Monday, September 11, 2017
Today’s blog deals with when you have to disclose future medical costs in personal injury trials. A recent case illustrates this point. Christian Cervantes-Lopez was in a car accident. Christian injured his back so badly in the crash, one of his treating doctors thought Christian would eventually need his back fused. His surgeon, Dr. Kaplan, put the surgical recommendation in Christian’s medical records. But, he didn’t put how much it would cost. Instead, on the eve of trial, Dr. Kaplan said it would cost $224,100. See Pizarro-Ortega v. Cervantes-Lopez, 133 Nev. Ad. Op. 37, 17-201718 (June 2017).
Over the defense attorney’s objections, the trial court allowed the jury to hear evidence. In response to this surprise evidence, the defense called its own doctor to the stand. Their doctor, Dr. Duke, said the cost of the surgery should be about half that cost, about $120,000.
The defense also wanted a registered nurse, Tami Rockholt, to testify as a "medical billing expert" regarding the reasonableness of Christian’s medical bills. The trial court determined that Nurse Rockholt couldn’t testify about the bills. But, since Dr. Duke was able to give his opinion on cost, the high court felt the defense did in fact have someone who was able to testify as to Christian’s medical bills. When the jury awarded Christian almost the full cost of his future surgery, the losing party appealed the case to the Nevada Supreme Court.
In looking at the case, the high court said Christian’s lawyers should have provided the cost of the surgery earlier. But, since Dr. Duke had an opportunity to give his own opinion as to the cost of surgery, there was ‘no harm, no foul’ in letting the jury hear the evidence. The court made it a point to note that the at fault party wasn’t arguing whether Christian's future back surgery was necessary, but only whether the cost was reasonable.
The court first looked at the civil court rules which requires a party to produce, "without awaiting a discovery request ... [a] computation of any category of damages claimed." See Nevada Rule of Civil Procedure “NRCP”, Rule 16.1(a)(l)(C). The court went on to note, that an injured party’s treating physician does not need to provide an expert report under Rule 16.1 and can testify regarding any opinions he or she formed during the course of treating the plaintiff. This is so long as all documents supporting those opinions are disclosed to the defendant. See FCH1, LLC v. Rodriguez, 130 Nev., Adv. Op. 46, 335 P.3d 183, at 189-90 (2014).
The high court went on to say, if the trial court made a mistake in on evidence, that mistake had to "materially affect the substantial rights of [the] aggrieved party", to have the parties go through the ordeal of a new trial. See NRCP, Rule 59(a). The high court didn’t think any substantial rights were materially affected.
Interestingly, Christian’s lawyers tried to argue that “there has been a general understanding amongst Nevada attorneys practicing in state court that there is no requirement to provide a cost computation for future medical expenses.” The court didn’t buy this argument. Instead, they said “litigants are not free to disregard the rules of civil procedure, including NRCP 16.1(a)(1)(C).”
The court noted that that the purpose of providing an amount of damages was not to give an exact dollar figure, but to "enable the defendants to understand the contours of their potential exposure and make informed decisions regarding settlement and discovery." (citation omitted).
The at fault party tried to argue that had Dr. Duke been given more time to review Dr. Kaplan's cost estimate, the jury might have agreed with Dr. Duke’s lower cost estimate. The Nevada Supreme Court didn’t buy that argument either. The court said that the at fault party didn’t explain what additional testimony Dr. Duke could have provided regarding Dr. Kaplan's surgery estimate.
Instead, the court felt that Dr. Duke should have been able to provide such testimony, even given the time constraints, because he performs the same type of surgery and because he was Dr. Kaplan's former practicing partner. The court pointed out that it appeared that the jury did give weight to Dr. Duke's opinions, as the amount awarded for Christian's surgery ($200,000) was less than Dr. Kaplan's $224,100 estimate.
Next time, we will talk about how to argue damages at trial.
