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Burger v. Clifford Galey and Excel Contractors, Inc.

United States District Court, D. Nevada

July 31, 2014



ANDREW P. GORDON, District Judge.

Defendants Clifford Galey and Excel Contractors, Inc. have moved for Partial Summary Judgment on Plaintiff's claims for loss of income, loss of future income, and diminished earning capacity. (Doc. # 44.) Because genuine issues of material fact surround Plaintiff's claims for damages, I hereby deny Defendants' motion.


On November 2, 2010, plaintiff Joshua Burger was injured in a car accident caused by Galey. (Compl. (Doc. # 1) at 3; Defs.' Mot. for Partial Summ. J. ("MPSJ"), Ex. F. (Dkt. 44-6) at 1.) At the time of the accident, Galey was acting in the scope of his employment for defendant Excel. (Doc. # 1 at 3.) Burger filed suit in state court alleging common law and statutory negligence by Defendants, and Defendants removed the case to this Court. Burger seeks damages for medical expenses, pain and suffering, past and future loss of income, and property damages sustained as a result of Defendants' alleged negligence. Defendants concede liability, so the only issue for trial is the amount Burger may recover for damages. (Doc. # 45 at 14.)

Burger worked for Cashman Equipment at the time of the accident. ( Id. at 45 ("Burger Dep." at 153:7-19).) After the accident, Burger was unable to return to work at Cashman and was ultimately let go from his position in January 2011. ( Id. at 153:7-19, 154:25-155:3.)

In April 2011, Burger began employment at Skanska, a mining and pit expansion business. ( Id. at 61:14-62:3.) His work at Skanska was less physically demanding than his work at Cashman. (Id. at 62:22-23, 64:21-25.) In January 2012, Burger left Skanska and began working at Mercator Minerals in Kingman, Arizona, in a position that required him to lift heavy equipment. ( Id. at 64:8-9, 67:3-68:10, 148:5-9.) He received good reviews throughout his employment at Mercator Minerals. ( Id. at 163:15-22.)

Burger left Mercator Minerals and returned to work at Cashman Equipment, where he currently works as a heavy equipment mechanic. ( Id. at 9:21-10:5, 76:1-11.) Burger's duties include lifting parts and equipment weighing in excess of 100 pounds, and he describes his current work for Cashman as more physically demanding than his work at Mercator Minerals. ( Id. at 36:14-18, 148:12-21.) Burger currently is able to meet the requirements of his job. ( Id. at 163:2-8.) He believes that his supervisors would provide a praiseworthy assessment of his job performance and that he could have his current job for as long as he so desires. ( Id. at 76:12-15; 163:2-18.)

Burger contends that he is still suffering pain from the accident; he continues to work through his pain, but the pain is worsening. ( Id. at 191:9-193:11, 195:23-196:3.) He has not disclosed his physical limitations to his supervisors because he needs to keep working. ( Id. at 162:12-163:13, 182:4-6.) He plans to undergo lumbar fusion surgery, but cannot currently do so for financial reasons. ( Id. at 15:7-13, 16:24-17:12, 21:22-22:3.) He also is concerned about losing his mobility at a young age. ( Id. at 17:13-21.)

Burger retained two medical experts, who have opined about the injuries he sustained in the accident. ( See generally Doc. # 45 at Ex. 3 ("Cash Dep.") and Ex. 4 ("Selznick Dep.").) Dr. Andrew Cash, one of Plaintiff's treating physicians, recommends that Burger undergo reconstructive fusion surgery at L3-4 to correct a disc desiccation in his lumbar spine. (Doc. # 47-1.) Dr. Cash testified at his deposition that Burger is holding off on surgery for as long as he can tolerate his pain. (Cash Dep. (Doc. # 45, Ex. 3) at 13:4-7, 55:19-24.) Based on prior experience, Dr. Cash anticipates Burger will undergo surgery within three years due to worsening pain. ( Id. at 58:1-9.) Dr. Cash states that Burger will be unable to perform his current job for a period of six months after a successful surgery. (Doc. # 47-1.) Neither Dr. Cash nor any other treating physician has placed Burger on a formal work restriction. (Cash Dep. at 16:12-25; Burger Dep. at 68:23-69:9, 150:4-151:12.)

Dr. Hugh Selznick, a non-treating orthopedic expert retained by Burger, agrees there is an objective orthopedic basis for Burger to undergo lumbar surgery. (Selznick Dep. (Doc. # 45, Ex. 4) at 49:10-13.) Dr. Selznick testified at deposition that Burger suffered a left shoulder separation. ( Id. at 31:11-15.) Dr. Selznick believes Burger will suffer post-traumatic arthritis in his injured shoulder. ( Id. at 32:10-23, 33:7-16.) According to Dr. Selznick, Burger may have to undergo minor surgery on his shoulder to remedy this problem. ( Id. at 35:1-8.) Dr. Selznick is aware that Burger is currently holding off on lumbar surgery until he can no longer tolerate his pain, and states that this is typical for spine fusion candidates. ( Id. at 49:17-50:3.) In contrast, Defendants' medical expert, Dr. Derek Duke, does not believe Burger requires surgery to treat the injuries he sustained in the accident. (IME of Dr. Duke (Doc. # 44-6) at 7.)

Burger also retained two experts regarding possible future lost earnings. ( See generally Doc. # 45 at Ex. 6 ("Kostelac Dep."); Doc. # 45 at Ex. 7 ("Carroll Dep.").) Jeni Kostelac, a vocational rehabilitation expert, prepared a rehabilitation plan for Burger based upon Dr. Cash's surgical recommendation. (Kostelac Dep. at 42:3-20.) The plan assumes Burger will have to change careers at some point in the future, whether or not he has surgery. ( Id. at 48:21-49:22.) Kostelac has not reviewed any medical evidence that would suggest that Burger would have to change careers if he did not have surgery. ( Id. at 49:23-50:5.)

According to Kostelac, if Burger undergoes successful lumbar surgery and is able to return to his job, Burger would incur six months' lost wages and six months' loss of work life expectancy. ( Id. at 79:1-5, 80:5-19.) Kostelac believes Burger will have no wage loss if he continues to be functional at work and is not placed under any restrictions by his doctors. ( Id. at 79:25-80:4.) Kostelac further believes that if Burger changes careers while under no restrictions from his doctors, she would not classify that as a wage loss. ( Id. at 60:18-25.)

Burger's economic expert, Dr. Thomas Carroll, estimated Burger's future earning capacity under four possible scenarios: (1) Burger is not disabled and will be able to function at his current level indefinitely; (2) Burger will be unable to function and will require surgery, which will allow him to resume his career after a brief recuperation; (3) the surgery is not successful and Burger must return to school, after which he will be able to function as an able-bodied worker in a less stressful occupation; or (4) Burger's surgery is not successful and he will remain permanently and partially disabled. (Doc. # 44-5.) Under the first scenario, Burger ...

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