Articles Posted in Real Cases

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

RISK OF ALZHEIMER’S cont.

In Neuropsychiatric Reviews, October of 2000, Vol. 1, #5, Dr. Trojanowski comments that, “Recent studies have provided very strong evidence that there is a connection between head trauma and at least some of the pathology of Alzheimer’s disease. Dr. Brenda L. Plassman, Ph.D., director of the program in epidemiology of dementia at Duke University Medical Center is quoted as saying, “Positive series outnumber negative ones (in terms of the causal relationship between traumatic brain injury and the development of Alzheimer’s dementia.”

This article cited a study which involved the telephone screening of more than World War II veterans who had suffered a head injury. What was found was that veterans who suffered a severe traumatic brain injury were noted to be at increased risk for ultimately developing Alzheimer’s dementia. The link between traumatic brain injury and the development of Alzheimer’s dementia has been found to be particularly strong in male patients. No pathophysiological explanation for this phenomenon has been firmly established.

It should be also noted that according to the American Journal of Epidemiology, Vol. 149, #1: pages 33-40, ‘Results suggest that traumatic brain injury reduces the time to onset of Alzheimer’s disease among persons at risk of developing the disease.’ Based upon my review of the currently available neurology literature, it is my opinion that plaintiff faces an increased risk for developing Alzheimer’s in the future as a direct result of this severe traumatic brain injury.”

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From the foregoing it is obvious that Ms. Jones knew, or in the exercise of reasonable care, should have known that Plaintiff was not wearing his seat belt. In spite of this, she did not ask Plaintiff to put on his seat belt. At the time of the injury, Plaintiff was a minor. As operator of the vehicle, it was the responsibility of the operator, Ms. Jones, to make sure all minor passengers were seat-belted. Thus, if there is any negligence to be found for the fact that Plaintiff was not wearing his seat belt, it would seem the majority of this negligence would be directed to Ms. Jones as the operator of the vehicle.

The second issue is: had Plaintiff been wearing a seat belt, would it have made a difference? The rear roof of the Honda was crushed down to the seats. Accident Reconstructionist Mr. Barry concludes that the non-use of a seat belt by Plaintiff made no difference in the injuries he suffered in the crash. Thus, there is no causation between lack of use of seat belt and the injuries suffered by Plaintiff.

CONCLUSION REGARDING LIABILITY
The following conclusions can be reached:
1. This is a case of clear liability against defendant Ms. Jones. She caused the crash. The presence of frost or ice on the roadway made no difference. She was simply driving too fast. Ms. Jones admits she caused the crash.
2. If defendants wish to raise the seatbelt defense, they will be faced with two problems. First, it was the primary duty of defendant driver Jones to make sure her passengers were seat-belted. Second, there is no causal connection between lack of a seatbelt and the injuries suffered by Plaintiff. He was going to suffer these injuries regardless, as evidenced by the crushed roof.

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VII. ECONOMIC IMPACT REPORT

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

Robert Johnson, a Forensic Economist and President of Robert W. Johnson & Associates, has prepared an Economic Impact Report calculating the present cash value of Mr. Smith’s economic losses and future medical expenses. The report stated in part:

Total Expected Value Total Present Value
Expected Income $587,566 $579,542
Medical Expenses $2,286,027 $2,428,274
TOTALS: $2,873,593 $3,007,816
VIII. DAMAGES
General Damages $250,000.00
Wage Loss $579,542.00
Medical Expenses $2,428,274.00
TOTAL ECONOMIC DAMAGES: $3,257,816.00

IX. LIABILITY OF DR. X., M.D.

A. Dr. X’s treatment of William Smith’s back wound was below the standard of care.

1. FAILURE TO CONSIDER OR TEST FOR INFECTION:

The wound did not heal for more than two years under Dr. X’s inadequate care. During this time, Dr. X. failed to consider infection as a possible cause of the chronic ulcer or his severe back pain even though this possibility was immediately recognized by Mr. Smith’s family. Ms. Greene, plaintiff’s ex-wife, and both of his sisters (Susan and Mary Smith) described the wound’s appearance on March 17, 2002 while he was under Dr. X’s care as follows:

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MS. GREEN

Ms. Green was hired in January 2000 as an administrative assistant. She worked in the Sacramento location of ABC Automobiles with David Stevens and Bill Armstrong until October, 2005. She resigned when she could no longer tolerate Mr. Stevens’ sexual harassment of herself and others.

During her employment, David Stevens touched Ms. Green and hugged her against her will on several occasions.

In April or May of 2004, Ms. Green was having female medical problems. She kept these private and was embarrassed by them. Somehow David Stevens found out about this and told her in front of her co-workers, “All that bleeding must be affecting your sex life.” She was deeply humiliated.