Monday, August 14, 2017
Today’s blog talks about how bankruptcy can affect personal injury settlements. Recently, the Nevada Supreme Court had to decide whether a person could have more than one active personal injury claim while still in bankruptcy. See Kaplan v. Dutra, 132 Nev. Adv. Op. No. 80 (2016). The high court determined that the injury party, who was also in bankruptcy, was entitled to get benefits from more than one personal injury claim.
In the Kaplan case, David Kaplan had two active personal injury claims. Kaplan was involved in a dog bite attack, where he injured his back. After the dog attack, Kaplan had back surgery. With a seemingly stream of bad luck, just six weeks later, Kaplan was rear-ended in a car accident. The car accident caused the need for Kaplan to undergo a second back surgery.
Kaplan filed personal injury claims for both injuries. Kaplan later filed for bankruptcy. His two personal injury cases settled and he was set to receive his share of the settlement funds from both cases. Nevada law allows for injured debtors to take $16,150 of their personal injury settlement for themselves. See NRS 21.090(1)(u), Kaplan asked the Court to allow him his two $16,150 exemptions.
The person in charge of overseeing Kaplan’s bankruptcy, the Trustee, thought that Kaplan should only get one $16,150 exemption. In reviewing both parties’ arguments, the Nevada Supreme Court sided with Kaplan. The high court determined that Kaplan would be allowed to recover on both his dog attack and car accident case.
“We conclude that under NRS 21.090(1)(u), a debtor is entitled to multiple personal injury exemptions of $16,150 on a per-claim basis.” Specifically, NRS 21.090(1)(u) provides an exemption for [p]ayments, in an amount not to exceed $16,150, received as compensation for personal injury, not including compensation for pain and suffering or actual pecuniary loss, by the judgment debtor. . .
The Nevada Court has previously noted that "[w]e liberally and beneficially construe our state exemption statutes in favor of the debtor." In re Christensen, 122 Nev. 1309, 1314, 149 P.3d 40, 43 (2006). "The purpose of Nevada's exemption statutes is to secure to the debtor the necessary means of gaining a livelihood, while doing as little injury as possible to the creditor." Savage, 123 Nev. at 90, 157 P.3d at 700 (internal quotation marks omitted). So, if you are in involved in a personal injury case and have an active bankruptcy, you will be allowed a maximum of $16,150 for each personal injury case you have.
Next time, we will talk about when you have to disclose future medical costs in personal injury trials.
Friday, July 21, 2017
This month’s blog is a follow up to our previous discussion of the Behr case, on what damages can be awarded to an injured party at trial. As readers may recall from last month’s blog post, the Behr case dealt with an alleged brain injury following a car accident. See the unpublished opinion from the Nevada Court of Appeals. Behr v. Diamond, No. 66612 (Nev. App., 2015).
The Behr court determined that a claim for future pain and suffering on subjective injuries must be supported by expert testimony. Expert testimony is needed to establish that "[F]uture pain and suffering is a probable consequence rather than a mere possibility." Lerner Shops of Nev., Inc. v. Marin, 83 Nev. 75, 79-80, 423 P.2d 398, 401 (1967).
A subjective disability was defined as one that was not visible to others. Common examples of subjective injuries were: headaches and low-back pain, as well as mental worry and distress. See Gutierrez v. Sutton Vending Serv., Inc., 80 Nev. 562, 566, 397 P.2d 3, 4-5 (1964) and Sierra Pac. Power Co. v. Anderson, 77 Nev. 68, 75, 358 P.2d 892, 896 (1961).
By contrast, objective injuries included shoulder injuries that caused an observable limited range of motion or broken bones. Krause Inc. v. Little, 117 Nev. 929, 938, 34 P.3d 566, 572 (2001). The court held that objective injuries do not require expert testimony because "the extent to which a broken bone causes pain and suffering is common knowledge." Id.
In Behr, the court awarded future pain and suffering for the injured person’s post-concussion syndrome and headaches. The trial court explained, "I believe that Heather's pain and suffering in the past and in the future is related to post-concussion syndrome. And it's real, and headaches can be very debilitating and are worthy of compensation just as—just as if there were a broken bone."
