Assume a normal personal injury case. Plaintiff discloses medical experts, the defendant affirmatively forgoes medical experts. Can the plaintiff obtain summary judgment on damages? No, at least in Nevada.
“In actions for damages in which the law provides no legal rule of measurement it is the special province of the jury to determine the amount that ought to be allowed….” Forrester v. Southern Pac. Co., 36 Nev. 247, 295, 134 P. 753, 768 (1913); Southern Pac. Co. v. Watkins, 83 Nev. 471, 495, 435 P.2d 498, 513 (1967). “The extent of such damage, by its very nature, falls peculiarly within the province of the trier of fact, in this case a jury.” 83 Nev. at 497, 435 P.2d at 514. The Nevada pattern jury instructions recognize that only a fact finder may determine the damages a personal injury plaintiff has sustained.
In determining the amount of losses, if any, suffered by the plaintiff as a proximate result of the accident in question, you will take into consideration the nature, extent and duration of the damage you believe from the evidence plaintiff has sustained, and you will decide upon a sum of money sufficient to reasonably and fairly compensate plaintiff for the following items:
1. The reasonable medical expenses plaintiff has necessarily incurred as a result of the accident; and
2. The physical and mental pain, suffering, anguish and disability endured by the plaintiff from the date of the accident to until his death;
Instruction 5PID.1 (2011).
Whether any of these elements of damage have been proven by the evidence is for you to determine. Neither sympathy nor speculation is a proper basis for determining damages. However, absolute certainty as to the damages is not required. It is only required that plaintiff prove each item of damage by a preponderance of the evidence.
Instruction 5PID.9 (2011).
Despite this, plaintiffs occasionally argue the opposite, apparently without reading Quintero v. McDonald, 116 Nev. 1181, 14 P.3d 522 (2000). It concerned a minor car accident. At trial the jury apportioned fault between the two defendants but awarded no damages. Plaintiff’s motion for new trial was denied and appealed. On appeal the Plaintiff argued the jury’s verdict was erroneous. She “relies on a stipulation to the admission into evidence of her medical bills, that [defendant] failed to procure the testimony of an expert, and that her evidence of damages was uncontroverted. We disagree and conclude that the jury’s verdict is supported by substantial evidence.” Id. at 1184, 14 P.3d at 523.
As noted, Quintero presented evidence that she incurred $ 1,885.00 in medical expenses. However, she offered no conclusive evidence of the reasonableness of the expenses or the necessity of the treatment. Although [defendant] did not present expert testimony challenging causation, testimony elicited from Quintero’s witnesses on cross-examination controverted Quintero’s claim as to the extent of her injuries. Further, cross-examination of Quintero’s evidence revealed that Quintero suffered from a pre-existing back injury, which could have caused her symptoms.
The credibility of witnesses and the weight to be given their testimony is within the sole province of the trier of fact. See McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). We conclude that a reasonable jury could have disbelieved Quintero’s testimony concerning her alleged pain and suffering and, thus, could have reasonably inferred that she was not injured as a proximate result of the accident. This is particularly true given the confirmed lapses in medical treatment following the accident and evidence of her post-accident activities, including child-care, cleaning, and swimming. Finally, even though the defense either stipulated to or did not controvert her damage evidence with independent witnesses, the jury was not bound to assign any particular probative value to any evidence presented.
Id. at 1184, 14 P.3d at 523-24. The jury’s award of no damages was affirmed.
In short, it is plaintiff’s burden of proof to present the evidence necessary to prove his damages case. The opposing parties are permitted to contest the sufficiency of this evidence and cross-examine the witnesses.