Another article
March 20, 2011
Working on an article for my job, on the 5 year rule versus the 2 year rule. Actually its interesting.
So few years back, there was an outbreak of hepatitis c in vegas. It was traced, I believe allegedly, to these clinics and an endoscopy center. So, like 4k people sued. The parties worked out a protocal, an order, so that everyone could get through the system. Then last year, everyone realized they were going to run out of time, and that a bunch of cases were going to be scheduled, under the current protocal, after nevadas 5 year mandatory bar on cases that have not reached trial. Unfortunately, this 5 year rule, NRCP 41(e), is not discretionary. A judge MUST dismiss ANY case not in trial in 5 years from the date of the complaint.
Enter the 2 year rule. Like 9 years ago, LOOOONG after NRCP 41e was enacted, the legislature passed a statute that said that medical malpractice cases must be dismissed in 2 years, unless good cause is shown. There was no MANDATORY date on this rule.
So my firm, though, wait, maybe this 2 year rule was meant to, and should, replace the 5 year rule. Then, the courts could just allow all the cases to go beyond the 5 year limit because good cause is clearly shown.
Enter me: would this work? I say: No freaking way.
In a nutshell, I wanted it to work, but it just doesn’t. Courts are extremely hesitant to construe any two rules as conflicting. And really, you have to interpret them as conflicting in order to ignore the 5-year rule’s mandatory deadline. You have to say, the NRS is a deadline, the 5 year rules is a deadline, we should use the NRS one and not the 5 year one. But courts ALWAYS want to interpret rules as working harmoniously, and not abbrogating each other. It makes a lot more sense for a court to interpret the 2 year rule as effective, but still allowing the 5 year rule to kick in when 5 years go by. I mean it would be nice for the courts to use this little trick for now, but the precedent is not something the court wants.
Perhaps more obviously and simply, the NV supreme court has already decided this issue. The legislature tried extending the want of prosecution statute in the past, and the court laughed in their face. Although the legislature here is only abrogating the 5 year rule for med mal cases, it is still abbrogating the rule’s applicability. To interpret the 2-year rule as REPLACING the 5-year rule, would regardless of convenience, be a statement from the court that the legislature could curtail the judiciary’s inherent power to enact want of prosecution statutes. The legislature would be excepting the rule any way you go about it.
I did come up with an alternative, but can’t really figure out the applicability. The court has interpreted stays to toll the want of prosecution statute, so I am wondering if there is some way to stay cases in this fashion?
