Monday, May 22, 2017
Is There a Difference When Claiming Past Versus Future Damages in Trial?
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.