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Delcastillo v. Norris1/19/2005
Argued and submitted September 23, 2004.
Affirmed.
Plaintiff in this personal injury action appeals after a jury verdict in her favor awarding economic damages of $5,491.22 and non-economic damages of $1,500.00. Plaintiff argues, among other things, that the trial court erred in compelling a medical examination pursuant to ORCP 44 and in awarding only costs originating prior to defendant's offer of judgment. We affirm.
Plaintiff was injured in an automobile accident with defendant, for which defendant admitted liability. Plaintiff claimed "severe and permanent personal injuries" as a result of the accident, "including tearing and stretching of the muscles, ligaments and nerves of her back, hip, arms, shoulders, head and neck." Defendant denied that plaintiff suffered damages to the extent that she claimed, and a jury trial ensued on the issue of damages.
Before trial, defendant moved to compel plaintiff, pursuant to ORCP 44, to undergo a medical examination with an orthopedist and a psychiatrist. Defendant stated that a medical examination was needed because plaintiff's physical and mental condition was at issue and because plaintiff claimed that her strain injuries had not been resolved. During her deposition, taken more than 18 months after the accident, plaintiff testified that she still had pain in her left arm, shoulder, leg, and hip, as well as in her back, neck, and head. Plaintiff also testified that she suffered from dizziness, balance and memory problems, and depression as a result of the accident. Plaintiff's physician diagnosed her with "adjustment disorder with a prolonged post-traumatic component" and directed her to seek counseling. In his motion to compel a medical examination, defendant argued, "Plaintiff is claiming ongoing muscle pain and depression as a result of the accident. Plaintiff's mental and physical condition is in controversy and good cause exists for the [medical examination that] defendant seeks."
Plaintiff objected that defendant had not shown "good cause" and moved to restrict the examination. The trial court granted defendant's motion to compel the examination, finding that "a controversy exists regarding plaintiff's physical and mental condition" and "that plaintiff has ongoing physical and mental complaints." The court stated, "As a matter of law, plaintiff's ongoing condition constitutes sufficient just cause for a compelled medical examination under ORCP 44." Plaintiff unsuccessfully petitioned the Supreme Court for an alternative writ of mandamus challenging the action of the trial court. Plaintiff underwent the medical examination, and the orthopedist ultimately testified for the defense at trial.
Before trial, defendant filed an ORCP 54 E offer of judgment in the amount of $8,950, inclusive of Personal Injury Protection (PIP) benefits, costs, and disbursements. Plaintiff rejected the offer. Because the entire judgment would have gone to reimburse plaintiff's PIP lien pursuant to ORS 742.536, plaintiff personally would have retained nothing from the offer of judgment.
After a three-day trial, the jury returned a verdict in favor of plaintiff awarding $6,991.22: $5,491.22 in economic damages and $1,500.00 in non-economic damages. That resulted in an in-pocket recovery for plaintiff of $1,500.00 because only the $5,491.22 in economic damages went toward reimbursing plaintiff's PIP lien. The trial court awarded plaintiff costs of $197, which did not include costs incurred after the date of defendant's ORCP 54 E offer, because plaintiff failed to obtain "a more favorable judgment" at trial than she would have received if she had accepted defendant's offer. ORCP 54 E provides:
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