Articles Posted in Real Cases

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

Since the attack, Ms. Rich tried to return to work approximately one week post-incident and has tried to work intermittently since the incident, but has been unable to return to her full duties over the past 12 months because of her back and leg pain. She continues to receive significant medical care. Dr. Shortley stated the following about her past and future employment:

“Ms. Rich was working long hours prior to the dog attack March 17, 2006… Because of the persistence of her pain and neurologic loss in spite of reducing her workload it is probable that Ms. Rich will not be able to return to the work schedule he enjoyed before the dog attack. Therefore it is probable that he will not be able to work the number of hours and will have wage loss that will be ongoing into the future.”

Dr. Shortley’s report is referenced herein.

On average, Ms. Rich earned $6,437.40 per month before the attack at her home office law practice. After the dog attack she earned $5,450.27. Therefore, she had a $987.13 loss per month. Financial records are referenced herein.

By March 30, 2006, Ms. Rich earned $26,640.34 ($8,880.11 average per month) from her local office practice before the attack, and by May 2006 her year-to-date income was only $35,910.34. She only earned $9,270.00 in April and May, or $4,635.00 per month after the attack. Therefore, she has earned approximately $4,245.11, less per month from this portion of her practice. Those financial records are referenced herein.

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

2. Olivia Stark further testified about all the incidents caused by defendant JONES:
“Q. After Bobbi slammed on the brakes the first time, did you overhear any kind of complaints about her driving?
A. By the end of the trip, people were starting to wonder.
Q. Can you tell me what people were saying?
A. They were talking about the number of incidents we had this trip, and calling
it ‘the bus trip from hell.’
Q. And the incidents that you refer to are the two times she slammed on the
brakes, and the other time when she – –
A. The windows.
Q. – – the windows?
A. Yes.
Q. Anything else?
MR. COLLINS: She testified to the bus trip delay because the driver left the lights on.
Q. BY MS. LI: Other than the lights, the windows, and the two braking incidents, was there anything unusual about the trip that stood out?
A. That was enough.”
(Depo. of Olivia Stark, pp.28:22-29:18)

Mr. Stark, an experienced bus driver, testified that defendant JONES was not focused as a bus driver on this trip.

“Q. And in fact, you rode with her the first year, and she drove like an experienced bus driver?
A. Yes.
Q. This year, when Nanacy got hurt, she wasn’t driving as well as she drove before, true?
A. True.

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

At the time Ms. Rich was examined by Dr. Shortley, it was Dr. Shortley’s opinion that surgery was “almost a medical certainty.” However, since that appointment Ms. Rich was examined by Praveen Mummaneni, M.D. with the Department of Neurological Surgery at UCSF. Dr. Mummaneni is recommending surgery. In his report it states:

“Assessment and Planning: The patient, who is a pleasant, 55-year-old right-handed woman presented to my office today at the UCSF Spine Center with complaints of postoperative low back pain radiating down her left leg. Her leg pain supersedes her back pain, and review of her postoperative lumbar MRI with and without contrast, as well as her lumbar CT with post-myelogram CT revealed a recurrent left L4-5 nucleus pulposus. Postoperatively the patient has failed conservative therapy in the form of formal physical therapy with injections. In accordance with the patient’s wishes, she wishes to undergo a reoperative left L4-5 diskectomy. I have gone over the indications, risks, benefits, and alternatives including death, and I have recommended that we obtain a new MRI with and without contrast prior to scheduling surgery. Once this is obtained, we will proceed with a reoperative left L4-5 microendoscopic diskectomy. In the interim, I have instructed her to notify me immediately should any problems arise beforehand that warrant my attention.

Dr. Mummaneni’s records are referenced herein.

Ms. Rich has a pre-surgery consult and MRIs at UCSF on March 11, 2007. Dr. Shortley in his previously quoted report estimates the cost of future surgery to be $125,000.00. Plaintiff will miss additional time from work.

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

On October 19, 2006, Tim Stark and Olivia Stark were deposed. Their condensed depositions are referenced herein. Mr. and Mrs. Stark were passengers on the bus trip. Mr. Stark is a licensed, experienced bus driver, and he was seated directly behind defendant JONES when the incident occurred. Mr. and Mrs. STARK testified that JONES slammed on the brakes too hard, causing NANCY to fall:
Q. And you’re a bus driver?
A. I’ve been one, yes.
Q. You’re qualified to drive a bus?
A. Yes.

(Depo. of Tim Stark, pp.35:25-36:3)

“A. That would be when a car pulled in front of us, and Bobbi slammed on the brakes and Nancy fell.”
(Depo. of Olivia Stark, pp. 15: 12-13)
“A. In other words, I’ve been driving for years. The front of the bus dipped down fairly severely because he braked so hard.”

