## Facts

- Christopher O. Shelksohn brought his wife, Johnna Pullen–Shelksohn, to a Las Vegas hospital while she was in labor with their first child.
- Johnna requested epidural anesthesia for pain relief.
- Nurse Nannette Deakin Spector was going off duty, and Nurse Renee Clark was coming on duty around the time the epidural was administered.
- Dr. Yun Szu Yeh, an anesthesiologist, responded to the request and attempted epidural placement multiple times before succeeding.
- As the epidural medication began entering Johnna’s body, she immediately suffered a seizure.
- Doctors delivered the baby by emergency cesarean section. Johnna remained comatose for seven days and died.
- Christopher (individually, as special administrator of Johnna’s estate, and as guardian ad litem for the child) and Johnna’s mother, Linda Neilson, sued Dr. Yeh, asserting medical negligence and wrongful death, and also asserted negligent infliction of emotional distress (NIED) claims.
- A main factual dispute was whether Dr. Yeh administered a test dose and waited to observe any adverse reaction before giving the full dose (Dr. Yeh’s account), or instead administered the medication too quickly (plaintiffs’ theory).
- At trial, Nurse Clark testified that Johnna went into convulsions within about ten seconds of Dr. Yeh inserting the epidural needle, and that physicians normally wait at least one to two minutes after a test dose before giving the full dose; however, Clark also testified she could not see Dr. Yeh’s hands or syringe from where she was positioned and therefore could not say how much medication he gave or whether he paused.
- Plaintiffs sought to impeach Clark with Nurse Spector’s testimony that Clark said shortly after the event (in an elevator) that Dr. Yeh had administered a “big bolus” of drug and Johnna seized immediately.
- Clark testified that she did not recall the elevator conversation with Spector.
- The district court excluded Spector’s impeachment testimony, reasoning that plaintiffs had not asked Clark about the substance of the alleged statement and therefore the proffered testimony was not “inconsistent” with Clark’s testimony.
- After a two-week trial, the jury returned a verdict for Dr. Yeh on the negligence/wrongful death claims that were tried.
- The district court also disposed of other claims before verdict, including summary judgment against the NIED claims and judgment as a matter of law against the child’s separate medical-negligence claim.
- The district court entered judgment and denied plaintiffs’ motion for a new trial, and plaintiffs appealed.

## Issues

1. Did the district court abuse its discretion by excluding extrinsic impeachment evidence (Nurse Spector’s testimony) of Nurse Clark’s prior inconsistent statement when Clark testified she did not recall the conversation?
2. If exclusion was error, was it harmful such that the defense verdict and judgment had to be reversed and the case remanded?
3. Did the district court err in disposing of (a) the NIED claims on summary judgment and (b) the child’s separate medical-negligence claim on judgment as a matter of law?

## Decision

- The Nevada Supreme Court reversed the judgment and remanded for further proceedings.
- The court held the district court abused its discretion by excluding Spector’s testimony offered to impeach Clark with a prior inconsistent statement.
- The court treated Clark’s claimed lack of recollection, in context, as an implicit denial sufficient to permit impeachment with extrinsic evidence of the statement.
- The court concluded the exclusion was not harmless because the impeachment concerned a disputed fact about how the epidural medication was administered, a matter that bore on negligence and causation.
- In light of the reversal and remand based on the evidentiary ruling, the court did not need to grant separate relief on the other appellate challenges to obtain a new trial.

## Legal Principles

- A witness may be impeached with a prior inconsistent statement.
- Extrinsic evidence of a prior inconsistent statement may be admissible for impeachment when the witness is confronted and given an opportunity to explain or deny the statement and the opposing party can examine the witness about it.
- A witness’s asserted failure to remember a prior statement can qualify as “inconsistent” where the testimony functions as a denial of having made the statement.
- Evidentiary rulings on impeachment are reviewed for abuse of discretion; reversal is required when erroneous exclusion of impeachment evidence affects substantial rights and cannot be treated as harmless in the context of the issues tried.

## Conclusion

In *Shelksohn v. Yeh*, the Nevada Supreme Court set aside a defense verdict in a wrongful-death medical-negligence case because the trial court improperly barred plaintiffs from impeaching the labor-and-delivery nurse with another nurse’s testimony about an earlier statement that the anesthesiologist gave a “big bolus” just before the patient seized; the exclusion was an abuse of discretion and warranted reversal and remand.


Shelksohn v. Yeh, 281 P.3d 1218 (2009)