Articles Posted in Car Accidents

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

The Award of Damages was Not Excessive

Plaintiff’s medical bills totaled $24,194.89. In her motion for a new trial, defendant does not contend those expenses were unreasonably incurred.

Although Dr. W. testified that, in his opinion, there was no reason why plaintiff was unable to work for the time she claimed to have been off work as a result of this accident, plaintiff presented extensive and essentially uncontroverted expert testimony that both explained and justified her absence from work and her future economic and non-economic damages.

Dr. Y., who had evaluated the plaintiff a week prior to the trial, concluded that plaintiff’s condition had deteriorated since her last therapy treatment, that she needed therapy to strengthen her muscle and tissues around her neck, and that she would require careful monitoring and therapy for the remainder of her life. More specifically, she testified that it was reasonably certain that, during the next 3 to 6 months, plaintiff would require three to four osteopathic treatments a month at a cost of $1,920.

Dr. Y. projected that for the following 3 months, plaintiff would require two treatments per month at a monthly cost of $960.00 for a total of $2,880.00. She would also need physical therapy four times per month for 1.5 months, at $120.00 per visit, and then two times per month for a total cost of $3,960.00.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

There Was Ample Evidence that Plaintiff was Seriously Injured in the Accident

Plaintiff presented as a woman who had no problems with her neck prior to being struck from behind by defendant. Both treating physicians, Dr. X. and Dr. Y. testified that the accident caused the injury to plaintiff’s neck, a disc bulge in her C5 region. Dr. Z., a board certified neurologist, testified that plaintiff’s injury was consistent with having been caused by a rear end accident. Not surprisingly, the defense produced an expert, Dr. W., who disputed those findings. Like a murder defendant who tells the jury that he didn’t do it but if he did, it was in self-defense,

Dr. W. opined that plaintiff was not hurt in the accident, but if she was, it was minor. His credibility was quickly undermined, however, when he initially testified that plaintiff’s post-accident ability to swim and snorkel at the time of the IME was evidence that she was not injured and then was later forced to concede that she had really quit swimming (although recommended by her treating doctor) a year earlier prior to the IME because of a severe allergic reaction to plaintiff’s eye from the chlorine in the pool.

The jury heard both plaintiff’s treating physicians and board certified neurologist testify and they heard Dr. W.’s testimony and found plaintiff’s witnesses to be more persuasive. In her motion, defendant presents no reasoned analysis of any deficiencies in the testimony of plaintiff’s witnesses.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

It is noteworthy that the defendant did not produce any eye witnesses to dispute Ms. Diaz’s observations. The best that the defendant could say was that she wasn’t sure if she braked and that she didn’t remember hearing the screeching of tires that typically accompanies sudden braking. Not surprisingly, there was no evidence that the were any skid marks left by the defendant’s tires.

Simply because no ambulance was called to the scene and Ms. Hayes drove herself home does not establish, as defendant seems to think it does, that this was a minor accident. It is not an uncommon event for several hours or more to pass before pain from the accident caused injury manifests itself. Moreover, in her motion defendant neglects to mention that her car was totaled, with more than $9,600.00 in damages. The force of the impact was so great that plaintiff’s solid steel trailer hitch, which was bolted to the frame of the van, was cracked and pushed into the rear of the van sealing the rear door shut.

Defendant asserts that Dr. Kelkar’s unrebutted biomechanical accident reconstruction testimony established that plaintiff could not have been injured as she claimed. No trier of fact is required to accept expert testimony as gospel, even if unrebutted. (In re Marriage of Duncan (2001) 90 Cal. App. 4th 617.) [A]s a general rule, provided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.] [Citation.] This rule is applied equally to expert witnesses. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 890.)

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident case and its proceedings.)

Plaintiff’s Opposition to Defendant’s Motion for a New Trial
The Court Should Not Grant a New Trial Because the Jury’s Verdict is Amply Supported by the Evidence
Motion for a New Trial Should Not be Granted Unless the Court is Convinced that the Jury Clearly Should Have Reached a Different Verdict

Code of Civil Procedure §657 provides, in pertinent part, that a trial court should not grant a motion for a new trial on the grounds of insufficiency of the evidence, “unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the… jury clearly should have reached a different verdict or decision.” In other words, while a trial court has wide discretion in ruling on a motion for a new trial, the use of the word clearly in §657 makes it evident that such a motion should not be granted unless the trial court is firmly convinced that the jury got it wrong. Simply put, there is no basis for such a finding in this case.