(Depo. of Tim Stark, pp. 24:14-16)

“Q. And so you’re sitting right behind the driver that morning, and you see this whole thing unfold ahead of you, and see Bobbi slam the brakes, right?
A. Yes.
Q. She could have lightly put on the brakes, and the car would have passed in front of the bus without incident?
A. Yes.”
(Depo. of Tim Stark, pp. 36:18-37:3)

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

Comparing the two lumbar MRI reports we see the difference. Following the attack by the dog Franz in 2006 the MRI records:

“A small amount of extruded disc material into the axillary portion of the canal on the left at this level, impinging on the left L5 root at its origin.”

This finding was not present in the earlier MRI.

This finding was also confirmed by Dr. Hambly in his operative report dated April 12, 2006, Dr. Hambly stated:

“Kerrie Rich is a 55-year-old attorney with a large disc herniation on the left at L4-5…there is a large high intensity zone within the substance of the L5-S1 disc.”
IV. FUTURE MEDICAL

As stated previously, Ms. Rich is still treating with Roseville Physical Therapy and with Richard Harty, P.T. Richard Harty’s March physical therapy will cost $360.00. Roseville Physical Therapy costs approximately $120.00 per visit; she is scheduled for approximately five more weeks with at least two visits per week. Therefore, the cost will be at least $1,200.00.

On January 31, 2007, Ms. Rich was examined by orthopedic surgeon, Howard Shortley, M.D. In his report Dr. Shortley discussed in part Ms. Rich’s condition and future medical:

“It is unlikely that Ms. Rich will improve in the future. Given her current age of 55 years, she is likely to grow worse over time. Because of this it is possible that she will require further back surgery.

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

V. ECONOMIC DAMAGES
Past Medical:
Meridian Resource Company $ 386,407.13
Trauma Medical Group of Roseville $ 7,017.96
Patient Copays:
Sutter Auburn Home Health $ 137.88
Sutter Auburn Faith Hospital $ 167.55
Central Anesthesia Medical Group, Inc. $ 401.70
Roseville Cardiology $ 329.22
Radiological Associates of Sacramento $ 273.46
Sutter Roseville Medical Center $ 4,236.80
Sutter Emergency Medical Association $ 71.01
CA Emergency Physicians of Roseville $ 62.33
Diagnostic Pathology $ 39.88
Total Copays $ 5,719.83
Travel expenses $ 881.00
Total Past Medical $ 400,025.92
Total Conservative Future Medical $ 146,658.49
TOTAL MEDICAL DAMAGES $ 546,684.41
VI. CURRENT CONDITION

Currently, NANCY is a fraction of the woman that she was prior to the bus accident. Prior the bus trip, NANCY would wake up each day at 5:00 a.m. and put in 10-12 hours of work on her farm. She had no lung, kidney, or heart problems. She had run her farm since 1969. Her daily duties on the farm included, but were not limited to, the following:

1. Fixing fences
2. Cutting wood
3. Irrigation repair and clean out
4. Mowing
5. Fertilizing
6. Planting trees and crops
7. Unloading plant material
8. Tending to their farm animals
Today, NANCY can only perform about 15 – 20 percent of her prior responsibilities on her farm. She will start a task and quickly become out of breath, tired, and weak, causing her to rest and not finish the job. For instance, when she tries to plant trees or work on the farm’s irrigation systems, she is quickly forced to rest and try to regain her strength. Most days she is unable to continue. She has lost her vigor, vitality, and stamina to work. She is up many nights coughing and not sleeping. She cannot enjoy the scuba dives or bicycle trips she used to go on because she cannot climb the cliffs for the dives, and she cannot load and unload her bicycles and gear for her trips.

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

Post-operatively, Ms. Rich has not done well. She has continued to have left foot drop, right and left foot pain, weakness, and numbness. She has taken numerous medications to control her pain level. She had a lumbar MRI on June 4, 2006. She had a lumbar myelogram and lumbar CT on June 19, 2006. The lumbar CT showed the following impression:

“Status post left laminectomy defect at L4-L5. Small area of protrusion of the disks at the L4-L5 level on the left which appears to compromise the left L5 nerve root. This may represent a disk fragment extending posterior and inferior at the L4-L5 level on the left.”

A copy of the CT and myelogram are referenced herein.

Ms. Rich has undergone a series of treatments both before and after her surgery. Jeff Jones, M.D., has performed the following procedures on Ms. Rich:

April 3, 2006 “Epidural steroid injection.”
May 3, 2006 “Epidural steroid injection.”
November 2006 “transforaminal epidural steroid injection at theL5 neuroforamen of the left…a selective nerve root block”
December 20, 2006 “pulsed radiofrequency lesioning of the dorsal root ganglion and the L5 nerve on the left.”
January 17, 2007 “L2 left sympathetic block.”
January 23, 2007 “L2 lumbar sympathetic block on the left.”