The appellate court struck down the trial court’s ruling, since headaches and shoulder pain are subjective injuries and require expert testimony to establish whether pain and suffering will continue into the future. See Sierra Pac. Power Co., 77 Nev. at 75, 358 P.2d at 896.
Generally speaking, a shoulder injury that reduces one's range of arm motion is an objective injury and thus, a plaintiff's testimony alone can support an award of future damages. See Krause Inc., 117 Nev. at 938, 34 P.3d at 572. Here, however, the injured party said she no longer experienced problems with her shoulder and that she could "throw a softball" and "pick up a bale of hay" with no problem.
The Behr court also struck down the award for future pain and suffering for post-concussion syndrome and headaches. According to the experts who testified at trial, the symptoms of post-concussion syndrome were nausea, vomiting, memory problems, fatigue, personality changes, headaches, dizziness, depression, anxiety and insomnia. Because the court could not readily observe these injuries, expert testimony was needed to establish future pain and suffering. See Gutierrez, 80 Nev., at 566, 397 P.2d at 4-5.
The Behr case is interesting in that the Nevada appellate court made a distinction not only between past and future damages, but also subjective versus objective injuries. Next time, we will talk about how bankruptcy affect personal injuries settlements.
Thursday, June 15, 2017
An interesting case recently came out of our new Nevada Court of Appeals concerning pain and suffering. Behr v. Diamond, No. 66612 (Nev. App., 2015). Although an unpublished opinion, lessons can be learned from the trial and post-trial analysis. In the Behr case, the jury found in favor of the injured party. However, court struck down the jury’s award for future pain and suffering.
In the accident, the injured party hit her head. She lost consciousness and later had a seizure. She suffered a concussion and doctors later diagnosed her with post-concussion syndrome. Later medical tests also revealed that her brain tissue was jolted and that she had a shoulder tear. The injured party later underwent two brain surgeries to alleviate her brain injuries. She also had surgery to repair the tear in her shoulder.
However, the at fault party claimed the injured party’s surgeries were not caused by accident. After hearing the evidence, the court found the brain surgeries were not related to the incident. Yet, the court felt that the injured party suffered other significant problems as a result of the accident. In addition to past damages, the court awarded damages for future pain and suffering.
On appeal the court said they would not reduce an excessive damages award that was given under the influence of passion or prejudice and when it shocks the conscience. Hernandez v. City of Salt Lake, 100 Nev. 504, 508, 686 P.2d 251, 253 (1984).
The Behr court cited authority that a jury is given wide latitude in awarding damages for medical bills. Countrywide Home Loans, Inc. v. Thitchener, 124 Nev. 725, 737, 192 P.3d 243, 251 (2008). And damages for pain and suffering are peculiarly within the jury's province. Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 454-55, 686 P.2d 925, 932 (1984). "[T]he mere fact that the verdict is a large one is not conclusive that it is the result of caprice, passion, prejudice, sympathy or other consideration. . . ." Wells, Inc. v. Shoemake, 64 Nev. 57, 74, 177 P.2d 451, 460 (1947).
The court went on to say that a claim for damages for future pain and suffering arising from subjective physical injury must be supported by expert testimony to the effect that "future pain and suffering is a probable consequence rather than a mere possibility." Lerner Shops of Nev., Inc. v. Marin, 83 Nev. 75, 79-80, 423 P.2d 398, 401 (1967). The outcome of this case is to know that a jury has wide latitude in award damages for past and future pain and suffering. However, when it comes to subjective injuries, their hands are somewhat tied, unless there is supporting medical evidence.
Since the discussion of this case is so important, this blog will be broken down into two parts. Next time, we will talk about objective versus subjective injuries in jury trials.
Monday, May 22, 2017
In a somewhat typical car accident, Doron York, caused a car accident. As a result of York’s negligence, Emmett Smith was injured in the accident. See York v. Smith, 367 P.3d 821 (Nev., 2010). When the case didn’t settle, Smith sued York. At trial, the jury agreed that Smith had been injured the accident and awarded him damages.
