believe the defense attorneys were equally convinced), the cases were finally settled.

Those verdicts allowed the victims that my firm represented to receive the compensation they deserved. They also allowed other firms in our jurisdiction to obtain settlements higher than they would have, had these trials not occurred.  It is well known in our community that the cases that settled early, before these verdicts, settled for significantly less.  More importantly, injection practices were changed nationwide, in an attempt to prevent this type of outbreak from occurring, as it had on multiple prior occasions in other parts of the United States and around the world. I am confident these practices would not have changed without these jury trials and verdicts.

As you can see, the civil jury trial is more than a process for bringing a grievance to resolution. It is a pillar of our democracy necessary for the protection of individuals against tyranny, repression, and mayhem, and to deter such injustices in the future.  Jurors do their duty with no further ambition that their decisions could result in some future advantage for themselves. Jurors come to court, deliberate, and go back to their homes and work better off for their service. In other words, the civil jury trial system cannot be bought. It is our purest form of justice.

Jurors differ from judges because of the values they bring to cases and the freedom they have to apply those values. And as former chief justice William Rehnquist aptly noted, the right to civil jury trial was guaranteed by our Bill of Rights “precisely because the framers believed that they might receive a different result at the hands of a jury of their peers than at the mercy of the sovereign’s judges.”

In his book We The Judges, the late U.S. Supreme Court Justice William Douglas wrote:

A jury reflects the attitudes and mores of the community from which it is drawn. It lives only for the day and does justice according to its lights. The group of 12 who are drawn to hear a case, makes the decision and melts away. It is not present the next day to be criticized.  t is the one governmental agency that has no ambition…it is as human as the people who make it up. It is sometimes the victim of passions. But it also takes the sharp edges off a law and uses conscience to ameliorate a hardship. Since it is of and from the community, it gives the law an acceptance which verdicts of judges could not do.

Juries have more latitude than judges to make difficult and unpopular decisions. They deliberate in secret, they don’t have to explain their decisions, and they are typically protected by rules which limit post-verdict interviews. Studies show that jurors uniformly rate both their experience and the jury system highly while citing their service as being a major and moving experience in their lives. While prospective jurors often grumble over their duty to serve, I am always amazed at how proud and grateful they are for having served.

When disputes are resolved without trial there is no public record, which allows wrongdoers to suppress information about dangerous products, defective drugs, negligent professionals, and other wrongdoing. The United States Supreme Court and constitutional scholars have repeatedly pointed out the right to civil jury trial was embraced by our nation’s founders not because juries were the most economical way of resolving disputes, but, far more fundamentally, because “in important instances…[A] jury would reach a result that the judge either could not or would not reach.”  And as one commentator observed, “bringing the law to the people may not make it more just in all cases, but it will make it the law of the people, which is what it should be in a constitutional democracy.”

Thomas Jefferson recognized that a jury of our peers is the most effective check against state power and has been a cornerstone in our judicial system since our nation’s birth.  It legitimizes the law by providing opportunities for citizens to validate civil statutes and common law, and to apply them to the facts of specific trials creating a common sense of justice. Further, the United States Supreme Court has recognized in numerous decisions that the primary function of the jury system is to provide a check on official or arbitrary power.

A Call To Action

The American public has remained largely silent over the disappearance of the civil jury trial.  Do they not know they have this right, the importance of this right, or that it is presently on the endangered rights list? Tragically, there is scant public education about the history and importance of the civil jury trial to our democratic principals.  Notwithstanding the historic and current importance of the civil jury trial, it is one of the least understood features of our judicial system.

Legal education programs teach little about the civil jury institution. Even organizations committed to protecting the Bill of Rights exalt limited public support for our right to civil jury trials. Outside of the members of the bar, there are no programs or efforts to educate the public about the history and importance of the vanishing civil jury that I could find. The American public needs to be informed about this fundamental right and how it significantly enhances their ability to hold accountable institutions and individuals who misuse their power over other people.

In 2014, of the 29 states that reported, the ratio of civil jury trials to civil disposition ranged from a low of 0.06 percent to a high of only 0.55 percent. Today, the average ratio is 0.25 percent and the downward spiral is continuing toward zero. The decline of the civil jury trial should be a call to action for all of us who are concerned about the health of our democracy and the preservation of the 7th amendment.


Eglet


Potential Solutions

  1. Full-Court Funding

Critical to resurrecting the American trial lawyer and the civil jury trial is ensuring that our courts are fully funded at both the federal and state levels. Court funding issues have clearly impacted and contributed to the decline of civil jury trials. We need more courtrooms and judges to preside over cases. While the number of jury trials has declined, the courts’ caseloads have significantly increased placing pressure on trial judges to move cases, resulting in those same judges pressuring litigants and their lawyers to resolve their disputes outside the courtroom and without a jury.

  1. Removing All Penalties for Exercising the Right to Jury Trial

If a party loses a jury trial, courts and legislation often impose penalties for such loss, including paying the opposing parties’ attorneys fees and costs. Any penalty imposed after a jury trial that would not be imposed as a result of a settlement of the case is a not-so-subtle infringement of our 7th amendment liberty. This applies to any loser-pay system, including the current offer of judgment rules provided for in the federal rules of civil procedure and in most state civil procedure rules or statutes.

Further, there should be no additional fee for a litigant to request a trial by jury.  In many jurisdictions, including Nevada, a fee is required to request a jury trial. In my view, there should never be any financial cost to exercise a constitutional liberty.

  1. Training and Mentoring Programs

Experienced trial lawyers have a responsibility to raise the next generation of trial lawyers.  As a result of the mentoring I received as a young lawyer from Mitch Cobeaga, Franny Forsman and Rex Jemison, I have been able to achieve the results I have as a trial lawyer. I believe my partner, Dennis Prince, would agree that his successes were launched, in part, because of our mentoring relationship over the years.

My first job as a lawyer was with a large defense firm. This was a wise route for any new lawyer that wanted to try cases, because at that time, insurance companies and institutional clients appreciated that to have an ongoing pool of experienced trial lawyers from which to chose to defend their interests, they needed to pay for the legal training of the young lawyers. They understood that for young lawyers to get the appropriate training, they needed to permit their defense firms to have both experienced lawyers and a young lawyers attend trials and pay for their time. This provided defense firms with the ability to train and mentor their associates into experienced trial lawyers.

Somewhere along the way, insurance companies and institutional clients lost that foresight. Now, they refuse to pay for young, inexperienced lawyers to attend trial with experienced trial lawyers, eliminating their law firms’ ability to train the next generation of defense trial lawyers. Many large firms are not hiring lawyers right out of law school any longer, and instead, are making lateral hires of more experienced lawyers, compounding the problem of young lawyers not gaining any meaningful trial experience.

A number of states, including Nevada, have implemented mandatory mentoring programs because more and more new lawyers are not finding jobs with law firms that are able to provide them mentoring. Many new lawyers are being forced to go into private practice on their own (or with other recent graduates) with no experience.  This, too, is compounding the problem of young lawyers obtaining trial experience.  While these mentoring programs are a good start, they are not providing adequate training for new trial lawyers.

The answer may lie in the development of mentoring programs where the lawyer/students are assigned actual cases to litigate with more experienced trial lawyers. Florida has a program of this nature called Lawyers Advising Lawyers (LAL)— formerly SCOPE (Seek Counsel of Professional Experience). LAL provides assistance when a young attorney confronts a problem that is unusual, or when they are in an area of law unfamiliar to them. LAL offers quick access by telephone to an attorney who has experience with and knowledge of the particular problem or area without charge.

