LAS VEGAS – “Shocking new evidence” appeared on a Las Vegas television station as attorneys for Motor Coach Industries were preparing appeals of an $18.7-million jury award following a bicyclist’s fatal collision with an MCI motorcoach.
KLAS-TV reporter George Knapp obtained a long-hidden audit of billing problems at the University of Nevada-Reno medical school where the victim practiced hand surgery.
Kayvan Khiabani, 51, was killed on April 20, 2017, while riding his bike next to a bus. Witnesses said he bumped into the bus and was run over.
On the day of the accident, the reporter found, Khiabani had been told he was losing his job. Some of Khiabani’s colleagues told Knapp they immediately were suspicious that the collision was not accidental.
This past March, a jury awarded Khiabani’s sons $18.7 million in damages from MCI, which manufactured the bus involved in the accident. The jury said MCI failed to provide an adequate warning system that could have avoided the accident, but said bus defects didn’t cause the accident.
MCI has since requested a new trial in the case.
The 2016 audit “uncovered widespread billing errors and serious lack of oversight” at the university’s medical clinics, the station reported.
The “blatant billing problems” included “overbilling of Medicare, Medicaid and private insurance . . . A Sept. 2016 email mentioned the most serious compliance issue centered on someone identified as ‘Dr. K.’ Dr. K turns out to be Dr. Kayvan Khiabani, a hand surgeon who earned more than a million dollars from UNR in 2015.”
Administration of University of Nevada medical practices was being transferred from the Reno campus to Las Vegas. The television station obtained an email stating that “this doctor would not be hired by UNLV (University of Nevada-Las Vegas) and that his behavior should be reported to the medical board and federal government.”
On the day “Khiabani learned he was being fired, he died in a collision with a bus,” KLAS reported. “But the jury never heard that Khiabani had been fired or that he was under investigation.”
Hearings on some motions submitted by MCI since the jury award, including a motion for a limited new trial, are scheduled in Clark County District Court on July 6.
The jury delivered its verdict on March 23. In May, MCI filed several motions on technical grounds, including an appeal to the Nevada Supreme Court. The filings also addressed the new information regarding Khiabani’s professional status.
In “A Motion for a Limited New Trial,” one section is headed, “Newly Discovered Evidence and Its Relevance: The Channel 8 News Reports Uncovered Shocking New Evidence.”
Much of this section is redacted in the document available for public view but the headings remain visible:
- The New Evidence Casts Doubts on the Jury’s Determination of Damages and Even Liability
- If Plaintiffs or Plaintiffs’ Counsel Were Aware (redacted) then the Judgment Must Be Set Aside for Fraud on the Court
- A New Trial is Necessary Even if Plaintiffs Were Unaware
- Plaintiffs Had an Affirmative Duty to Obtain and Disclose the Information, and Their Disclosures and Answer to an Interrogatory Led MCI to Believe They Had Relayed All Relevant Information
- It Is Very Likely that MCI Could Not Have Discovered This New Evidence Before and Never Would Have But for it Being Leaked to the Press
After the accident occurred, the Las Vegas Review-Journal reported that Khiabani “happened to be cycling parallel to a Motor Coach Industries bus about 10:30 a.m. when Khiabani appeared to accidentally veer left, witnesses told police. The quick move caused him to bump into the passenger side of the bus, then dip into the path of the vehicle. The 50-year-old driver of the tour bus stayed at the scene and did not show signs of impairment, police said. The coroner ruled Khiabani’s death an accident.”
Ryan’s Express of Phoenix, Ariz., operated the bus.
In one of its motions before the court, MCI attached a transcript of trial testimony by the motorcoach’s driver, Edward Hubbard, who had been driving buses since 1997. He testified that he saw Khiabani in the bicycle lane, five to seven feet to the right of the motorcoach. He believed he would pass the bicycle “without incident,” although he momentarily lost track of the rider due to blind spots on the right side of the coach.
Hubbard said he executed a “rocking and rolling” maneuver in his seat about every 50 feet to “eliminate blind the spots” in his view of the bicycle lane. After the nose of the bus had passed the rider, he testified that he saw, in his peripheral vision, the bicyclist drift toward the motorcoach.
“I proceeded to turn my steering wheel to the left to avoid hitting him, because he was that close . . . he was coming in,” Hubbard said. “He wasn’t straight. He was coming in.”
The suit was pursued on behalf of Khiabani’s two sons. His wife, dentist Katayoun Barin, was diagnosed with cancer three months before the accident and died before the case was tried.
Even without new evidence, the March 23 verdict was destined for appeal. The jury found no vehicle defects responsible for the fatal collision before awarding Khiabani’s sons $18.7 million in damages from MCI.
During the one-month trial before Judge Adriana Escobar, the family’s attorneys alleged that the 2008 MCI J4500 motorcoach was defective in design because it had a right-side driver’s blind spot; lacked proximity sensors to warn of the bicyclist’s presence; lacked a rear-wheel protective barrier; and had an aerodynamic design that could cause a wind blast to destabilize and pull in bicyclists.
After deliberating for less than a day in Clark County District Court on March 23, the jurors returned a verdict finding none of those four defects “made the coach unreasonably dangerous and a legal cause of Dr. Khiabani’s death.”
Then, the jury answered “yes” to the fifth question on the verdict form, “Did MCI fail to provide an adequate warning that would have been acted upon?”
The jurors awarded actual damages but decided MCI was not liable for punitive damages.
A key point in MCI motions is the failure of the verdict form to ask jurors whether “the failure to warn” was in fact a cause of the accident. In a motion seeking “a judgment as a matter of law,” MCI alleges:
“Plaintiffs did not meet their burden to demonstrate that a warning would have made a difference. Rather, the evidence conclusively demonstrates that, even if MCI had given a warning, (the driver) did not have time to heed it before the collision.
“Plaintiffs failed to meet their burden to establish causation because they did not propose a specific warning that should have been given or demonstrate that any such warning would have prevented Dr. Khiabani’s death. Further, judgment as a matter of law is appropriate because MCI was not required to manufacture a motorcoach that could prevent injury to bicyclists.”
Later in that motion, the attorneys add, “MCI was not required to make a motorcoach that does not create an air disturbance in the first place.”
MCI concluded in the motion for judgment: “MCI does not argue that manufacturers of defective products can never be liable under the wrongful-death statute. But the plaintiffs in those cases need to at least show a ‘wrongful act or neglect’ — conduct that negligently, recklessly or intentionally causes harm.”
In a separate motion, MCI states, “The district court did not submit the failure-to-warn claim to the jury at all. Over the defense (MCI) objection, the district court submitted interrogatories on only some of the elements of a failure to warn case, leaving out causation . . . the district court erred and a new trial is required.”
Another MCI motion requests that pre-trial settlements made by other defendants offset the $18.7 million awarded by the jury. While the dollar totals are redacted in this motion, it states that the Khiabani family agreed to settlements with Michelangelo Leasing, doing business as Ryan’s Express, and motorcoach driver Hubbard; Bell Sports, maker of the victim’s bike helmet; and SevenPlus Bicycles, which sold the bicycle.
MCI also alleges that one of its expert witnesses was prohibited impermissibly from testifying about laws covering failure to warn. The expert would have testified that “unnecessary warnings mislead and are ineffective . . . too many warnings are distracting and unsuccessful.”
The court also erred, MCI alleges, by excluding evidence about Khiabani’s income tax payments from jury deliberations. Because Khiabani was in the highest tax bracket, this resulted in a difference of $300,000 annually in projected support of his family.
Khiabani’s salary and benefits for 2016 were listed at $1,040,001.49 by the public service website TransparentNevada.com.
