Are There Differences in Subjective Versus Objective Injuries in Las Vegas Trials?

This month’s blog is a follow up to our previous discussion of the Behr case, on what damages can be awarded to an injured party at trial. As readers may recall from last month’s blog post, the Behr case dealt with an alleged brain injury following a car accident. See the unpublished opinion from the Nevada Court of Appeals. Behr v. Diamond, No. 66612 (Nev. App., 2015).  

The Behr court determined that a claim for future pain and suffering on subjective injuries must be supported by expert testimony. Expert testimony is needed to establish that "[F]uture 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). 

A subjective disability was defined as one that was not visible to others. Common examples of subjective injuries were: headaches and low-back pain, as well as mental worry and distress. See Gutierrez v. Sutton Vending Serv., Inc., 80 Nev. 562, 566, 397 P.2d 3, 4-5 (1964) and Sierra Pac. Power Co. v. Anderson, 77 Nev. 68, 75, 358 P.2d 892, 896 (1961). 

By contrast, objective injuries included shoulder injuries that caused an observable limited range of motion or broken bones. Krause Inc. v. Little, 117 Nev. 929, 938, 34 P.3d 566, 572 (2001). The court held that objective injuries do not require expert testimony because "the extent to which a broken bone causes pain and suffering is common knowledge." Id.

In Behr, the court awarded future pain and suffering for the injured person’s post-concussion syndrome and headaches. The trial court explained, "I believe that Heather's pain and suffering in the past and in the future is related to post-concussion syndrome. And it's real, and headaches can be very debilitating and are worthy of compensation just as—just as if there were a broken bone." 

The appellate court struck down the trial court’s ruling, since headaches and shoulder pain are subjective injuries and require expert testimony to establish whether pain and suffering will continue into the future. See Sierra Pac. Power Co., 77 Nev. at 75, 358 P.2d at 896. 

Generally speaking, a shoulder injury that reduces one's range of arm motion is an objective injury and thus, a plaintiff's testimony alone can support an award of future damages. See Krause Inc., 117 Nev. at 938, 34 P.3d at 572. Here, however, the injured party said she no longer experienced problems with her shoulder and that she could "throw a softball" and "pick up a bale of hay" with no problem. 

The Behr court also struck down the award for future pain and suffering for post-concussion syndrome and headaches. According to the experts who testified at trial, the symptoms of post-concussion syndrome were nausea, vomiting, memory problems, fatigue, personality changes, headaches, dizziness, depression, anxiety and insomnia. Because the court could not readily observe these injuries, expert testimony was needed to establish future pain and suffering. See Gutierrez, 80 Nev., at 566, 397 P.2d at 4-5.

The Behr case is interesting in that the Nevada appellate court made a distinction not only between past and future damages, but also subjective versus objective injuries. Next time, we will talk about how bankruptcy affect personal injuries settlements.