Expounding upon this mentoring idea, I would suggest trial lawyers allow access to their trials to young, aspiring trial attorneys. A young lawyer might agree to assist in a trial to obtain the otherwise unobtainable trial experience at no out-of-pocket cost to the trial attorney. These cases could be managed at a low cost, if the experienced trial lawyers were willing to spend time teaching and mentoring inexperienced lawyers in exchange for these lawyers providing free legal work in their preparation and trial of cases.  I understand the short-term financial burden this places on the young, aspiring lawyer who is working without pay; however, the experience obtained would set them up for their professional lifetime.

  1. Limiting Discovery

Discovery costs have become a substantial roadblock to civil cases being resolved by a jury. Nearly all information is now stored on computers, which has made discovery (or rather “e-discovery”), in many cases, prohibitively expensive. This is largely caused by the tactic of institutional clients engaging in “digital document dumps.”  This tactic is routinely used when injured victims or their lawyers don’t have the resources—or the case does not warrant the resources—to mine these “dumps” for the kernels of information relevant to the case. Trial judges and discovery commissioners must have the discretion, and be willing, to limit this type of discovery and to prevent parties from engaging in abusive discovery tactics. Our federal and states’ supreme courts should consider amending their discovery rules to consider both the resources of the parties and the issues at stake, as well how the digital age has changed discovery, in determining the methods and scope of discovery.

  1. Limiting Experts

Over the last two decades, experts have been routinely and unnecessarily used in lower value cases. This is now a common tactic used by insurance companies and institutional parties when they face lawsuits filed by ordinary people—in order to drive them to settle their cases for much less than their true value—because the plaintiff or his or her lawyer cannot afford to hire superfluous rebuttal experts. Trial courts and discovery commissioners should have the discretion and authority to limit or not permit expert witnesses in these smaller cases.

  1. Expanding the Short-Trial Program

The short-trial program has proved to be quite effective in disposing of smaller cases in an efficient and more cost-effective manner. Short trials limit the trial time typically to one day and allocate specific time parameters to each party to present their case. This forces the parties to be more efficient by thinking carefully about how to allocate their limited time most effectively. Consideration should be given to expanding this program to include short trials with three- and five-day limitations. That would capture more cases that parties are not willing or able to try in one day, but would be able or willing to try with three-day or five-day time limitations.

I would argue that the number of jurors in the three- and five-day short trials should be increased to at least six, if not eight.  Every study done on this issue shows that the larger the jury (up to 12), the better the decisions. Of course, limiting discovery and the use of experts must be part of this program in order to reverse the decline of civil jury trials.  Understand, however, there are cases that are just not appropriate for the short-trial program. The higher the case value, the less likely you should enter into a short-trial as a jury may equate less time addressing the case with a lower verdict.

  1. Utilizing Justice Court

During the 2015 session, Nevada’s state legislature increased the jurisdictional limit of justice court to $15,000. Nevada’s’ mandatory arbitration program does not apply to cases filed in justice court.  Therefore, a case with a value of $15,000 or less can be tried in justice court without going through arbitration and then filing a trial de novo, which is required by the rules governing district court. Further, the award of costs and attorney fees for the prevailing party from a civil jury trial are mandatory in justice court.   While, as I delineated above, I do not favor loser-pay sanctions, they do apply in justice court cases giving plaintiffs an incentive to file in justice court.

  1. Collaboration and Specialization

Although this sounds like self-promotion, I truly believe there is no better way to practice than to collaborate with those you believe to be the best specialized trial lawyers in your jurisdiction. Not only will this give you the backing you need when negotiating your case, but it also gives you the resources and experience of those with whom you associated.

Eglet Prince is built on the concepts of specialization and collaboration. We limit our practice to personal injury, product defect, wrongful death, and insurance bad faith so that we can be the most experienced in those areas. We collaborate with other law firms in the handling of significant injury cases. In some instances, our collaboration is a result of a Goliath-type defense mounted by the other side. More often it results from lawyers seeking us out that want an extra advantage. We are a trial firm that handles complex cases that most other personal injury firms do not have the resources, time or experience to prepare for or try. Collaborating allows the full value of the case to be obtained for the clients. Over 90 percent  of Eglet Prince cases are referred to us from solo lawyers and law firms, both locally and from around the world, who ultimately receive a greater net fee by bringing us into the case. We also have collaboration agreements with law firms who we refer smaller less complex cases, and mentor and assist them when necessary in their trials or trial preparation.

There exists an opportunity for several young energetic lawyers or law firms to create collaborative agreements with law firms who can not or will not employ the resources necessary to try these small and mid level cases before juries. In my opinion, it is the only way insurance companies will begin settling these smaller and mid level cases for their actual value.  If we work as a team in our legal community, the value of our clients’ cases will be reflected in the offers the insurance companies eventually make.

  1. Eradicating the Disease of Tort Reform

How many times will we hear the insurance industry “cry wolf” until the truth is revealed to the American public? The cries are always the same:

“Americans are lawsuit happy.”

“Frivolous lawsuits are clogging our courts.”

“Juries can’t be trusted because they routinely return outrageous verdicts that far outweigh the actual damages.”

“Medical malpractice lawsuits drive up healthcare costs for everyone.”

“Malpractice lawsuits are forcing doctors out of practice or to leave our state for states with damages caps.”

“Malpractice lawsuits drive up a doctors malpractice insurance rates, and caps will lower their rates.”’

All of these myths are propaganda invented by big business and the insurance industry, both of which want to scare Americans into relinquishing their 7th amendment liberty.

The infamous McDonald’s hot coffee case is the first example that proponents of tort reform love to cite.

“The lady goes through a fast food restaurant, puts coffee in her lap, burns her legs, and sues and gets a big settlement. That in of itself is enough to tell you why we need to have tort reform,” quoting former U.S. Congressman, Republican presidential candidate and present Governor of Ohio, John Kasich, while he was a member of congress.

The actual facts bear reciting:

  1. Stella Liebeck suffered third-degree burns to her inner thighs, genitalia and groin and was hospitalized for eight days requiring numerous skin grafts.
  2. LIebeck was a passenger in the vehicle being driven by her grandson.
  3. Liebeck’s grandson pulled over and stopped his vehicle so Liebeck could add cream and sugar to her coffee.
  4. The Ford Probe of LIebeck’s grandson had no cup holders, so LIebeck placed the cup between her legs.
  5. While trying to get the lid off, the coffee spilled on her sweatpants, immediately soaking through to her skin.
  6. LIebeck went into shock and her grandson rushed her to the emergency room.
  7. Prior to this, McDonald’s received more than 700 complaints of serious burns caused by their coffee being served too hot.
  8. McDonald’s policy was to serve coffee at a temperature between 195 and 200 degrees, despite knowing that temperature would cause third-degree burns in seven seconds or less.
  9. Liebeck tried to settle the matter with McDonald’s before hiring a lawyer for merely her medical expenses of less than $20,000, an offer vehemently rejected.
  10. An independent mediator recommended McDonald’s settle the case for $225,000, which McDonald’s rejected.
  11. Liebeck required 2 more years of additional medical treatment which greatly increased her medical expenses.
  12. The jury awarded Stella $200,000 for her compensatory damages, but found her 20 percent comparatively negligent. Thus, reducing the award to $160,000.
  13. The jury assessed punitive damages against McDonald’s of $2.7 million, which was equal to roughly two days of McDonald’s coffee sales profits. However, the trial judge reduced this to $480,000, but the judge found that assessing punitive damages against McDonald’s was appropriate to punish and deter the company for its wanton conduct and to send a clear message to McDonald’s that corrective measures were needed.
  14. McDonald’s appealed and the case settled for an undisclosed amount widely reported to be between $400,000 and $600,000.

