By Mark Waite
Fifth District Judge Kimberly Wanker Tuesday denied a motion for a change of venue by Utilities Inc. of Central Nevada to move the pending Blagg Road case to Clark County.
UICN argued that pre-trial publicity in the Pahrump Valley Times, the fact there is a similar case over Blagg Road taking place in Clark County and that many of the witnesses and attorneys live either in Las Vegas or Reno, were grounds for moving the trial.
“I venture to say you probably can’t mention Blagg Road to anyone in Pahrump without them cringing about the damage that occurred and the closure for nearly two years before the repairs,” UICN attorney Laura Granier said.
Tom Beko, an attorney for the state insurance pool representing Nye County, said Supreme Court rulings made it clear a motion for a change in venue shouldn’t be granted until there is at least an attempt to seat a jury in Pahrump. In his opposition pleadings, Beko pointed to two high profile cases where a change of venue was denied: the case against Enron Chief Executive Officer Jeffrey Skilling in Houston and the hepatitis case in Las Vegas where 60,000 patients of medical centers received letters from the Southern Nevada Health District about possible exposure to hepatitis B, C or HIV.
Granier argued those were cases in large cities with millions of potential jurors; they also didn’t involve a companion case.
UICN filed a suit in August 2011 in Clark County initially against Spirit Underground, the company that installed the sewer line up Blagg Road that collapsed after heavy rains in December 2010. Their suit was amended in August 2012 to include a lot of the defendants in the Nye County case filed last December, except UICN added Fidelity and Insurance Company of Maryland, the company that issued the performance bond and Zurich American Insurance Company, parent company of Fidelity and Insurance Company.
Beko charged UICN was shopping for the best forum and trying to consolidate two cases he said were similar but also very different.
Wanker noted the request for change of venue was filed before the Fifth District Court even received a motion for a jury trial. She suggested if the trial had to be moved it could be heard in Tonopah.
“The publications I would submit to the court differ dramatically from the type of pre-trial publicity that courts have found create such an overwhelming taint to the entire panel of prospective jurors such that a change of venue at this stage would be appropriate. In this case, there’s no confession of responsibility and that seems to be one of the things the Supreme Court focused on in looking at pre-trial publicity, whether the publicity is such that jurors cannot get out of their mind someone’s responsibility,” Beko argued.
He said UICN was given an opportunity to respond in seven of the newspaper articles submitted.
“There’s an equal number of criticisms of county government and county operations as there is of anybody in the case,” Beko said.
He said the court could, through the process of voir dire — in which jurors are questioned by attorneys or the judge — be asked if jurors have read any of the newspaper reports and which side they would favor. Wanker said she asked most of the questions under voir dire in the seating of a jury panel for a case three weeks ago.
“I will thoroughly stress that it has to be a fair and impartial jury and ask a lot of questions. In this case, jury questionnaires may be appropriate. If we get to the point that we can’t seat a fair and impartial jury here in Pahrump, I think we need to look at staying in Nye County and see if we can seat a fair and impartial jury in Tonopah,” Wanker said.
“I’m sure none of those folks have ever heard of Blagg Road,” the judge said. “I don’t live in that area of Blagg Road. It’s not a major thoroughfare to get from one side of Pahrump to the other side of Pahrump, and quite frankly I haven’t read any of the articles. So I was very unfamiliar. I knew Blagg Road was closed and that was probably the extent of it.”
“Pahrump is a smaller community, but that doesn’t change the fact that we’re really only trying to find eight people who are fair and impartial and the Supreme Court said you do not have to find people who are ignorant of the facts, you have to find people who can decide this case depending on the law and the facts,” Beko said. “What we’re talking about is a washout in a road. Certainly, it may be significant to people who are in that area. But also if you read UICN’s briefs, you would be left with the impression this is a street everyone in Pahrump must cross on a daily basis.”
Granier said the Blagg Road case is significant to every taxpayer in Nye County and ratepayers of her company. She said Nye County hired their own experts, Pezonella Associates of Reno — to which they paid $125,000 — to uncover the same conclusions their experts discovered.
“The district attorney himself was quoted in the media that if there can’t be a jury here because you can’t seat an impartial jury, I’m going to blame it all on the Pahrump Valley Times,” she said.
UICN cited the case National Collegiate Athletic Association v. Tarkanian in which the court had to rely on five factors for a change of venue: the nature and extent of pretrial publicity; the size of the community; the nature and gravity of the lawsuit; the status of the plaintiff and defendant in the community; and the existence of political overtures.
The UICN motion states that newspaper articles quoted county officials stating: “Citizens of Nye County will want to ensure that other entities, including UICN, pay the bill for the damage to the road so that the county and taxpayers do not.”
Granier’s motion argues doubts about community prejudice should be resolved in favor of the party filing the motion for change of venue. It says while jurors may be well intentioned, unconscious bias may exist.
“The interest of Nye County residents in the subject matter of this litigation is sufficiently widespread to make it unlikely UICN can have a fair trial in Nye County,” the UICN motion states. “Additional bias may exist given significant public opposition to the construction of the detention facility in the first place.”
“Statements and conclusions publicized repeatedly in Nye County erroneously characterize UICN as being at fault for the trench failures,” the UICN motion states.
Nye County’s motion for opposition referred to the notorious docket congestion in Clark County.
“The other lawsuit that occurred in Clark County was filed in August 2011, 16 months had passed before we filed our suit and quite frankly there was a long delay in us filing our suit because we believed the resolution of that suit would likely resolve our suit, and there were concerns with the passage of 16 months when virtually nothing was happening in that case,” Beko argued before the judge. “My understanding is as of today’s date, that case has now been before five separate judges in Clark County, only within the last couple of weeks has the first deposition been taken.”
“In this case, Nye County’s position is very simple: you chose and wanted the opportunity to use our right-of-way to install a sewer line. We allowed you to do that under certain conditions that UICN and others make promises that the work that would be performed would be in accordance with certain standards. That obviously has not occurred,” he said. “We don’t have to prove why it happened. That’s what the lawsuit in Las Vegas has been doing for the last 18 months.”
Beko said the primary reason UICN filed its case in August 2011 was because they were contractually obligated to reimburse Nye County for the losses.
Beko said there’s a July trial date set for the UICN suit in Clark County, it would be unfair for the county attorneys to bring themselves up to date on 125,000 documents filed in that case. Granier pointed out the county contradiction, complaining about the delays in that case and then complaining about having to file motions in time.
“If the case is transferred to Clark County, the judge is going to give Nye County due process,” Granier said.
Unfortunately, Wanker said with her busy court calendar, where criminal cases are a priority, it may be until mid to late 2014, even 2015, before a trial is scheduled in Fifth District Court.