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Trial Court's Finding that Biomechanical Expert Testimony was Required to Present a Low-Impact Defense was "Error As a Matter of Law"

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April 2016

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Client Alert

 
 
 
Client
  Alert
 
Written by: Lynn Rivera and Paul Caleo
 
 
 

 

 

 

 

Contact Information

 

 
Lynn Rivera
(775) 398-3065
 
Lynn Rivera represents national corporations in complex tort, personal injury and large loss cases involving claims of products liability, premises liability and negligence.
 
          Full Biography
 
 

 

 
Paul Caleo
(510) 835-6809
 
Paul Caleo is one of the firm's premier trial lawyers who has extensive experience in complex tort, personal injury and large loss cases involving claims of products liability, premises liability, government and public entity defense, construction site accidents and trucking/motor carrier accidents. 
 
 
 
 
 
 
 
 
 
 
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Trial Court's Finding that Biomechanical Expert Testimony Was Required to Present a Low-Impact Defense Was "Error As a Matter of Law"
Recently, in Rish v. Simao, 132 Nev. Ad. Op. 17 (March 17, 2016), the Nevada Supreme Court published a 19-page unanimous panel decision, reversing a multi-million dollar default judgment entered as a case-ending sanction.  The case involved a minor rear-end vehicle collision in stop-and-go traffic.  Plaintiff alleged cervical injuries and sought many millions of dollars in economic and general damages, including hedonic damages and loss of consortium.  At trial, Defendant intended to present a low-impact defense and argue that given the slow speed of the vehicles and the minor nature of the impact from the collision the accident could not have caused Plaintiff's injuries.  Defense counsel retained a medical expert, but not a biomechanical engineer.
 
Prior to trial, Plaintiff's counsel invited error into the proceedings by successfully arguing to preclude the low-impact defense.  In a pretrial motion, Plaintiff's counsel distorted the holding in Hallmark v. Eldridge, 124 Nev. 492, 189 P.3d 646 (2008), and argued that Hallmark required the defendant to retain a biomechanical engineer to lay the evidentiary foundation for a low-impact defense.  The trial court agreed and prohibited any medical expert from discussing the minor impact of the crash and also excluded photographic evidence documenting the minor damage.  During trial, defense counsel was essentially precluded from presenting any evidence regarding the facts of the collision, and the trial court found defense counsel violated its order repeatedly.  Ultimately, as a sanction for the violation, the court struck the answer, entered a default judgment, and dismissed the jury.  After hearing argument, the trial court awarded the Plaintiffs over $4,500,000, including over $2,000,000 for pain and suffering and loss of enjoyment of life and over $681,000 for loss of consortium.  The trial court also awarded over $1,000,000 in attorney's fees.  Notably, the general damages award was significantly disproportionate to the amount of past medical specials that totaled only $194,390.96.  Not surprisingly, on appeal, the Nevada Supreme Court unanimously reversed and remanded the judgment for a new trial.  Rish is notable because it addresses, or at least comments upon, many recurring issues that arise in defending personal injury cases in Las Vegas.  We address these issues below.
I. Disproportionate Damages
 
      Although the Court declined to reach the issue of the disproportionate nature of the general damages award, it did provide some inferential guidance on this issue in footnote 1 of the opinion.  The Court quoted Foster v. Dingwall, 126 Nev. 56, 68, 227 P.3d 1042, 1050 (2010) which states that a party has an obligation to present "substantial evidence that the damages sought are consistent with the claims for which the non-offending party seeks compensation."  Footnote 1 in Rish inferentially supports the argument that an award of general damages almost twenty times the economic damages is facially excessive and punitive.  The purpose of a tort action for negligence is to make the Plaintiff whole, not to make them a multi-millionaire, and this opinion provides additional authority for our argument that evidence in support of an excessive general damages award such as hedonic damages should be stricken given that it contravenes the policies underlying Nevada's tort law.
 
II. Photographs of Accidents
           
            In footnote 4, the Court noted that evidence of photographs and invoices for damage are admissible generally without expert testimony because "there is a common-sense correlation between the nature of the impact and the severity of the injuries."  The court also noted that any prejudicial effect from photographs of an accident may be overcome by cross-examination and presentation of contrary evidence citing to numerous civil cases.  This commentary in Rish provides additional legal support for the admission of photographs of minor vehicle damage in support of the low impact defense without evidentiary foundation.  
III. Prior Lawsuits, Medical-Buildup and Attorney-Driven Care
 