When the true facts of the case are reported, most people recognize that this case was neither frivolous, nor was the verdict excessive.

The playbook for tort reform was quite simple. Major domestic and foreign corporations donate vast sums of money to the U.S. Chamber of Commerce and other lobbying groups, and Karl Rove and others direct that money into to the campaign coffers of politicians wiling to back tort reform. However, in 1995 President Bill Clinton vetoed a tort reform bill that favored big business, but would have devastated the American consumer and eroded our 7th amendment rights. Rove and his cronies responded by taking tort reform to state legislatures. The chamber and big business began funding state political races and running ads under the names of associations disguised to look like groups of “concerned” citizens.  The ads hammered into the American psyche the lie that frivolous lawsuits were ruining our economy and our country, using the distorted truth about the McDonald’s hot coffee case and other cases they created out of thin air.

Numerous states passed tort reform bills stripping the public of its 7th amendment rights.  When state supreme courts started finding many of these tort reform bills unconstitutional because they infringed upon a citizen’s right to trial by jury, Rove and company began a new strategy of targeting state supreme court judges in their re-election campaigns who had upheld the 7th amendment liberty, replacing them with judges who were willing to turn a blind eye to the unconstitutional tort reform legislation passed by the state.

The fact is, Americans do not have a frivolous lawsuit problem. The Rand Institute for Civil Justice, recognized as one of the most independent and respected think tanks in the country, found that only 10 percent of people injured by the actions of others seek compensation and only 2 percent of them file lawsuits. Since 1991, tort cases have made up only 5 percent of all civil cases filed. Additional reports have proved that while our population has grown, personal injury lawsuits have decreased by more than 25 percent between 1999 and 2008 alone, and they represent only 1.3 percet of all civil dispositions. Study after study show that frivolous lawsuits are rare, and nearly non-existent. Even Victor Schwartz, a historically huge proponent of tort reform, admitted: “There is no question that it is very rare that frivolous suits are brought against doctors.  They are too expensive to bring.”

Using a campaign of deception, tort-reform advocates have turned injured victims into greedy liars and their lawyers into unscrupulous, opportunistic parasites. What big business and the insurance industry doesn’t tell you is that multimillion-dollar verdicts are rare. The Bureau of Justice Statistics found that the median plaintiff verdict is well under $50,000, and only 5 percent of plaintiff verdicts are a million dollars or more.

Healthcare malpractice settlements and verdicts make up only 0.3 percent of national healthcare costs. The National Association of Insurance Commissioners agrees that the total amount of money spent annually defending medical malpractice claims and compensating victims is $7.1 billion. What is actually driving healthcare costs to rise is preventable medical errors, which account for an additional annual cost of $29 billion of the $2.2 trillion of healthcare spending.

Over the past two decades, the number of licensed physicians has significantly increased and is at an all-time high. The number of practicing physicians per number of people in our country has never been higher. From 1990 to 2010, the number of physicians increased by 40 percent, while the increase in the U.S. population grew by only 18 percent. The number of physicians in every state has increased, and in most states the increase in physicians has either matched or outpaced population growth.  There is no data to support the claim that capping medical malpractice damages helps to attract or keep doctors. In reality, there are many more doctors practicing in states without damages caps than in those with caps.

There is no evidence that medical malpractice lawsuits drive up malpractice premiums.  The National Bureau of Economic Research found that “increases in malpractice payments made on behalf of physicians do not seem to be the driving force behind increases in premiums.” Further, Americans for Insurance Reform found that “rate increases were rather driven by the economic cycle of the insurance industry, declining interest rates, and investments.” And, damage caps do not lower premium rates for physicians. Insurance companies pay less money for malpractice clams in states with damages caps, but they do not pass those savings on to doctors by reducing their premiums.  After the state of Texas passed legislation capping damages in healthcare malpractice cases in 2003, the nation’s largest medical malpractice carrier told the Texas Insurance Commissioner that caps had a minimal impact on premium rates, while the company announced a 19 percent increase in physicians’ malpractice insurance rates. In fact, the American Insurance Association has acknowledged that, “we have not promised price reductions with tort reform.”

Tort reform is a fraud against the American people. It benefits neither the public, nor healthcare providers. It simply increases profits for insurance companies and insulates domestic and foreign corporations from compensating people whom they have caused harm. The fraud must be exposed, and all tort reform legislation repealed.

When a person who is injured by the negligence or defective product of another takes their case to trial, they are engaging in an extraordinarily heroic act. To file a lawsuit and litigate through trial is not a simple undertaking. The plaintiff will be attacked by the defendant in all sorts of ways, and the case will likely drag on for years. In the meantime, their life will be put on hold.  The willingness to go to trial to gain justice is heroic. This truth must be made known to our citizenry. The public must be made to understand that when a person wins a civil case, they win it for all of us, as well as gaining justice for themselves.

10. Predictive Analytics

“For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.” — Justice Oliver Wendell Holmes Jr.

Predictive analytics is technology that learns from experience and from data to predict the outcome and/or behavior of individuals in order to drive better outcomes or better decisions. It is essentially “machine learning,” which is exponentially getting faster, better and more efficient. Computers can now look at tendencies and trends and can actually learn. By leveraging the quantitative strength of computers, lawyers can more accurately forecast how events will play out in a case and allow lawyers and their clients to avoid costly mistakes, get a better vision of the strengths and weaknesses of a case, and increase the odds of obtaining a favorable outcome.

Predictive analytics uses advanced machine learning algorithms and proven rigorous statistical methods to forecast the probabilities of various outcomes. The probability forecasts produced can aid settlement negotiations and decisions about trial.  Potentially, this could save billions of dollars in settlement errors and mitigate the risks of trial. Statistics show an estimated 60 percent of legal cases have settlement value errors.  As I noted earlier, 99.75 percent of civil cases are settled. Jury trials today are avoided at all cost due to the perceived unpredictability of a jury.

The practice of law includes prediction. Lawyers predictively answer client questions daily such as, “What are the odds of winning this case, and how much do you think this will cost me?”  Even Justice Holmes envisioned over a century ago that “the number-crunching masters of economics” will trump the vast majority of lawyers who still rely solely on experience, historical case information, and intuition to predict the outcome of a case.  Even the most exceptional lawyers are inherently limited in their capacity to retain and process the information necessary to make well-informed judgments.  Computers, while lacking the ability to frame interesting questions or draw conclusions as lawyers, are far better at storing, processing, and summarizing large volumes of information.

The technological advancement in computing power and data science has ushered in a new era…the era of Big Data. Google, Facebook, IBM, and countless other technology companies, use these new capabilities to market products and ideas with a level of effectiveness never before seen. Predictive analytics is now universally accepted and used widely by many industries to predict outcomes and make better decisions, and was a major factor in predicting the last presidential race.  It is imperative that trial lawyers catch up to this data-centric approach found in almost every other industry.  The common practice of heavy weighting historical trial outcomes fails to adequately capture present conditions, hampering the accuracy of its predictions. Predictive analytics, unlike historical performance data commonly used for this purpose, takes into account current public sentiment. Real-time predictive analytics provides a great advantage, creating a tool that allows trial lawyers to test the core case arguments identified during discovery against a series of juries, representative of the available jury pool in the location where the trial will take place. A resulting predictive model can be used to inform the settlement negotiations and aid in the decision of moving forward to trial.  When cases proceed to trial, the resulting model can be used during jury selection, to insure maximum probabilities of a favorable decision and the largest possible verdict.

