Shultzaberger v. Hall et al
Filing
64
ORDER by Magistrate Judge Kevin R. Sweazea denying 37 Motion for Summary Judgment (cbf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
STEVE P. SHULTZABERGER,
Plaintiff,
No. 2:17-cv-01028-KRS-CG
v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR PARTIAL
SUMMARY JUDGMENT
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.
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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.).
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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] is 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
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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 nonmovant 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
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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
1
In its reply brief, State Farm claims in a final sentence that “Plaintiff has failed to meet his burden of proof on
reasonableness and relatedness of the rendered treatment, including the spine surgery.” This argument was not the
basis on which State Farm moved for summary judgment in the first place, it is unsupported by record designation,
and the Court declines to consider this matter further, having been newly raised in a reply brief. See Pippin v.
Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1192 (10th Cir. 2006) (district court need not consider new issues or
arguments raised in a reply brief).
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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 “[t]he corollary to this rule is that if the fact in
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issue is within the ken of the average lay juror, expert opinion testimony is not necessary.” Mott
v. Sun Country Garden Prods., 901 P.2d 192, 200 (N.M. 1995).
Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1983), in diversity cases, the Court
applies “state law with the objective of obtaining the result that would be reached in state court.”
Butt v. Bank of Am., N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). 2 Where there is no
“authoritative pronouncement” from the New Mexico Supreme Court, the Court must predict
how the state’s highest court would rule. See Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569,
1574 (10th Cir. 1984). “[A] court formulating an Erie prediction should look first to the words
of the state supreme court.” Peña v. Greffet, 110 F. Supp. 3d 1103, 1132 (D.N.M. 2015). Here,
Morris v. Rogers, 456 P.2d 863, 864 (N.M. 1969), provides sufficient guidance for the Court to
answer the question presented.
In Morris, the plaintiff was hurt in accident involving two pickup trucks and was
successful in obtaining damages at trial. Prior to the incident, he had suffered from five “cervical
injuries,” and underwent fusion surgery before the crash. After the wreck, a surgeon re-fused
one cervical level and fused another. At trial, the surgeon opined that the new fusion “had some
degree of trauma as a result of the prior injuries” in addition to “some deterioration [already] in
progress.” Id. (internal citations omitted). In fact, “[t]he doctor agreed that the condition
resulting in surgery at the two levels could have occurred without the accident” and could not
“specifically state how much” aggravation of the preexisting condition existed. On appeal, the
defendant argued, in part, that the plaintiff had not proved damages with reasonable certainty. Id.
The New Mexico Supreme Court disagreed and held that “[c]omparative testimony can be used
to establish the extent of the aggravation.” Id.
2
Although there may be an academic debate about the interplay of federal and state law in this context, the parties
do not claim that federal law should govern in this instance. The Court therefore does not address the issue further.
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In reviewing the evidence, the court drew on the following: the plaintiff could not
extend his cervical spine as before the accident; surgery was not recommended before the
accident unless the plaintiff’s pain persisted; plaintiff’s “acute pain” had disappeared before the
accident; afterward, the plaintiff’s pain became severe; surgery was undertaken to “interrupt” the
discomfort; and the plaintiff could perform his occupation before the accident, but thereafter
“pain, severe headaches[] progressively increased until he was unable to do any work.” Id. at
865. Although this evidence was insufficient to prove a permanent injury—and the court
reversed on that basis—the defendant was liable for the aggravation caused from “a decrease in
[bending] and extension of the cervical spine and an increase in the severity of neck pain which
resulted in an inability to work and which necessitated surgery.” Id.
Applying Morris here, the undisputed material facts establish, through a mix of medical
and lay testimony, the type of the proof the New Mexico Supreme Court has accepted as
sufficient. In the light most favorable to Shultzaberger, the lens through which the Court must
evaluate the record at this stage in the litigation, see Hornady, 746 F.3d at 1004, Shultzaberger
underwent neck surgery in March 2013 to alleviate pain he had experienced from years of work
as stone mason. State Farm does not cite authority, and the Court has not found any, that
Shultzaberger cannot testify to his own pain. The surgery was so successful that a second,
follow up surgery initially contemplated was deemed unnecessary and Shultzaberger returned to
work as a stone mason, pain free. Here too, Shultzaberger is a competent evidentiary source as
to his ability to work and the reason related to him that the second procedure was not necessary. 3
In other words, all was fine until MW t-boned his truck a few months later.
3
Arguably, Shultzaberger’s averment in his affidavit his previous surgeon told him a second procedure was
unnecessary is hearsay. State Farm, however, did not make this argument or move to strike the affidavit, and
whatever objection might exist at this juncture is waived. See Associated Press v. Cook, 513 F.2d 1300, 1303 (10th
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Thereafter, Shultzaberger’s pain returned, he could no longer work as stone mason, and,
ultimately, he underwent a fusion of three neck vertebrae in December 2015 for the pain, which
thereafter dissipated. As above, Shultzaberger certainly may testify as to his pain and working
habits, and Dr. Misenhimer confirmed Shultzaberger underwent the second surgery, which State
Farm does not dispute. Even assuming the average juror could not infer causation from these
facts alone, State Farm glosses over critical testimony from Dr. Misenhimer that directly and
circumstantially evidence causation: Dr. Misenhimer opined (1) that Shultzaberger had not fully
healed from the first surgery at the time of the accident; (2) the accident “undoubtedly caused
pain,” from whiplash; (3) “the mechanism of injury from a car accident certainly could have
caused the pain” for which Shultzaberger sought treatment and underwent the second surgery;
(4) whiplash can “aggravate degenerative . . . conditions”; (5) Shultzaberger’s x-ray and exam
was indicative of degenerative disc disease; (6) the degenerative process can be accelerated by
injury; and (7) the fusion procedure addresses conditions caused by natural aging or traumatic
injury. (Doc. 54, Misenhimer Dep., at 10 (Feb. 2, 2018); Misenhimer Dep. at 5, 12-13 (July 19,
2018)). It is true that Dr. Misenheimer does not specifically say the accident caused the need for
the second surgery, and a jury will certainly be able to evaluate the lack of testimony in this
regard. Under Morris, the elements of aggravation nonetheless have been demonstrated through
“comparative testimony.”
Based on the record before the Court, the evidence, including reasonable inferences
viewed in Shultzaberger’s favor, establish that Shultzaberger had preexisting, debilitating neck
pain, which was alleviated by surgery and cured at the time of the accident. The pain returned
after MW’s car t-boned Shultzaberger’s pickup, he could no longer work, and he underwent a
Cir. 1975) (holding that a party can waive admissibility objections in connection with summary judgment
affidavits).
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disc fusion with Dr. Misenheimer for the pain. According to Dr. Misenhimer, the accident could
have caused the pain and aggravated existing injuries. The second surgery was successful, and
Shultzaberger works again and is free from neck pain. Although the jury may ultimately reject
this evidence, a genuine issue of material fact precludes judgment as a matter of law on the
essential element of proximate causation.
CONCLUSION
For the reasons stated above, Shultzaberger’s testimony combined with the opinions of
Dr. Misenhimer create a genuine dispute of material fact that MW proximately caused an
aggravation of an existing condition resulting in pain and surgery to alleviate that pain.
Although the jury is not compelled to find the testimony credible, it is for the jury to consider
and not for the Court to weigh. Judgment as a matter of law is not appropriate.
IT IS, THEREFORE, ORDERED that Defendant’s motion for summary judgment is
DENIED.
____________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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