        The Court also commented in footnote 5 on two other issues repeatedly raised by the Las Vegas Plaintiffs' bar in pre-trial motions.  The Plaintiffs' bar regularly seeks to limit any reference to prior lawsuits and also "medical-buildup" or "attorney driven" medical treatment.   Specifically, the Plaintiff will move to preclude evidence the Plaintiff has been injured before and evidence that the Plaintiff's medical treaters have a very close and longstanding business relationship with the Plaintiff's Counsel, treat on lien, and repeatedly testify to causation in their capacity as non-retained experts.  The Court noted that this evidence should not be excluded because it goes to credibility.  In doing so, the court applied its prior jurisprudence regarding expert witnesses in Robinson v. C.G.C., Inc., 107 Nev. 135, 143, 808 P.2d 522, 527 (1991) to non-retained expert treating physicians and indicated that the jury has the right to take business arrangements between the witness, the hiring attorney, and the client into account.  The Court also noted that "medical-buildup" or "attorney-driven" cases are limited to those where the defense attorney argues the Plaintiff's medical treatment was sought to generate a larger jury verdict at the suggestion of the Plaintiff's attorney.  Rish therefore clarifies the unresolved issue that defense counsel gets to fully explore the bias of the treating physicians, just as they would any expert, by presenting evidence of their longstanding business relationship with the Plaintiffs' bar and their repeated testimony regarding causation.
 
IV.  Causation Testimony
 
            In the text of the opinion, the Court reiterated the well-recognized standard for admissibility of expert testimony in Nevada.  The admissibility of an expert's opinion is governed by NRS 50.275 and Hallmark and includes analyzing whether the opinion is based on personalized facts and supported by a factual basis.  The Court clarified that Hallmark did not state or even imply that retaining a biomechanical expert testimony was a condition precedent to presenting a low-impact defense.  It noted that, in Hallmark, the exclusion of the biomechanical expert was fact-specific and it only excluded the expert testimony on nature of the impact of the collision because the expert failed to "review critical information when he formed his opinion."   The Court went on to explain the general principle that medical causation issues, including whether a particular accident resulted in injury, are factual issues for the jury to determine.  Finally, the Court held that a medical doctor may testify to the nature and the severity of a vehicle collision, and whether it caused a Plaintiff's injuries provided there was a sufficient evidentiary foundation laid for the testimony.  Therefore, the Court held the trial court erred in its order limiting the low-impact defense and facts and evidence regarding causation.  Rish clarifies that medical doctors may testify to medical causation and in support of a low-impact defense provided they rely on adequate personalized facts such as medical records and documentary evidence regarding the accident.  We will continue to argue that biomechanical opinions regarding whether a particular force is significant to cause a particular injury is within the purview of the testimony of the biomechanical engineer.
 
V.  Case-Ending Sanctions
 
            The sanction the trial court imposed for violating its order limiting the low-impact defense was severe.  In its written order, the trial court analyzed the factors in Young v. Johnny Ribeiro Building, Inc., 106 Nev. 88, 93, 787 P.2d 777, 780 (1990).  The Nevada Supreme Court applied a heightened standard of review and clarified that the proper analysis for imposing sanctions for attorney misconduct was set forth in BMW v. Roth, 127 Nev. 122, 126, 252 P.3d 649, 652 (2011), and included the following three factors:  (1) specificity of the order; (2) clarity of the violation; and (3) unfair prejudice.  The Court reiterated that counsel must obey all trial court rulings, even a clearly erroneous one, and the imposition of sanctions below will be upheld if the BMWfactors are properly analyzed by the trial court.  Ultimately, in applying the BMW factors, the Nevada Supreme Court ruled that the trial court's order lacked specificity, was overly broad, and was applied inconsistently.  This opinion will be helpful in seeking clarification of pre-trial rulings before trial because the Nevada Supreme Court requires specificity and clarification of any order limiting the admission of evidence. 
 
 
 
 
At Burnham Brown, we do things differently.  We are guided by the principal that action leads to results. Our goal is to resolve our client's cases at under assigned value as quickly and efficiently as possible.  We are trial lawyers but realize that litigation presents risk and may not always be the quickest, efficient, or most cost-effective mechanism for resolution.  We advocate for our client's position and make significant and repeated efforts to negotiate an early resolution to eliminate the risk to the client and resolve the litigation quickly. When an opponent takes an unreasonable position during negotiations, we do not concede but continue our advocacy for cost-effective resolution.   We are always prepared to take a case to trial if necessary.  At Burnham Brown, we have a proven track record of favorable results on behalf of our clients in litigation in California and Nevada. 
 
 
 
 
This article is presented for informational purposes only and is not intended to constitute legal advise