When Big Data supplements a community values and beliefs survey contained within a typical jury questionnaire, more information about a juror’s community is available to the lawyers. This increase in information, in turn, provides trial lawyers with more information about what juror traits are beneficial. Research shows that an individual’s online presence can predict that individual’s personality, and Big Data provides more data points on how to determine which individual jurors should or should not be selected. Once the parties determine a community’s attitudes and values, trial lawyers can determine what qualities and traits are desirable in jurors within that community.  Trial lawyers can then combine these qualities and traits into so-called “bad juror” or “good juror” profiles to create “persona jurors.”

If we as trial lawyers can pool our data and keep a collective bank of case information and trial and settlement outcomes, the better and more accurate all outcomes become. Data is always predictive, and as the data we collect grows, we can put that into a predictive model to extract the “golden egg,” or prediction model, that will be the key to making better decisions. The more data we collect and input, the higher the statistical significance the outcomes will be and the more we can apply this to building our trial stories, and forecasting trial outcomes with more accuracy.

Intuitive and experiential expertise is losing out to number crunching. In fact, that competition has already been lost. Quantitative analysis has been openly embraced in virtually every major business sector…except law. Shortly, there will be a seismic shift in the legal profession. The smartest, savviest lawyers are now supplementing their practice experience and intuition with insights obtained from big data to best inform their judgment. Predictive analytics and data-driven strategies will be paramount to the legal industry of the not so distant future. Technology that leverages legal data will move the practice of law forward in new directions. There are more tools than ever to facilitate this paradigm shift.  Big data and predictive analytics can be used by trial lawyers to improve settlement evaluations, fine-tune trial stories, and make sound decisions of whether to settle or take a case to trial.

For any of you “Trumpsters” who haven’t read a book or current events journal in 30 years, and get all of your information from watching “the shows” and movies, I’m talking about “Moneyballing” trial practice.

The Beginning?

Going back is not an option. Moving forward is always the only path. Professionals, just like people, who live in the past and long for the so-called good old days, are already dead. They just don’t know it yet.

It has been nearly 30 years since I walked into a courtroom for the first time to try a case. Yesterday’s art and science of trial work is as extinct as the Yellow Pages.  When I began trying cases, my entire trial presentation was hand written on yellow legal pads.  My demonstrative exhibits were blow-ups glued to white cardboard.  All letters, legal briefs and pleadings were dictated into hand-held mini cassette recorders and the tapes were transcribed by legal secretaries. I did all my legal research in an actual library with real books. We had to actually file hard copies of our pleadings at the courthouse and physically serve them on opposing counsel. Today, my firm uses no paper, except when the trial courts makes us present a set of exhibits on paper for their records.  We have no legal secretaries, only paralegals. All of our lawyers do all their legal research from their computers and type their own letters (or more often, emails), legal briefs and pleadings. We take nearly all out-of-town depositions from the comfort of our officers or conference rooms using digital conferencing. Trials are prepared and presented with laptop computers, iPads and massive digital monitors, using trial presentation software and applications…many of which we have developed within our firm. Instead of legal secretaries, file clerks and runners, we employ trial presentation and animation designers, software programmers and e-discovery miners.

Trying to go back is like wearing a 30-year-old suit that looked good when you were 27.  It doesn’t fit, the fabric sucks, and you will never look 27 again, so go buy a new suit that fits the body you have today. We all need to adapt to the present and anticipate our future circumstances. We must re-think the way we prepare and try cases, as well as how we manage the business of law, if we want to stay relevant and survive the future of trial practice.

I believe in the jury trial. I define who I am as a “trial lawyer.”  But, I also understand that in order to resurrect “The American Trial Lawyer,” we must possess not only the will to try more cases, but the willingness to change the way we try them.


Robert Eglet has tried more than 120 civil jury trials to verdict, including some of the largest personal injury verdicts in the country in 2007, 2010, 2011 and 2013. Eglet was named National Trial Lawyer of the Year in 2013 by the National Trial Lawyers Association and National Lawyer of the Year in 2010 by Lawyers USA. He has been honored twice by the Nevada Justice Association as Trial Lawyer of the Year (2005, 2012) and in 2013, Eglet received the National Thurgood Marshall Fighting for Justice Award. The National Law Journal has named Eglet’s firm as one the “12 Best Plaintiff’s Law Firms in the Country” and one of the “50 Best Trial Firms in America.”  Eglet lectures regularly on trial practice and innovation in the courtroom.\

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Small Step, Big Payoff In SB 459

SMALL STEP, BIG PAYOFF IN SB 459

Can A Little-Known Law Solve Nevada’s

Opioid Overdose Epidemic?

By John Seeland, JD, MBA, MHS

Opiod

In May 2015, Nevada Governor Brian Sandoval signed into law what was expected to be a pivotal piece of legislation for Nevada’s addiction-recovery community: (SB) 459, otherwise known as the Good Samaritan Drug Overdose Act.

The two-part law granted further access to an overdose antidote, naloxone, while extending legal protection to those who inform the authorities about a suspected drug overdose. Under the new law, law enforcement responding to an overdose distress call cannot criminally penalize “good Samaritans” for any low-level criminal offenses they may discover at the scene. This includes supervision violations, alcohol law violations, simple drug possession, drug paraphernalia possession, and being under the influence. (It should be noted, however, that the law does not protect good Samaritans from more serious offenses, such as selling or trafficking drugs.)

A Law for Saving Lives

Advocates of the law had hoped that immunity from prosecution would encourage drug users or overdose witnesses to seek immediate help for themselves or others rather than wasting crucial minutes or hours fretting over the potential legal consequences.

To date, 35 U.S. states have enacted similar Good Samaritan Overdose Immunity Laws…and many considered Nevada long overdue to initiate its own. Nevada’s drug overdose mortality rate is the fourth highest in the nation, according to a 2013 report by Trust for America’s Health (TFAH). Between 2009 and 2011, the drug poisoning fatality rate in Nevada was 20.7 per 100,000 people. This represents an 80-percent increase from where the death rate stood in 1999, when 11.5 people per 100,000 fatally overdosed.

Naloxone: Effective Overdose Antidote

 Many in the addiction-treatment industry were equally enthused about the law’s expanded access to naloxone, the medication that reverses the effects of an opioid overdose. Naloxone is considered incredibly effective at treating accidental overdoses; so effective, in fact, that some have labeled it a “silver bullet.” It’s also favored for its reputation of being safe and non-habit forming.

“One of the benefits of naloxone is that it has no adverse side affects,” stated Mel Pohl, MD, DFASAM opioid specialist and medical director at Las Vegas Recovery Center (LVRC). “This effectively eliminates the risk of someone causing harm by administering the medication to someone who may not need it to reverse opioid overdose. It’s also fast acting and easy to use. It can be administered through an auto–injector or through a nasal spray—no training is needed. It is truly a life-saving medication.”

The new law allowed physicians to prescribe the overdose antidote to friends and family members of opioid users, a practice that was previously discouraged due to restrictions on third-party prescriptions. Community members who regularly come into contact with opioid abusers, such as first responders (law enforcement and fire fighters), were also granted access.

An Unsung Hero: Where the Law Stands Now

Although it has been 15 months since the law was passed in Nevada, relatively few people have been made aware of its existence, including those with the potential to be most affected, like law enforcement officers and the friends and family members of opioid abusers.

“The intent of the law was to save lives,” says Foundation for Recovery (FFR) Recovery Advocate Heidi Gustafson. “And that hasn’t happened.”

According to Gustafson, an advocate for naloxone, there was no “post-passage plan”.