Dr. Jones’ records are referenced herein.

Plaintiff treated with Roseville Physical Therapy. She was treated for over 50 visits with a reduced charge in 2006. As of 2007, Ms. Rich has been charged full price for her treatment. She is continuing treatment two to three times per week. Those records are referenced herein.

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

III. INJURIES

After the incident, plaintiff had immediate onset of right side pain. The morning after her return from the trip, she saw Gary Bell, D.C. for her right side pain. Dr. Bell took x-rays on May 13, 2006. The film revealed two rib fractures. The doctor sent NANCY home to recover.

While shopping on May 27, NANCY became very weak. She was taken home where she collapsed. Her husband immediately drove her to her doctor’s office where she saw Jerry Boeye, M.D. The doctor suspected a possible right side hemathorax. NANCY was rushed by ambulance to Auburn Roseville Medical Center.

Upon arrival at Auburn Roseville Medical Center, NANCY was admitted to the trauma-neuro ICU. During her inpatient stay at Auburn, NANCY underwent a medical ordeal. She had numerous operative procedures. The operative procedures included the following:
5/30/06 Exhibit 3 Thoracoscopy and evacuation of retained hemothorax, left.
6/4/06 Exhibit 4 (1) Video-assisted thoracoscopy with biopsy. CPT Code
32601. (2) Bronchoscopy with therapeutic aspiration.
CPT Code 31645. (3) Thoracotomy with biopsy. CPT
Code 32100. (4) Removal of intra-pleural foreign body.
CPT Code 32150. (5) Partial lung decortications. CPT
Code 32225.
6/4/06 Exhibit 5 Fiberoptic bronchoscopy with therapeutic aspiration.
6/5/06 Exhibit 6 Esophagogastroduodenoscopy with jejunostomy tube.
6/5/06 Exhibit 7 Fiberoptic bronchoscopy with therapeutic aspiration and
bronchial washings.
6/7/06 Exhibit 8 Fiberoptic bronchoscopy with therapeutic aspiration and
bronchioalveolar lavage.
6/9/06 Exhibit 9 Cardioversion.
6/10/06 Exhibit 10 Opening of surgical wound, drainage of pus, debridement
of edges.
6/10/06 Exhibit 11 Tracheostomy using #7 Bivona.
6/10/06 Exhibit 12 Esophagogastroduodenoscopy with J-tube.

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

In addition, on the same day that Ms. Rich was attacked by Franz, the dog was found to be loose and the dog charged animal control as well. The Animal Control Report by J. Crickenberger stated in part:

“Observed female black lab with purple collar. No ID. Loose at C/A. Dog ran to front porch area. I attempted to contact at door, no response. Female black lab with purple collar showed A-Type behavior by charging at me. I had to use snare to capture dog safely.”
Despite defendant’s acknowledgement and awareness of his dog’s vicious nature, and history of charging and attacking people, Paul Stevens failed to confine his dog. He allowed his dog to run free and attack Ms. Rich.

A copy of the Vicious Dog Notification and Animal Control Reports are referenced herein.

IV. INJURIES

Immediately after the incident, Ms. Rich had severe low back pain. She took Motrin and Flexeril for the pain hoping she would get better. When she grew worse with left side radiating pain she went to the emergency room where she was given pain medication, referred to follow up with orthopedics, including an MRI. Records are referenced herein.

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

Plaintiff, NANCY KLEIN, hereby submits the following Mediation Brief.

I. BACKGROUND

At the time of the incident, plaintiff, NANCY KLEIN, was 60 years of age. She lived with her husband of 33 years, Kevin, on their 60 acre plant farm outside Sacramento, California. Together they also leased an additional 50 acres of land for fruit farming. Prior to the bus accident, NANCY was a very active farmer of 34 years working 10-12 hour days on their farm. She did not smoke. She did not have any respiratory complaints. She also went on yearly scuba dives, and loved to bicycle and work on the farm. Today, because of her injuries she can perform only 15 percent of her previous duties as a farmer and land owner.

II. INCIDENT

NANCY and her husband are members of the California Rose Farmers Association. It is a non-profit organization for farmers and growers who enjoy roses and plants. Each year the group charters a bus from the defendant bus company to take the group on a two-day fun-filled “Rose Tour” visiting farms and orchards in Central California.

On May 12, 2006, plaintiff was a passenger on a chartered bus operated by defendant, XYZ CHARTER TOURS and driven by its employee, BOBBI JONES. This was the group’s two-day bus trip to the Central Valley for 2006. As the bus was traveling down Interstate 5 in Elk Grove, an unidentified car passed in front of the bus. Defendant JONES slammed too hard on the brakes. The brakes were applied so hard it even caused the bus to “dip down.” Because the driver slammed on the brakes, NANCY fell, injuring her right side.

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