Saturday, December 31, 2016

Are Alternative Theories of Medical Causation Allowed in Personal Injury Claims?


To provide a more in depth analysis of Nevada law, starting in 2017, the blog will move to a monthly format.  I hope you enjoy today’s blog and the new format as we move forward in discussing the exciting developments in the ever changing landscape of Nevada law.  

Today’s blog addresses alternative theories of causation in a personal injury cases. An interesting case that came out of the Nevada Supreme Court on alternative theories of causation is Leavitt v. Siems, 130 Nev.Ad.Op. 54 (July 10, 2014). In Leavitt, Kami Leavitt underwent Lasik eye surgery with Dr. Siems. Unfortunately, after surgery, Kami ended up losing most of her vision in both eyes. 


The case went to trial and the jury felt Dr. Siems did nothing wrong. At trial, Siem’s lawyers argued that Kami’s eyes did not heal properly after the surgery because of her own actions. They argued that Kami abused numbing eye drops after the surgery, making her eye problems worse. To support the “eye-drop-abuse” argument, Siems’ lawyers called one of Kami’s own treating physicians and expert witnesses, Ophthalmologist Dr. Stephen Hansen, M.D., to the witness stand. 


In a strange turn of events, Dr. Hansen testified that he had discharged Kami as a patient for noncompliance. Dr. Hansen also told the jury that felt that Kami was stealing eye drops from his clinic, because bottles went missing after several of her appointments. Dr. Hansen testified that the use of the numbing eye drops may have caused her vision to deteriorate and contributed to her lack of improvement. He also felt that had she followed his directions, her vision could have actually improved after surgery. Not surprisingly, Kami vehemently denied these accusations. But after weighing Kami’s testimony against Dr. Hansen’s account, the jury returned a verdict for the eye doctor, finding that Siems was not negligent and did not cause any harm to Kami. 


Kami asked the court for a new trial and for a different jury to hear the evidence. But this time, Kami’s lawyers asked the court to prevent Dr. Hansen from recounting his “eye-drop-abuse” theory to the jury, since it wasn’t stated to a “reasonable degree of medical probability”.


The court ruled that the defense and plaintiff are held to different standards when it comes to talking about causation in personal injury trials. The court in Leavitt determined, that since the drug-abuse theory was to “contradict” Kami’s theory of negligence and not to propose an “independent alternative causation theory”, the jury was allowed to hear the evidence. The court relied on the recent 2011 case of Williams v. Eighth Judicial District Court, 127 Nev. _, 262 P.3d 360 (2011). The court found that per their ruling in Williams, a defense expert's testimony regarding alternative causation need not be stated to a “reasonable degree of medical probability”, when it is being used to controvert an element of the plaintiffs claim, rather than to establish an independent theory of causation.


Accordingly, once an injured party’s causation burden is met, the defense expert's testimony may be used for either cross-examination or contradiction purposes, without having to meet the “reasonable degree of medical probability” standard.  The only caveat, is that the defense has to be supported by relevant evidence or research. Id. 


The Leavitt court found Dr. Hansen's testimony met these requirements because his assessment was based on his training and experience with numbing eye drops' toxicity through his residency, cornea clinics, and 20 years of clinical experience. The court went on to say that even if portions of Dr. Hansen’s testimony were speculative, it was for the jury to assess the weight to be assigned to his testimony. Citing NRS 50.305; Houston Exploration Inc. v. Meredith, 102 Nev. 510, 513, 728 P.2d 437, 439 (1986).


Next time, we will talk about Pre-Judgment Interest in personal injury cases.

Friday, December 16, 2016

How do You Prove Diminished Value After a Car Crash?


Sometimes after an accident, you don’t have the money to rent a replacement car while your car is getting repaired. Also, if your car is “total loss” and you are waiting weeks for the insurance company to pay for the loss of your car, you might have the funds to pay for a rental. In both scenarios, if you did not receive a rental car, you can ask for “loss of use” damages, for not being able to use your car. If your car was fixed, but sustained extensive damages, you can also ask for “diminished value” damages to your car. 

The Nevada Supreme Court has said that a party is entitled to have the jury consider her “loss of use damages.” See Dugan v. Gotsopoulos, 117 Nev. 285, 289, 22 P.3d 205, 208 (2001).  In Dugan, our high court held, that the lower court’s refusal to permit a party to testify as to rental car costs and its refusal to permit the jury to consider loss of use damages, was reversible error. Id. Moreover, courts have permitted the party to testify about rental car rates as long as that person had some basis for the valuation. Id. Further, loss of use damages may also be awarded for the inconvenience of loss of use based on individual circumstances, to which the party can testify. Id.  


Whether the aggrieved party actually rents a car is irrelevant, because she is still entitled to have the jury consider her loss of use damages. Id. What a reasonable amount to claim for loss of use damages?  Generally, insurance companies will accept $20.00 per day for a rental car. If you have a luxury car, you can ask the insurance company to consider how much it would cost to rent a comparable replacement car. 


In addition to “loss of use” damages, Nevada law allows for claims to be made, as a result of the diminished value of your repaired property.  See Mort Wallin v. Commercial Cabinet Co., 105 Nev. 855, 857 (Nev. 1989). In Mort Wallin, there wasn’t enough evidence presented to the trial court as the actual diminished value of the property at issue. But, the Nevada Supreme Court determined that “diminished value” is a recognizable loss when property has to be repaired. 


Other courts in the U.S. have also determined that “diminished value” is a recognizable loss. A Georgia case found that virtually, as a matter of law, wrecked cars have diminished value. See Mabry v. State Farm, 274 Ga. 498, 556 S.E.2d 114 (2001). A District of Columbia case has also done a survey of the law on this issue. See American Service Center Associates v. Helton, 867 A.2d 235 (D.C. App. 2005). Similarly, an Oklahoma Court has said, the overwhelming weight of legal authority supports the rule that damages are not limited to the cost of repairs actually made, where it is shown that repairs failed to bring the property up to the condition it was in prior to the damage. See Brennen v. Aston, Jr., 2003 OK 91. In such cases, the cost of repairs made, plus the diminution in value of the property, will ordinarily be the proper measure of damages.


Where in town can you get a Diminished Value Report? Las Vegas Auto Appraisers can be reached at 877.868.9123. Wreck Check Car Scan Centers is another provider of diminished value reports. Their phone number is 800.762.2671. Both have reputations on assessing the diminished value of your car. 


Next time, we will talk about alternative theories of medical causation in personal injury claims.