“The law was passed and then that was it,” she explained in an interview. “There was no education component or marketing plan to accompany it, and that has resulted in a lot of confusion.”

One example Gustafson cited was insurance coverage. “On paper, naloxone is covered by Medicaid, but many pharmacies and consumers aren’t aware of this,” she said.

In other states where similar laws have been enacted, the overdose fatality rate has been successfully reduced. As of 2014, over 150,000 people across the United States have received naloxone kits and training, and over 26,000 overdoses were reversed, according to reports from the Centers for Disease Control and Prevention.

Doctors Hesitant to Prescribe

Another roadblock to the law’s success in Nevada has been doctors’ hesitancy to prescribe naloxone. Though naloxone is not harmful and poses no risk for abuse, it could be rendered ineffectual if it isn’t administered properly. Doctors are concerned that if the drug fails to work in an emergency, they’ll be held liable and could face malpractice lawsuits.

Physicians also worry that recommending an anti-overdose medication will offend their chronic pain patients. Some also believe the law places an unfair burden on doctors to determine which of their chronic patients are at risk of overdose and which aren’t. Pharmacists also face a similar dilemma. While they are sympathetic to the opioid addiction epidemic, as Gustafson explains it, “doctors and pharmacists don’t want to be interventionists.”

The recovery community has struggled to correct the public’s perception that naloxone enables and allows addicts to use more successfully. Mental health experts view addiction as a brain disease and believe people who misuse opioids have little control over their actions. Despite years of published research supporting this claim, however, misinformation and stigma surrounding addiction still persists. “We need to keep people alive long enough for them to seek a new way of life through recovery,” says Gustafson.

Is a Standing Order the Solution?

Gustafson and other local advocates have been rallying to remove individual physicians from the equation entirely, opting instead for a standing order signed by Nevada’s State Health Officer. The standing order would allow pharmacists to distribute naloxone without a prescription and grant anyone the ability to easily access naloxone, in much the same way they do a flu shot. Instructions are included with each naloxone kit that detail how to administer the drug in the event of an emergency and many organizations, such as the Foundation for Recovery, offer trainings for those looking for a more in-depth education.

Most states have enacted statewide standing orders with great success and it is the hope of Gustafson that Nevada will soon follow suit.

The Need for Education

Although a standing order and education for healthcare workers may be a good first step, a community outreach that extends beyond the medical industry is vital if this law is to have a life-saving effect.

“It typically takes two to three hours to die from an overdose,” states Gustafson. “If everyone carried naloxone with them, can you imagine how many deaths we’d be able to prevent?”

Gustafson then recounts a story of a woman she knew who suffered from an opioid addiction. A few months ago, the woman overdosed and rather than calling 911, her friends drove her to a bus stop and abandoned her there. Laying there unconscious, she died of her overdose.

“If they’d have known about the Good Samaritan Drug Overdose Act, maybe they would have driven her to the hospital instead,” said Gustafson with a shake of her head. “And maybe she’d still be alive today.”

As of July 21, 2016, the Nevada Pharmacy Board unanimously adopted naloxone regulations.  These regulation were necessary to implement certain provisions of the states SB 459. These regulations clarify for Nevada pharmacists’ procedures for dispensing naloxone to patients, including those with third-party prescriptions.  Final approval is needed by Legislative Commission. In the meantime, advocates will continue to work toward full implementation of the law.

For those interested in learning how to administer naloxone and prevent an opioid overdose, please contact Foundation for Recovery at 702-257-8199. Foundation for Recovery, located in Southern Nevada, offers a comprehensive one- and two-hour training for groups of 20 or more. 


Las Vegas Recovery Center (LVRC) also offers help to those wishing to seek recovery from an opioid use disorder. With campuses in northwest Las Vegas and Henderson, LVRC is equipped to help chronic pain and addiction sufferers across the Las Vegas Valley. Visit http://lasvegasrecovery.com/ or call 702-515-1373 to learn more. 

 

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Health & Fitness

Health Fitness

Health & Fitness

Las Vegas’ New Luxury Market

By  J. Malcolm DeVoy

According to the Centers for Disease Control (CDC), 34.9 percent of adults in the United States are obese. Simultaneously, a 2015 report by Stephens, a financial services firm, about the rise of high-end, boutique health clubs such as Pure Barre and Orangetheory Fitness—both of which have presences in Las Vegas—estimates the size of the domestic health club market at $22.4 billion. These new entries into the Las Vegas market are competing for customers with the long-standing Las Vegas Athletic Club, with its numerous locations throughout the valley, and high-end players Lifetime Athletic and David Barton Gym.

On their face, the CDC statistics and the Stephens report seem in conflict with one another. A national obesity rate of nearly 35 percent—which does not even include those merely classified as “overweight”—initially seems at odds with a robust and growing fitness sector. Spending time in and around the fitness industry, though, reveals that it is not immune from the broader socioeconomic trends facing the United States.

As with economic opportunity, health and fitness within the United States appears to be amid a great bifurcation. Part of a common narrative dating back to the Occupy Wall Street movement, a widening chasm of fitness is emerging between the haves and the have-nots.

Those who have the ability to prioritize their health, or who allocate their assets to make it a priority, have created a health and fitness market that operates much like any other luxury market. Gyms, personal trainers, supplement companies, and even some doctors, are no longer merely providing a fungible service, but are giving customers an experience. Consumers are not merely purchasing a gym membership or a product, but an entire lifestyle.

The Rise of The High-End Gym

 Historically, physical fitness was a requirement of the intelligentsia and rulers of any society, rather than just for the warrior class. As Socrates said: “No man has the right to be an amateur in the matter of physical training. It is a shame for a man to grow old without seeing the beauty and strength of which his body is capable.”  This wisdom echoes through the ages: Renowned Japanese author and nationalist Yukio Mishima wrote passionately about the impact weight training had on his life in his autobiographical essay, Sun and Steel. And Henry Rollins, singer for the notorious punk band Black Flag, echoed Mishima in his own revealing story of how lifting weights transformed his life, “Iron and the Soul,” in Details magazine in 1994.

While the explosion of high-end gyms over the last 16 years has been unique, professionals have long been concerned about health, vitality, and appearances. Dr. Gordon Patzer’s 2008 book, Looks: Why They Matter More Than You Ever Imagined, summarizes extant research about the tremendous importance physical appearances have in the workplace, including for legal  professionals. An entire chapter of Patzer’s book, titled “Rendering Judgment: How Looks Affect Courtroom Results,” is dedicated to the importance of the attractiveness of attorneys, parties, and even jurors, on the judicial process. It is little wonder, then, why service professionals including doctors, lawyers, salespeople, and others sought out facilities that would suit their needs.

As fitness research became more widely available on the Internet, fitness myths of the 1980s and 1990s—epitomized by “low fat” foods and Olestra—yielded to a collective realization that there was no substitute for lifting weights. The fitness industry rose to meet these demands in numerous forms, from exclusive weight rooms to organized classes. The result is a mix of strategies that shows no signs of stopping.

Among traditional gyms that have sought a higher image, Las Vegas’ City Athletic Club has been a locally owned and operated participant since 2011. Its owner, Jea Jung, the son of a world-renowned Tae Kwon Do instructor and himself a former bodybuilder, brought his lifetime of experience in the fitness industry to open his gym in Las Vegas. (In addition to owning City Athletic Club, Jung’s commitment to fitness also led him to create J-Bells, an alternative to dumbbells for free weight use.)