This was No Minor Accident
Citing her own motion, defendant complains that the jury verdict should be set aside because this was a minor accident, making it seem like a fender bender. Not so. Defendant seems to have forgotten, or at least forgotten to discuss, that there was an independent witness, Ms. Vilma Diaz, who had no prior relationship with either party, who witnessed the entire automobile accident unfold in front of her.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

LEGAL ISSUES cont.

The defendant, if he was negligent, is solely responsible for the initial injury; liability for the defendant’s enhanced or aggravated injury is properly apportioned between the plaintiff the defendant and subsequent healthcare providers in accordance with the rules of comparative fault and Civil Code § 1431.2.

A second legal issue is evidence of the financial interest of the plaintiff’s expert witnesses, including their fee arrangements with plaintiff’s counsel. The defendant will provide evidence of financial ties between plaintiff’s physicians and attorney to demonstrate an ongoing business relationship between plaintiff’s physicians and attorney.

A witness may be examined on the issue of possible bias, which includes a financial interest in the case. (See: People v. Mickle (1991)54 Cal.3d 140, 168; People v. Munoz(1984) 157 Cal.App. 3d 999, 1010.) Evidence Code § 780(f) allows for the interrogation or questioning of a witness to determine the credibility of a witness, including the existence or nonexistence of a bias, interest or motive. Whether a treating doctor has a lien in the matter is indicative not only of his pecuniary interest in the case but goes to the issue of credibility and bias and the jury is entitled to know of such financial interest. If the plaintiff loses, the doctor does not get paid.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

LIABILITY
Paul Austin does not concede liability, and at trial he will provide evidence in support of all available affirmative defenses. California is a comparative negligence state and Ms. Smith had a duty to take reasonable care to prevent harm to herself. This is especially true on what was a day of heavy rain and where the intersection lights were not operating at a major intersection. Ms. Smith was in a comfortable zone just three blocks from her residence. Whether Ms. Smith was appropriately attentive to the road conditions is for a trier of fact to determine. Mr. Austin contends he is liable only for a reasonable comparative portion of the damages reasonably caused by the accident.
LEGAL ISSUES

The primary legal issue in this matter is that plaintiff’s injury did not result in the need for surgery. The defendant will present evidence that surgery was unnecessary and the surgical procedures that were performed were below the applicable standard of care. Therefore, any medical conditions caused by plaintiff’s surgeries were not proximately caused by the accident.

This case involves distinct and divisible injuries. Plaintiff suffered a soft tissue injury that would have healed with conservative treatment. Instead, she sought treatment with Dr. John Lee, a neurosurgeon, whose negligent subsequent medical care served only to aggravate the plaintiff’s symptoms. As a subsequent tortfeasor, and because California is a comparative negligence state, Dr. Lee, as with any other subsequently treating negligent healthcare provider, is liable to the plaintiff for the enhanced injuries that he has caused. (See: Henry v. Superior Court (2008) 160 Cal.App.4th 440.) As such, if he is liable, the defendant is entitled to a determination by the trier of fact to an apportionment of any liability. (Id.; Civil Code § 1431.2.) CACI Jury Instruction 406 reads in pertinent part:

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

STATEMENT OF FACTS cont.

Dr. Lee then, on November 17, 2007, performed his experimental provocative
cervical discogram C5-6 and microdecompressive cervical discectomy C5-6 pronouncing
it a success. He then proceeded – is the very same surgery – to perform a provocative
lumbar discogram and microdecompression lumbar discectomy of L5-S 1 under magnification. It absolutely contradicts accepted medical protocol to perform both a cervical discectomy
and a lumbar discectomy at the same time. The impact on the human body is considered to
be too traumatic. Proper and accepted medical procedure would be to perform the
cervical procedure first because the neck has a tendency to heal more quickly. Then,
only if appropriate, perform a lumbar discectomy no sooner than at least one month after

the cervical surgery – at the earliest.

