United States District Court, D. New Mexico
STEVE P. SHULTZABERGER, Plaintiff,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
ORDER DENYING DEFENDANT'S MOTION FOR PARTIAL
R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Defendant State
Farm Mutual Automobile Insurance Company's motion for
partial summary judgment. (Doc. 37). State Farm argues its
insured, Plaintiff Steve Shultzaberger, cannot demonstrate
that MW caused his injuries when her car t-boned his truck.
According to State Farm, Shultzaberger, who suffered from
debilitating neck problems before the wreck, needs a medical
expert to tie the accident to a 2015 neck surgery, and the
deposition testimony of Gregory Misenhimer, MD,
Shultzaberger's surgeon, does not make the connection.
State Farm contends that, as a result, Shultzaberger lacks an
essential element of his claim for bad faith-absent MW's
negligence, State Farm had no obligation to pay
Shultzaberger's underinsured motorist benefits under the
insurance policy. In Shultzaberger's view, an expert is
unnecessary to show that the crash aggravated his
preexisting, degenerative neck condition. With the consent of
the parties to conduct dispositive proceedings, the Court has
reviewed the parties' submissions as well as the record
on summary judgement. Having done so, the Court
DENIES State Farm's motion.
22, 2013, Shultzaberger was returning home to Nogal, New
Mexico from Ruidoso where he had picked up stucco from a
local lumber company. (Doc. 54, Shultzaberger Aff., ¶
5). As he drove in his Dodge pickup truck on Highway 48,
Shultzaberger observed MW approaching in her parent's
Toyota on Enchanted Forest Road from his right. (Docs. 1,
Compl; 54, Shultzaberger Aff., ¶ 5; Shultzaberger Dep.,
at 24-25). MW was either talking on her cellphone or looking
down; as Shultzaberger looked away, MW t-boned
Shultzaberger's truck with the Toyota she was driving.
(Doc. 54 Shultzaberger Aff., ¶ 5, Shultzaberger Dep. at
25). Shultzaberger's “head was thrown violently to
the right and then rebounded to the left until it struck the
driver side door.” (Doc. 54, Shultzaberger Aff., ¶
neck hurt from the accident. (Id., ¶ 6). First
responders examined him, but “allowed [Shultzaberger]
to go home for the night.” (Id.). Three days
later, Shultzaberger visited the Lincoln County Medical
Center's emergency room “because [his] neck pain
had gotten worse and [he] feared the whiplash [he] endured
during the [accident] caused some injury to [his] recent neck
surgery.” (Id., at ¶7). That procedure
was a laminectomy performed at the Bonati Spine Institute in
Florida in March 2013, about two months before the accident.
(Doc. 54, Shultzaberger Aff., ¶¶ 1-2; Misenheimer
Dep. at 9 (Feb. 2, 2018)). Shultzaberger had the laminectomy
because of a decade-long struggle with neck pain that
worsened from his work as a stone mason. (Doc. 54,
Shultzaberger Aff., at ¶1). By 2011, the pain was so bad
that he ceased employment as the owner and manager of White
Mountain Masonry. (Id.). Following the surgery,
Shultzaberger's improvement was marked, and his surgeon
decided not to perform a second surgery that was initially
contemplated. (Id., ¶ 4). In fact,
Shultzaberger returned to work as a stone mason, fully
the trip to emergency room after the accident, pain from the
whiplash got “progressively worse, ” medicine
prescribed did not help, and Shultzaberger again stopped
working. (Id., ¶¶ 7-9). Shultzaberger
visited several doctors in attempt to find relief. At least
two providers refused to treat and/or perform surgery because
Shultzaberger had been injured in car accident.
(Id., ¶¶ 10). In 2015, Shultzaberger was
referred to Dr. Misenhimer, an orthopedic surgeon in El Paso,
Texas. Shultzaberger did not tell Dr. Misenheimer about the
car accident out of fear that Dr. Misenheimer too would
refuse to treat him. (Id., ¶¶ 11-12).
Shultzaberger did, however, apprise Dr. Misenhimer of the
earlier laminectomy. (Doc. 54, Misenhimer Dep., at 4 (Feb. 2,
2018)). Dr. Misenhimer operated on Shultzaberger in December
2015 and fused three neck vertebrae. (Doc. 54, Shultzaberger
Aff., ¶12). Since the second procedure, Shultzaberger
says, he has had no pain in his neck and “feel[s] as if
[he] ¶ 90% recovered from neck pain.”
(Id.). He has returned to work as a stone mason.
Misenhimer was twice deposed in this case. In the first
proceeding, the doctor testified that the wreck likely did
not “totally disrupt the surgery . . . but the
accident undoubtedly caused pain by a whiplash-type injury,
where his head was either thrown forward and backward or side
to side at the time of the accident.” (Doc. 54,
Misenhimer Dep., at 10 (Feb 2, 2018)). Dr. Misenhimer also
explained that with whiplash both ligaments and muscles
“will be injured, and they will be stretched,
pulled.” (Id.). Whiplash can aggravate
“underlying conditions, degenerative disks[.]”
(Id.). In a second deposition, Dr. Misenhimer
clarified that “what [he] saw on [his] findings and
x-ray was degenerative disc disease.” (Doc. 54,
Misenhimer Dep., at 5 (July 19, 2018). Dr. Misenhimer
emphasized that “our spines are built to wear out . . .
[s]o degenerative spinal process is just, in most cases, the
natural wear and tear that we put through our
spines.” (Id.). Nonetheless, the degenerative
process “can be altered or accelerated, or changed in
some way, by a trauma, by an injury of some sort.”