Jung believes that Las Vegas is something of an anomaly to the national fitness market. As a bodybuilder with a background in the fitness industry, Jung has been able to operate a premium gym in Las Vegas in a manner that would be impossible in other cities. His years in the fitness industry gave him a level-eyed realism in confronting this market: Rather than operating a volume-oriented, 10-dollar-per-month gym, he set his sights at the top of the market while being realistic about what doing so requires. In an era where some gyms seek to lower prices to compete with inexpensive gyms, Jung searches for ways to take his facility to the next level, without the capital backing of a national brand such as Lifetime Athletic or Equinox.

In addition to people who can freely spend the funds needed for a gym membership, Jung is acquainted with a different consumer base: those who will spend their last dollar for fitness.  While the affluent may focus on experience, those who make serious sacrifices for their fitness also want the best return on their investment. In Jung’s view, both priorities contribute to demand outstripping the supply of quality fitness facilities, allowing the prices to increase upward. As in other fields including law, and as documented in Robert Cialdini’s book Influence: The Psychology of Persuasion, high prices are a boon to marketing an in-demand service. For gyms, high rates may feed into another source of demand for their services.

Jung sees a pervasive effect of social media, particularly Instagram, in creating the demand for high-end gyms. Bragging rights, such as the ability to claim membership at a certain gym, checking in to it on Facebook, or posting photos taken there on Instagram, become more important than the gym itself. Like other luxury products, the gym experience becomes a source of ego fulfillment and validation; working out is secondary to the esteem and self-worth that members obtain from informing others of where they are, and where they belong. While the laws of supply and demand inform price, the culture of vanity—accelerated by social media’s ubiquity—plays an outsize role in driving demand.

Departing from the traditional gym setting, other forms of fitness training have gained popularity in the last decade. One of the most prominent examples of alternative fitness (and most explosively popular) is CrossFit—the trade name for a series of demanding group workouts that include free weights, bodyweight, and cardiovascular elements that change daily. According to Forbes, there were more than 11,000 officially licensed CrossFit gyms in 2015. In 2005, there were only 13.

Some gyms, including City Athletic Club, have CrossFit components to their facilities. CrossFit gyms more commonly stand alone due to the equipment and space needed, which differs from typical gyms and often includes gymnastic rings and open areas to perform lunges, farmers walks, and the dreaded burpees. The official CrossFit website indicates that there are 37 licensed CrossFit gyms in the Las Vegas and Henderson area as of July 2016.

The CrossFit experience is premium, and carries a premium price tag. At Freestyle CrossFit in Downtown Las Vegas, regular monthly memberships start at $120, and can go up to $160.  In Southwest Las Vegas, CrossFit Mountains Edge has similar pricing, running from $135 to $170 per month.

While CrossFit has been controversial in some circles, whether for reasons of cost or the debilitating injuries it can inflict on its adherents, others see CrossFit’s aggressive pricing as a desirable feature. In a 2015 entry on Philly Law Blog, Philadelphia attorney A. Jordan Rushie took issue with the view that CrossFit is too expensive. “[Y]ou’re hanging around other people who make enough money to spend it on a gym that costs $150 per month. Not $10 per month.  Who do you think will make better clients? Who do you think will have better referrals?”  Beyond camaraderie, the networking opportunities provided by treating fitness as a luxury pay for themselves. The costs of fitness do not end in the gym, though; instead, they merely begin there.

 Supplementing the Labor

It is increasingly rare to find anyone whose fitness regimen begins and ends at the gym. Reliable numbers on what percentage of gym-goers use supplements, ranging from vitamins and minerals to protein shakes to pre- and post-workout products, are hard to find. Still, there is no absence of evidence of the tandem rise of gyms and the supplement industry. Many nutrition and supplement stores in Las Vegas, such as Nutrition Rush, are located nearby if not adjacent to gyms. Lifetime Athletic and City Athletic Club both have supplement stores and health bars within the gym itself. Even without direct, causal data, the supplement industry’s size and growth closely tracks that of gyms and health clubs in the recent past.

Because the supplement industry largely is self-regulated—the FDA’s hands-off approach to nutritional supplements standing in stark contrast to its treatment of prescription drugs—there is little publicly available or verifiable information. On the low end, TABS Group estimated that the domestic supplement industry was worth $11.8 billion in 2015.  Nutrition Business Journal hotly disputed the TABS Group valuation and estimated the United States’ industry’s size at $36.7 billion.

Consulting firm McKinsey & Company estimated in a 2013 report the global supplement market was worth $82 billion.  The McKinsey report further indicated that sales increased by $6 billion in the United States alone from 2007-2012. Known transactions support an 11-figure valuation for the domestic supplement industry. In 2008, international nutritional ingredients group Glanbia Nutritionals acquired Optimum Nutrition, a trusted supplier of protein products, for $315 million.  Glanbia also owns one of Optimum’s erstwhile competitors, Bio-Engineered Supplements and Nutrition, also known as BSN.

The Internet has been a leading force in both selling and disseminating information about supplements. As noted in the McKinsey report and Nutrition Business Journal’s valuation of the supplement industry, Internet sales of supplements have growth significantly over the past 10 years and contribute a significant chunk of the industry’s size. From established retailers such as Amazon, to start-up sellers such as Vitacost, iHerb, and Lockout Supplements, numerous channels are available for purchasing supplements discreetly.

Knowing what supplements are needed is a precursor to buying them, even over the Internet.  In recent years, websites and e-books have risen to fill this gap. Established in 2011, Examine.com has grown into an easy-to-navigate and stunningly deep source of supplement information.  Containing more than 50,000 citations to scientific research, Examine evaluates the claims associated with various supplements, vitamins and minerals.  Prior to buying, users can assess things such as whether magnesium actually increases aerobic exercise performance (it does), or if ashwagandha reduces anxiety and cortisol, the stress hormone (it does). Despite the website’s enormity, it is far from the only source of information about supplementation.

P.D. Mangan overcame chronic fatigue by teaching himself about nutrition and supplementation.  Today, at age 61, he regularly lifts weights, has a formidable physique, and maintains the website Rogue Health and Fitness where he posts regular articles about his health research. He also has published books including Stop the Clock, about anti-aging techniques; Best Supplements for Men’s Strength, Health, and Virility; and most recently, Dumping Iron—warning about the underreported cognitive and physical problems caused by excessive iron in the body.

As a result of his books and online writing, men and women reach out to Mangan to further discuss their conditions.  In an e-mail, Mangan estimated that approximately 90 percent of the people who contact him were male with “decent” middle- to upper-middle class income.  Observing that people interested in health have above-average income, Mangan’s readers are also brighter and more intellectually curious than average in order to work through his scientific books and their technical language.

While Jea Jung anticipates that people who use supplements spend approximately $200 per months on them, Mangan’s number is more conservative, at $30 to $50 dollars per month. Jay Campbell, a fitness athlete and former Las Vegas resident, estimates that affluent supplement buyers may spend up to $300.  Personally, Campbell focuses on getting the highest return on what he ingests, and his monthly supplement spend comes in at under $150.  When it comes to supplements, Mangan’s belief is that the more expensive a supplement is, the less necessary it is.  For weightlifters, Mangan expects the staples of protein powder, creatine, zinc and magnesium to be affordable.  As Mangan noted, though, name-brand products are more expensive, likely contributing to the discrepancy between his monthly budget and Jung’s.

Mangan sees huge potential growth in the supplement industry as more anti-aging research is completed and publicized. With an undertone of optimism, Mangan notes that men want good physiques, and are coming to understand that obtaining one is within their reach. While he believes that the past few decades of health advice have been nearly unfounded, including low-fat and high-carb diets, and vegetarianism, Mangan is confident that people are finally seeing that supplements work and are worth the expense.