One obvious drawback of Dr. Lee’s style is that he nicked a nerve during Ms. Smith’s experimental lumbar surgery that not only caused her to have a spinal migraine that caused her to return three days later for a blood patch to remedy her unnecessary pain, but also Ms. Smith left treatment with Dr. Lee with severe pain radiating into her left leg that never before had existed. Not only was Dr. Lee’s surgery poorly diagnosed, unnecessary and unrelated to the accident, but it also caused Ms. Smith a later second lumbar surgery by another neurosurgeon to redo the discectomy by Dr. Lee.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

STATEMENT OF FACTS cont.

A cervical MRI was conducted on August 4, 2007, by Tower Imaging
Center which showed that her cervical spine was normal except for a combination of
spurring and a 2 mm left paracentral disc protrusion slightly indenting the anterior cord
and causing mild left-sided canal narrowing at C5-6. There was no neural foraminal
narrowing. At C6-7, the MRI showed mild degenerative disc disease with a small posterior

spur with mild spinal stenosis. There was no neural foraminal narrowing.

On that same date, the Tower Imaging Center also performed an MRI of
Ms. Smith’s lumbar spine which showed no disc protrusion or extrusion, spinal stenosis,
or neural foraminal narrowing at any lumber spine level. There was a mild disc dessication

at L5-SI.

On August 8, 2007, Dr. Davies prescribed a course of pain management. Ms. Smith
was referred to Peter Day, M.D. at the Interval Pain Management Group. After
evaluation, Ms. Smith was treated with a cervical epidural steroid injection on September
15, 2007 and another on October 13, 2007. After both treatments, she reported temporary
relief. On September 5, 2007, she presented to Jerry James, P.A. at Conservative
Care Medical Group. Ms. Smith also began the extended use of Skelaxin, Celebrex and Tramadol that, with the addition of other prescribed medications, continues until today. Ms.
Smith’s accident-related injuries were healing and would have healed under the
conservative treatment she was receiving.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)

The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

DEFENDANT’S TRIAL BRIEF
STATEMENT OF FACTS
This action arises from an automobile versus SUV accident. On January 2, 2007, Melissa
Smith was traveling eastbound on Arden in her SUV. Paul Austin was
traveling northbound on Eastern in his passenger car. There was a heavy rain and
the traffic-control lights at the intersection were not working. Temporary four-way stop
signs had not been deployed. Ms. Smith proceeded to enter the intersection. Mr. Austin
was northbound on Eastern traveling at approximately 25 mph. He saw no traffic and
continued to proceed into the intersection. Neither driver saw the other vehicle until
immediately before impact. Despite braking, Mr. Austin’s car struck the plaintiff’s SUV

in the passenger-side doors approximately in the middle of the vehicle.

Ms. Smith immediately jumped out of her vehicle and began yelling at Mr. Austin.
Neither party received a citation. Neither party received emergency medical treatment. Ms.
Smith proceeded to drive her vehicle to her nearby residence approximately three blocks
away. Two days later Ms. Smith presented to David Stein, D.C. for evaluation and
chiropractic treatment for seven months.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of this car accident case and its proceedings.)

DAMAGES

Plaintiff claims to have sustained a head laceration requiring several stitches and an injury to his right AC shoulder joint for which he claims he underwent surgery almost two years post-accident on August 8, 2007. Plaintiff has incurred the following medical specials:

– Sacramento Orthopedics & Medical Group $10,985.00
– Roseville Center for Arthroscopic and
Outpatient Surgery $15,120.67
– Roseville Orthopedic Medical Group $1,040.00
– Roseville Fidelity Medical Group $4,405.00
– Roseville Fidelity Medical Group $9.00
– Central Diagnostic Imaging $2,200.00

Based on the foregoing, plaintiff has incurred $33,759.67 in medical specials.

Also, plaintiff claims his bicycle was totaled after the accident. In response to written discovery, he stated he purchased the bicycle for $130.00, however, at deposition he stated he paid $80.00 or $90.00 for the bike. He also claims he missed four days of work and lost $865.00 in earnings.

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