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Shultzaberger v. State Farm Mutual Automobile Insurance Co.

United States District Court, D. New Mexico

October 18, 2018

STEVE P. SHULTZABERGER, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         FACTS

         On May 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., ¶ 5).

         Shultzaberger's 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 recovered. (Id.).

         Following 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. (Id.).

         Dr. 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).

         Shultzaberger 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).

         STANDARD OF REVIEW

         The 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).

         DISCUSSION

         As is 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 surgery.[1]

         Contrary 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”).

         None of 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 ...


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