Dr. Brett Osborn affirms much of this information in his 2014 book Get Serious. Osborn, a Florida-based neurosurgeon, provides guidance about weight lifting, diet, and supplementation in Get Serious.  Chapter 8 of the book is dedicated entirely to supplementation. While Osborn makes it clear that his writings are not medical advice, and readers should confer with a doctor before taking any supplements, he provides his opinion about the most effective supplements on the market.

Appearing shirtless on the front cover of Get Serious, Osborn’s appearance is a testament to his recommendations. A number of entries in Osborn’s book and Mangan’s recommended supplement list overlap, including vitamin D3, magnesium, and omega-3 fatty acids.  Supplements alone cannot build a physique, but they can make it easier to obtain. Moreover, they can improve mood, cognition, and stamina, which even an improved appearance is not guaranteed to do.

In addition to complementing a rigorous workout routine, dietary supplements also undo the effects of the modern diet and pharmaceutical industry. Both Jung and Osborn lay significant blame for the poor state of national health at the feet of the pharmaceutical industry. As Osborn wrote in Get Serious, “[C]ompanies like Pfizer and Merck thrive on the treatment of illness.  There is money in disease, not health.  Due to this, supplement manufacturers have been vilified and touted as the mortal enemy threatening to rob the gravy train. And that’s exactly what it is.”

 Even as the supplement industry gains credibility based on published research, supplements alone may not be enough to overcome the effects of pharmacology, whether directly ingested or absorbed through the environment. Academic research has documented the adverse effects of residual hormone mimickers from birth control, as well as diabetes medication, on wildlife in the Great Lakes. As a result, it may be impossible for some people to reach optimal health only through supplementation. Additional measures may be needed to obtain an ideal hormonal balance, and today they are more widely available than ever before.

The Hormone Replacement Therapy Explosion

Juan Ponce de León spent the early 1500s, right up until his death, searching pre-colonial Florida for the fountain of youth. Taking ships and many men with him, he scoured the undeveloped new world in search of a cure for aging. Today, we know that this remedy can be found inside of a hypodermic needle. What’s more, it is increasingly available to those who qualify.  Like many leading-edge fitness and health trends, though, hormone replacement therapy is not cheap, and requires a patient’s dedication to such a regimen.

For years, testosterone replacement therapy advertisements have filled Las Vegas’ billboards and airwaves. Speaking mostly in euphemism, they identify the key symptoms of low testosterone: lack of energy, virility, and stamina. These concerns understate the full range of functions affected by testosterone, though: Proper testosterone levels improve mental clarity and sharpness, fat loss, confidence, and even mood.

Jay Campbell’s passion for health and fitness led him to literally write the book on testosterone replacement therapy in his early 40s. In 2015, Campbell released The Definitive Testosterone Replacement Therapy Manual. Today it is the No. 1 book about testosterone replacement therapy of all time. In his book, Campbell covers the extreme basics of testosterone, such as what it is and its naturally occurring benefits, to debunking junk studies on the risks of testosterone, the ethical objections to testosterone replacement therapy, and the reality of andropause—a “male menopause” where the body’s testosterone production drops off precipitously. Campbell goes on to discuss the forms of available testosterone therapy, from patches and creams to injectables, and possible regimens for doctors to prescribe.

For an optimum protocol, Campbell observes that injections of testosterone propionate every other day, or the longer-acting testosterone cypionate every three to seven days, yield the best results for most users. He is also forthright about the additional care any testosterone replacement therapy will require. While testosterone replacement therapy is not a reliable form of male birth control, it can negatively affect users’ fertility. As a result, some men using testosterone therapy may wish to use HCG to avoid fertility complications and as thus see all of their sex hormone levels skyrocket, including estradiol, a form of estrogen. Estradiol inhibitors such as anastrozole, commonly sold under the name Arimidex and used to treat some forms of breast cancer, then enter the equation to ensure the proper ratio of testosterone to estrogen. These considerations come before accounting for how testosterone may increase users’ hematocrit, a measure of the blood’s thickness, and require monthly blood donations to maintain it at a healthy level.

Striking this balance takes considerable investments, time and money. Patience, comfort with needles, regular blood work, and a prescribing physician who is well-versed in this increasingly popular area of medicine are all necessities. As one would expect, demand for medical professionals with deep, substantive knowledge in this area far outstrips supply, and their services are priced accordingly.

Deeply familiar with the national testosterone replacement therapy market, Campbell estimates that the cost of doing a regimen the right way costs $250 to nearly $400 per month. In his view, the benefits are so profound that the cost is more than justified. Not merely an expense, testosterone replacement therapy is an investment in one’s future. As testosterone levels fall, those who maintain normal levels will prosper over those who succumb to the decline of aging under the pressures of the standard American diet and pharmaceutical industry.

In The Definitive Testosterone Replacement Therapy Manual, and later in an e-mail, Campbell expressed his belief that the world was in the throes of a testosterone-deficiency crisis.  Even mainstream medicine has recognized a generational decline in testosterone within the United States. A 2007 study published in the Journal of Clinical Endocrinology and Metabolism observed an age-independent decline in total testosterone from 1987 through 2004 among 1,532 men. In short, testosterone levels were not falling just because the test subjects aged; for reasons unknown to the researchers, median testosterone levels declined almost 20 percent in fewer than 20 years among the randomly selected test subjects.

In Campbell’s view, both men and physicians are unaware of these changes and their implications. Because of the benefits normal testosterone levels provide, Campbell is enthusiastic about informing men about the benefits of testosterone replacement therapy, and helping them overcome their self-doubt and moral quandaries regarding the treatment. Even with the costs, initial blood work, and lifetime commitment that a successful testosterone replacement regimen requires, Campbell strongly believes it is most men’s best bet for achieving their potential.

While men have received much of the attention of hormone replacement therapy, there is a burgeoning market for women’s hormone replacement therapy. Campbell’s wife, Monica Diaz, is a Southern California real estate agent and also a fitness advocate. Beginning in early 2016, Diaz began turning her attention to the market for female hormone replacement therapy. In addition to creating an advice group dedicated to the topic, she presented an hour-long group discussion on YouTube and her blog with Campbell, Fabulously Fit Over 40, going into detail about the tests needed for female hormone therapy, what kinds of hormones are recommended, and who should consider if it is right for them.

In Campbell’s observations, the potential and actual markets for women’s hormone replacement therapy far surpass those for men. One of the reasons for this observation is that women can begin some form of hormone replacement therapy around age 30, while men normally must wait longer toward their 40s for their testosterone levels to drop enough to warrant medical intervention. Another reason for the women’s market size is the fact that insurance companies, better versed in the realities of menopause and other aging issues facing women, will pay for many forms of women’s hormone replacement therapy. In contrast, testosterone replacement therapy normally is an all-cash affair. Even for women who pay cash for their hormone replacement therapy, Campbell’s work with Diaz reveals that those seeking this therapy are what Campbell describes as “women of means,” generally earning $75,000 per year or more.

For both sexes, there is a final option to wind back the clock of time: human growth hormone, or HGH. While other hormone-replacement regimens can be done for a few hundred dollars per month, HGH—the pinnacle of hormone replacement—is markedly more expensive, whether with a prescription or through the black market. Yet, its effects over a range of uses, from cosmetic needs to injury recovery, make it very attractive.

HGH’s potency as a hormone-replacement therapy has earned it a lucrative position in the black market. Often prescribed to HIV patients to prevent “wasting,” pharmaceutical-grade human growth hormone can be obtained on the black market—a trend that ESPN first observed in December 2004, noted in the article “Fountain of Youth in a Bottle.” Despite significant crackdowns on black-market distribution of HGH and other HIV/AIDS medications, as reported by Community Access National Network in March 2014, the practice continues today.

