Tuesday, November 23, 2004
Copyright © Las Vegas Review-Journal

Court overturns jury award to parents of injured son

In January 2002, Wendy and Phil Nault react to a $3.3 million jury award in the malpractice case they brought against their son's former attorneys. The Nevada Supreme Court overturned that verdict Monday. Photo by Clint Karlsen/REVIEW-JOURNAL FILE PHOTO.

CARSON CITY -- The Nevada Supreme Court on Monday overturned the $3.3 million jury award given a Las Vegas couple who care for a son left in a vegetative state by a botched hernia operation.

"My client had tears in her eyes," lawyer Gary Logan said after informing Wendy Nault, mother of Jason Nault, of the court's decision.

Jason Nault was 21 when he suffered catastrophic injuries during an outpatient hernia operation on June 6, 1994.

Attorneys Randall Mainor and Richard Harris filed a lawsuit on behalf of Jason Nault and his wife, Louise, before settling the case in March 1996 for $17 million.

Jason Nault's parents, Wendy and Phil, sued Mainor and Harris on their son's behalf after learning that he had received only 14 percent of the $17 million settlement.

The couple said the attorneys had a conflict of interest because they represented both Jason Nault and his wife, who received 38 percent of the settlement.

At the request of Louise Nault, Jason Nault was returned to his parents' home in May 1997. The parents said Louise Nault stopped visiting her husband in November 2000, and they subsequently obtained a divorce on their son's behalf.

In January 2002, a Clark County jury found Mainor and Harris committed malpractice while handling the personal injury case of Jason Nault.

"We don't think they did it on purpose," jury foreman Richard Montgomery said in an interview after the verdict. "They just made some mistakes."

Montgomery said jurors concluded the lawyers had a conflict of interest in representing both Jason Nault and his wife.

"That was the main thing that did it, I think," the jury foreman said. "We could never get past that."

The Supreme Court on Monday overturned that jury verdict in a 5-0 ruling that did not reveal which justice wrote the opinion.

Justices Mark Gibbons, Michael Douglas and William Maupin did not participate in the ruling. District Judge Janet J. Berry of Washoe County sat in place of Maupin.

In the opinion, the justices noted that District Judge Lee Gates approved the $17 million settlement in 1996.

The lawyers received 40 percent of the settlement, and Louise Nault got 38 percent. Jason Nault received 14 percent, and 8 percent went for bills and court costs.

In approving that settlement, Gates said he found it fair and reasonable. The justices said the Naults erred by not attempting to set aside this settlement approval order.

"The order was voidable, but not void," they wrote.

In their ruling, justices also said the Naults approved of the total amount of the $17 million settlement but objected to the manner of its division.

"Permitting the Naults to pursue an independent action as they have done would be unfair for two reasons. First, the Naults are accepting a portion of the settlement approval that benefits them but are bringing suit to upset the portion they now oppose without attempting to modify the settlement compromise. Second, the distribution of a large amount of the proceeds to Louise is left standing without any attempt to recoup the allegedly excessive amount paid to her. The Naults actually compounded this situation by giving a full release to Louise for what appears to be very little compensation. The net result is that the Naults are suing their attorneys for a portion of the settlement previously approved without taking any action to revise the settlement approval and recoup the amount they claim due from Louise, the party who was allegedly unjustly enriched. We do not believe that this is reasonable or equitable," the decision states.

Louise Nault was originally named as a defendant in the lawsuit filed by Wendy and Phil Nault, but she reached a confidential settlement with the couple before trial.

Logan said he sees little recourse for his clients.

"I obviously I don't agree with the decision. At this point, there doesn't seem anything I can do about it," he said.

In their opinion, the justices said Gates was given sufficient information to determine that Jason Nault's medical needs always would be met under the settlement.

Under the settlement, he was to receive $32,000 a month for permanent medical care. That rate increases 2 percent a year.

But Logan said if medical costs continue to rise, there may not be enough money for his care. He noted the Naults are nearing retirement age and will not always be able to care for their son.

Mainor disputed Logan's contention. He said experts estimated initially that it would take $7,000 a month to care for Jason, but he secured nearly five times that amount just to be sure.

"The money won't last if the family spends it," Mainor said. "There is more than a sufficient amount to take care of him. I have the highest regard for Jason. Money does strange things to people."

He said the Naults should have sued their son's ex-wife, not him and Harris if they were concerned about the division of funds.

Mainor said medical experts thought Jason would live only about a year. He said Louise Nault was given 38 percent of the settlement in order to reduce potential tax liabilities when he died.

In a hearing before the Supreme Court earlier this year, Logan contended Mainor and Harris lied to Gates in 1996 about the division of the $17 million settlement.

But the court ruled Monday that Gates was sufficiently informed about the settlement, although he was not told Louise would receive a lump sum payment and an annuity.

Mainor said he was offended by Logan's comments and felt vindicated by the court's decision.

"My integrity and reputation is worth more than anything," he added. "I did everything I could to help this family. I don't gloat about it. It is another bad thing that should not have happened. The case should never have been filed against us."