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 Although an unpublished opinion, lessons can be learned from the trial and post-trial analysis.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.