By 2012, HGH had escaped from the fitness underground. In an article titled “Hollywood’s Vial Bodies,” Vanity Fair detailed the pervasive use of HGH among Hollywood celebrities and studio executives—largely under condition of anonymity—to recapture younger looks and lost energy.  HGH was confirmed to not just be for bodybuilders, but for women in the Hollywood social scene as well who cited improvements to their skin and hair as treatment benefits. These benefits came at a price, as a year of HGH treatment cost more than $10,000.

Despite its high cost, the present day is a relative golden age for HGH. Prior to the FDA’s approval of recombinant, or synthetic, HGH in 1985, the hormone had to be removed from cadavers in minute quantities; obtaining usable quantities of the hormone was equally costly and disturbing. With its new, relative availability, the market for HGH has grown, with healthcare providers acting to feed demand.

One of the foremost providers of hormone therapy in Las Vegas is Cenegenics. For years, the company has been promoted by the distinctive image of Dr. Life, a physician in his 60s who had the physique of an amateur bodybuilder. On its website, Cenegenics offers men monthly shipments of prescribed hormones and supplements. While Cenegenics does not readily disclose its pricing schedule, other online reviews of the company indicate that its hormone replacement therapy and supplement regimen—including HGH, if prescribed—costs hundreds and potentially even thousands of dollars each month.

At a price tag in excess of $1,000 to $2,000, each month, HGH is unequivocally a luxury good.  Components of the fitness market may perform like luxury products because of the resources devotees are willing to commit to their passion. The same is true for other products that attract their own fanatics, as BMW devotees pay tens of thousands of dollars for their cars, and modular synthesizer collectors pay thousands of dollars a year for new modules. For an elective, recurring monthly payment of $1,000 to $2,000 per month, there is little question as to HGH’s position as a luxury good…however it is obtained.

Future Trends

Professionals, and particularly lawyers, are increasingly aware of the mind-body connection.  Kenneth White, partner at the Los Angeles-based Brown White & Osborn LLP, wrote about how he overcame his own skepticism of a body-focused approach to mood after reading Why Zebras Don’t Get Ulcers in a May, 2015 post on the blog Popehat. “Before I had been very skeptical of any body-focus as sort of crystal-thumping woo. But not surprisingly, there’s actual science to the concept that our bodies impact our minds.” For lawyers, a group that suffers from mental health and addiction issues at rates that far outstrip the general public, the importance of understanding the mind-body connection is even greater. Professionals have the benefit of affording the means to experiment with and improve their health.

As the science about health and longevity becomes more widely publicized and accepted, the mass affluent will continue to demand an experience from fitness and supplement companies that is congruent with the rest of their lives. Hormone replacement therapy, which Jay Campbell’s book notes is a deeply private and anxiety-inducing issue for men, seems like a natural complement to the rise of “concierge medicine,” essentially a re-branding of the old house call.  As seen in the growth of these industries, demand has increased with awareness, and has led to innovations in delivery.

There are still many things beyond the scope of this article that support its proposition that health is now a luxury product. The increased demand for organic food has led to the growth of specialty grocers like Whole Foods, and has made traditional chains increase their organic produce offerings. There are also the subcultures of juicing and blending, which reduce fruits and vegetables to liquid form, and the unlikely schism between both groups’ adherents. Whether in pursuit of youth or the strength needed to be a more formidable adversary—fulfilling the age-old edict that the weak should fear the strong—the demand for high-end products and services in the fitness and health industry will continue its stratification as a luxury market.


  1. Malcolm (“Jay”) DeVoy is the owner of DeVoy Law P.C. DeVoy focuses on providing representation in commercial disputes, serious personal matters, and advising medical professionals and practices about issues including HIPAA, Stark Law, and the Anti-Kickback Statute.

 

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Baby Boomers & Plastic Surgery

Surgery

Baby Boomers & Plastic Surgery

–By Julio L. Garcia, MD FACS

People desire cosmetic procedures for a variety of reasons. For some, it is because they are looking to enhance their appearance before re-entering the dating scene; some want to look on the outside as they feel on the inside; and some just want to look better in their clothing. It is a sign that after years of spending time on work and family, they want to spend a little time and invest in themselves.

But a result of recent financially trying times, there has been a trend in baby-boomers wanting to stay competitive in the job market. In years gone by, many would’ve waited to have plastic surgery to enhance their appearance once they were retired; but now, with first impressions and the competitive nature of the job market being what they are, people are seeking cosmetic enhancements much earlier as a way to prolong their working years.

According the American Society of Plastic Surgeons, people over 55 accounted for over 25 percent of all cosmetic procedures performed in the United States in 2013. But there can be hurdles for the mature patient undergoing a cosmetic surgery procedure. Here are a few things to keep in mind.

The Reality Of Recovery

Some patients are concerned about bouncing back and returning to work in a reasonable amount of time, and that is a valid concern: Healing and recovery can in fact take longer in mature patients. But in most cases, if they follow instructions and discuss with their surgeon what will be expected of them, returning to employment in an appropriate amount of time can be planned for.

It’s The Money, Honey

A hurdle for some people on a fixed income is that their desired elective procedure will eat into their nest egg. This is important when deciding the best plan of action to achieve one’s desired cosmetic result. Although non-invasive options can appear less expensive, in the long run (and if enough of them are needed), their cost can add up to almost the cost of a surgical procedure.

It must be understood that both surgical and non-surgical options are good, and that fillers and non-invasive procedures do not replace surgery (and, vice versa). For that reason, you should discuss your desires with your plastic surgeon as well as your short- and long-term goals. Some patients find that a surgical procedure is the most economical in the long run, with only small amounts of fillers to maintain the appearance as they age being the best option. But a frank discussion with the surgeon is required for plans and decisions to be made in the best interest of your wallet, and your body.

More Than Just A Pretty Face

Although most people think that the mature patients seek only improvements on their faces, body work on people over 55 can constitute more than a third of all body work a plastic surgeon does in a year. At times, the type of body work that should be done on a mature person is slightly less aggressive in order to avoid the prolonged recovery, but that is something that can be customized to fit the individual and their ability to take time off of work. As with all procedures, having an open discussion with your surgeon should assuage concerns or fears, but also set you up for ultimate success.

Protect Your Health, Protect Yourself

With all patients—especially those in the baby-boomer age group—pre-existing medical issues  should be addressed and cleared by a primary care physician before any procedure. Additionally, not only is it important to evaluate a patient’s physical health, but their emotional health is also a prime factor in proper treatment. In all patients, but especially in mature individuals, an open discussion about motivations and expectations about the procedure must be discussed. A procedure’s result (and how dramatic a change can be) is, at times, more underwhelming in an older individual. A surgeon can apprise a patient of limitations and perhaps normalize expectations…but the patient needs to be frank with the surgeon.

Plastic surgery, in short, is not for everyone…but if you are wondering if it is an option that is safe, affordable, and will give you, the patient, the improvements you seek, make a confidential consultation to explore your options. A board-certified plastic surgeon, such as myself, would look forward to answering your questions in an effort to give you the best experience possible.


Julio L Garcia, MD FACS, is the founder of the Regenerative Medicine Institute of Nevada, which is dedicated to helping patients with adipose-derived cell therapies for the treatment of acute and chronic medical issues. For more information about Dr. Garcia, please visit his websites at www.lvcosmeticsurgery.com and www.rminlasvegas.com, or contact his office by calling 1-888-FACES-89 or (702) 870-0058.