After hearing all of the evidence, the jury awarded Smith damages for both past and future damages. The future damages were allocated to allow Smith to pay for a possible future ankle surgery. Not liking the award, the at fault driver appealed the decision to the Nevada Supreme Court. The Nevada high court determined that the jury was indeed out of bounds for making its award. We will go into detail about what happened at trial.
At trial, the injured party, Smith, put a medical expert on the witness stand. Smith’s expert stated that future surgery was just one of many possible future treatment options for Smith. The expert also noted that Smith hadn’t actually decided whether he was in fact going to have surgery in the future.
The Nevada Supreme court dinged the trial results because the injured party’s expert didn’t address the likelihood that his patient would undergo a specific treatment option. The court also noted that the expert failed to state whether there was a “reasonable degree of medical probability” that the surgery was actually necessary. See Banks v. Sunrise Hospital, 120 Nev. 822, 834, 102 P.3d 52, 61 (2004) ("Generally, a medical expert is expected to testify only to matters that conform to the reasonable degree of medical probability standard.") (quotations omitted).
In discussing the defects with the injured party’s expert, the high court said that a person seeking future medical expenses "must establish that such future medical expenses are reasonably necessary," Hall v. SSF, Inc., 112 Nev. 1384 1390, 930 P.2d 94, 97 (1996), and that the contemplated damages are reasonably certain to be incurred. See Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 249, 955 P.2d 661, 671 (1998)(indicating that in order to recover future medical expenses, a plaintiff must show "a reasonable probability that such expenses will be incurred." (citing Saide v. Stanton, 135 Ariz. 76, 659 P.2d 35, 37 (Ariz.1983)); Nev. J.I. 10.02 (providing that recoverable future medical expenses are those that a jury believes a plaintiff "is reasonably certain to incur.").
As a result of the court’s decision, the court reduced the jury's verdict for future medical expenses by the cost of the proposed ankle surgery. What does this mean in personal injury trials? Past damages can be stated to the lower, reasonable degree of probability. But, by contrast, future damages are held to higher standard, that of a reasonable degree of certainty.
During this process, the court also deleted the jury’s entire award for future pain and suffering. Next time, we will talk about this important issue.
Thursday, April 6, 2017
William Poremba was driving as part of his job for Southern Nevada Paving. While driving, he got into a car accident. See Poremba v. S. Nev. Paving, 133 Nev. Adv. Op. 2 (Jan. 26, 2017). William later filed a workers’ compensation claim through his employer. Since the accident wasn’t his fault, William also made a personal injury claim against the driver that hit him. William ultimately settled his personal injury claim.
As is typical in most settlements, the settlement agreement didn’t specify how the funds were to be allocated. For example, there was no mention how much of the settlement would go towards for pain and suffering, medical bills or lost wages.
After he was done treating and his personal injury case settled, William tried to go back to work. However, when William tried to go back to work, he realized that he needed additional medical care through the worker’s compensation program. However, William’s request to reopen his worker’s compensation claim was denied. William appealed the decision and was again told he couldn’t re-open his worker’s compensation case. Not be deterred, William’s lawyer took his case all the way up to the Nevada Supreme Court.
In discussing whether his claim could be re-opened, Nevada’s high court, concluded that William’s case could in fact be re-opened. The court said that worker’s compensations insurers could be paid back for medical bills that they paid, but are NOT entitled to reimbursement from the portion of the settlement designated for pain and suffering or lost wages. See NRS 616A.090.
What does this mean for your personal injury case? If you have a worker’s compensation component to your personal injury case, worker’s compensation can only get paid back for medical treatment that they provided. Any monies you receive for pain and suffering or lost wages cannot be taken by worker’s compensation program.
Next time, we will talk about claiming past versus future damages in trial.
Thursday, March 16, 2017
Can an Insurance Company Write a Reservation of Rights Letter and Still Have the Insurance Lawyers Represent the Insured Driver?