(Id.). In considering Shultzaberger's first
surgery, Dr. Misenhimer opined that “[i]f the patient
had . . . a decompression laminectomy . . . a couple months
before . . . an accident, he is not totally recovered from
that procedure.” (Id., at 12-13). According to
the doctor, “[i]t takes several months to get over
that, so any undue or unexpected force applied to the spine
can definitely cause an exacerbation of pain.”
(Id., at 13).
was charged over $135, 000 by the hospital for the surgery
and about $9, 000 by Dr. Misenhimer for the surgery and
treatment. (Doc. 54, Shultzaberger Aff., ¶ 13). Since
the accident, Shultzaberger incurred more than $20, 000 in
“other doctor bills” and about $100, 000 in lost
wages. (Id.). Shultzaberger estimates his pain and
suffering is worth $250, 000. (Id.). Shultzaberger
settled his claim against MW for the policy limits of her
parents' insurance policy, $100, 000, which in his view
is not a full recovery. (Id.) Shultzaberger
initiated the instant lawsuit to compel his insurance company
to pay some or all of the $250, 000 he has in underinsured
motorist coverage, and for bad faith in failing to pay his
claim. (Doc. 1-1, Compl.) State Farm removed the matter to
this Court on October 12, 2017. (Doc. 1).
Court must enter summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Once the movant demonstrates the absence
of a triable issue of fact, the non-movant then has the
burden “to set forth specific facts from which a
rational trier of fact could find for” him. Fox v.
TransAm Leasing, Inc., 839 F.3d 1209, 1218 (10th Cir.
2016) (citation omitted). These facts must come from record
evidence-“affidavits, deposition transcripts, or
specific exhibits incorporated therein”-and “must
establish, at a minimum, an inference of the presence of each
element essential to the case.” Savant Homes, Inc.
v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). In
determining whether summary judgment is warranted, the Court
is obligated to draw all reasonable inferences in favor of
the nonmoving party. See Hornady Mfg. Co. v. Doubletap,
Inc., 746 F.3d 995, 1004 (10th Cir. 2014). Unless
“the facts are undisputed and reasonable minds can draw
only one conclusion from [the proffered evidence], ”
the issue of causation “is generally a question of fact
for the jury.” Pioneer Ctrs. Holding Co. ESOP &
Tr. v. Alerus Fin., N.A., 858 F.3d 1324, 1334 (10th Cir.
2017) (citation omitted).
relevant to this motion, Shultzaberger seeks damages for
State Farm's alleged bad faith in failing to pay
underinsured motorist benefits. In New Mexico, a plaintiff
must prove legal entitlement to recover damages as a
condition precedent for a claim of bad faith. See Aragon
v. Allstate Ins. Co., 185 F.Supp.3d 1281, 1283-84
(D.N.M. 2016) (synthesizing New Mexico law on bad faith/UIM
claims). To satisfy this threshold, the insured must
demonstrate the underlying tortfeasor's
negligence-“duty, breach, proximate cause, and loss or
damages” that exceed the tortfeasor's policy
limits. State Farm Mut. Auto. Ins. Co. v. Barker, 96
P.3d 336, 339 (N.M. Ct. App. 2004). Here, State Farm asserts
Shultzaberger lacks expert medical testimony to establish
that MW's negligence caused Shultzaberger to suffer any
injury and most significantly the second
to State Farm's implication, New Mexico law does not
establish a bright-line rule requiring the testimony of a
medical expert to prove causation. The cases on which State
Farm relies are either medical malpractice, workers'
compensation, or criminal cases. See Woods v.
Brumlop, 377 P.2d 520, 523 (N.M. 1962) (the
plaintiff's testimony that her hearing loss was caused by
electroshock therapy was inadmissible to prove malpractice:
“the cause and effect of a physical condition lies in a
field of knowledge in which only a medical expert can give a
competent opinion”); Folz v. State, 797 P.2d
246, 260 (N.M. 1990) (finding expert testimony is not
“mandatory” to establish emotional damages, but
stating in dicta that “in many cases expert
testimony will be required to establish causation”);
Buchanan v. Downing, 394 P.2d 269, 272-73 (N.M.
1964) (rejecting application of res ipsa loquitur in
medical malpractice case involving injections); Baca v.
Bueno Foods & Safeco Ins. Co., 766 P.2d 1332, 1334
(N.M. Ct. App. 1988) (applying the statutory requirement for
expert testimony in workers' compensation cases);
State v. Newman, 748 P.2d 1006 (N.M. Ct. App. 1989)
(Hartz, J. concurring) (explaining in dicta in a
criminal child-abuse case that “courts ordinarily do
not permit juries to draw a conclusion regarding medical
diagnosis or medical causation without expert testimony
directly supporting the conclusion”).
the decisions above are particularly helpful in the
automobile-accident context. The need for expert testimony in
medical malpractice cases is more obvious because the
plaintiff must show “the result or incident occurred
because of the physician's failure to meet the
standard [of care][.]” Cervantes v. Forbis,
389 P.2d 210, 213 (N.M. 1964) (emphasis added). In
workers' compensation actions, the requirement for expert
testimony is statutory. Criminal trials, of course,
demand proof beyond a reasonable doubt. In other types of
lawsuits, “the requirement for expert testimony . . .
is the exception rather than the rule.” Cumming v.
Nielson's, Inc., 769 P.2d 732, 735 (N.M. Ct. App.
1988) (construction case). At the very least, expert
testimony must be helpful to the jury, and ...