You cause a car accident and get sued. Now what? Part of having car insurance means your insurance company has to hire a lawyer to defend you in lawsuits. What happens if your insurance company thinks you didn’t have coverage for the acts alleged against you? Your insurance company can write a “reservation of rights” letter, saying that they will hire a lawyer to represent you. But if it turns out that you acted intentionally or did something else that is “excluded” under your policy, your insurance company will not have to pay any damages. This issue came up after a rowdy house party in Las Vegas. See State Farm Mutual Insurance Company v. Hansen, 131 Nev.Ad.Op. 74 (2015).
In the Hansen case, Stephen Hansen went to a house party. When things got out of control, Stephen tried to leave. To keep Stephen and the fight going, some of the party guests tried to prevent Stephen from leaving the party. Eventually Stephen drove off. But, as luck would have it, the party was in a gated community. In waiting for the gates to open, one of the party guests, Brad Aguilar, rammed his car into Stephen’s car. Stephen later filed a lawsuit against Brad for his injuries.
Brad was insured by State Farm. State Farm initially agreed to defend Brad. But, they wrote Brad a “reservation of rights”. The letter said they would pay one of their lawyers to defend him, but they may not pay out any judgment. This is because insurance companies agree to pay claims for “negligent” or careless acts, but not “intentional” ones, like Brad intentionally ramming his car into Stephen’s car! Go figure, you can’t vandalize a neighbor’s house and expect your insurance company to pay for your acts!
The issue for the Court in Hansen, was whether it was legal for State Farm to hire a lawyer for Brad, but that they may not pay for damages if it turns out he intentionally tried to hurt Stephen. The seminal case comes out of California, decided over 30 years ago. The case is Navy Federal Credit Union v. Cumis Insurance Society, Inc., 162 Cal.App.3d 358, 208 Cal.Rptr. 494, 506 (Ct.App.1984). Since the case deals with an attorney or “counsel” for an insured, people generally refer to this as “Cumis counsel”.
In Nevada, the ethical rules for lawyers say that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” RPC 1.7(a). In discussing the conflict of interest issue, the Court said:
But when an insurer provides counsel to defend its insured, a conflict of interest may arise because the outcome of litigation may also decide the outcome of a coverage determination—a determination that may pit the insured's interests against the insurer's. For example, an insurer will want the litigation outcome to determine coverage in a way favorable to the insurer, such as by deciding that the insured's acts were intentional and therefore not covered. Conversely, the insured will want to be found negligent so that the insurer will pay his liabilities.
The Hansen Court confirmed that Nevada is a considered a “dual-representation” state: where the insurance company lawyers represent both the insurance company and its insured. See Nev. Yellow Cab Corp. v. Eighth Judicial Dist. Court, 123 Nev. 44, 52, 152 P.3d 737, 742 (2007).
The Court acknowledge that this approach may violate the spirit of the ethical rules that“[a] lawyer shall not accept compensation for representing a client from one other than the client unless .. [t]here is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship.” RPC 1.8(f). When the insurance company picks the lawyer, the Hansen Court noted that there is a “legitimate question” whether the hired gun could really be independent. “For instance, the attorney might have an incentive to act favorably toward the insurer in order to garner future business.”
Despite all of the above issues, the Hansen Court affirmed the Cumis rule that “For independent counsel to be required, the conflict of interest must be significant, not merely theoretical, actual, not merely potential.” MBL, 160 Cal.Rptr.3d at 920 (internal quotations omitted). Therefore, even when (1) there is a reservation of rights and (2) insurer-provided counsel has control over an issue in the case that will also decide the coverage issue, courts must still determine whether there is an actual conflict of interest.”
In the end, the Hansen Court said trial courts must determine, on a case-by-case basis, whether there is an actual conflict of interest. A reservation of rights letter itself doesn’t necessarily mean there is conflict of interest. This, despite the fact that the lawyer for the insured is selected and paid for by the insurance company.
Next time, we will talk about injury settlements and worker’s compensation.