Ms. Green could see most of what David Stevens did in the office. When young females came into the office for an interview prior to being placed in employment, they were often interviewed by Mr. Stevens. She saw Stevens touch the young women’s knees and put his arm around them on many occasions, even though he had just met them and they were only there for a pre-employment interview. Bill Armstrong could also see this conduct.

David Stevens told sexual jokes to the whole office, including Ms. Green. These sexual jokes were completely unwelcomed by her and the other female employees.

When young women walked by the front office window both David Stevens and Bill Armstrong would loudly comment on them, such as “Did you see that one!”

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MS. WHITE

Ms. White had previously worked for Jim Phillips. On September 23, 2005, she was rehired by ABC Automobiles work in its Sacramento location under Bill Armstrong and David Stevens.

While working at ABC Automobiles she observed daily Mr. Stevens’ unlawful sexual conduct directed towards herself and other females.

Once while wearing a longer skirt and reaching into the refrigerator, a split in her skirt fell open partially revealing her thigh. David Stevens reached out and touched her thigh. Ms. White strongly reprimanded him. David Stevens touched Ms. White weekly, always against her will. In April 2006, he tried to kiss her. She immediately pushed him away.

Mr. Stevens often grabbed Ms. White’s shoulders and said “Hi, sexy!”

Mr. Stevens announced to the office that he was dating one of the female applicants that he was in charge of. He instructed the women in the office, including Ms. White, that if his wife called they should lie about his whereabouts if he was out with the female applicant.

The office staff went to a “crab feed” fundraiser for the Lion’s Club. Ms. White and her husband, Steve, attended as did David Stevens and his wife. David chose a seat next to Ms. White. During the meal David Stevens reached under the table and began touching Ms. White’s leg; she was frightened, embarrassed and humiliated. She was afraid to tell her husband, not knowing what would happen. Ms. White moved away from Mr. Stevens and left the fundraiser early without telling her husband.

Ms. White weekly saw David Stevens sexually harass young female job applicants. She heard both Mr. Stevens and Mr. Armstrong comment loudly whenever a pretty young girl would walk past the front window.

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

Susan Smith:
“MC: On that occasion [3/17/02] did you happen to see the wound on William’s back?
SS: Yes.
MC: How did you come to look at it?
SS: Because our aunt was so upset so she said come and look at, he never wanted us to look at it, and we all went over there and looked at it. Unbelievable.
MC: What did you see, how would you describe it?
SS: It was gross, it was just unbelievable. It was all red and swollen and smelled.
MC: Have you had children?
SS: I have four daughters.
MC: So you’ve seen an infected wound before?
SS: Yes.
MC: Was that wound infected when you saw it?
SS: Yes.
MC: Clearly infected?
SS: Yes.
MC: No doubt in your mind?
SS: Yes, because it was red all around it.
MC: You were just shocked at the way the wound looked?
SS: Yes.
MC: You couldn’t believe that the wound was that bad?
SS: No.
MC: After Dr. X. had been taking care of it for two years?
SS: Right.”
Mary Smith:
“MC: On 3/17/2002, you gathered at William’s house, the whole family?
MS: Yes.
MC: On that occasion on 3/17/02, did you look at the sore on William’s lower back?
MS: Yes we did.
MC: Had you ever seen that sore before?
MS: No. . . . He was in a lot of pain, so we just insisted on looking at it.
MC: So, on 3/17/2002, you took a look at it?
MS: Yes.
MC: Can you tell us what you saw?
MS: Red all around it, there were red streaks, his whole back was red.
MC: Was there a smell?
MS: Yes, terrible smell.
MC: When you looked at that sore, did it look infected to you?
MS: Yes.
MC: And that’s because of why?
MS: Because of all the redness and swelling and smell.”

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

X. SPECIAL DAMAGES
Plaintiff was rushed by ambulance to Mercy San Juan Hospital. After 14 days she was transferred to U.C.Davis Medical Center where she was hospitalized for 22 additional days. The bills for the foregoing are as follows.
Sacramento Metropolitan Fire District $ 1,021.97
UC Davis Med Center $ 150,450.62
Mercy San Juan Hospital $ 210,437.00
TOTAL DAMAGES $ 361,909.59

At time of trial plaintiff will be entitled to present to the jury the sum of $361,909.59, itemized above. Plaintiff’s medical bills are referenced below. Plaintiff has also been served with a lien from Catholic Healthcare West for Mercy San Juan Hospital in the sum of $210,437.00. There remains no Medi-Cal lien for these charges as it has been withdrawn. Catholic Healthcare West has refunded all monies received from Medi-Cal and the Medi-Cal lien is cancelled because the defendant tortfeasors are insured and Medi-Cal is, by statute, the payer of last resort.

XI. SETTLEMENT OFFERS
Plaintiff has sued Chris Brown for compensatory and punitive damages as a result of his drunk driving. Plaintiff is also entitled to an award of attorney fees if defendant is convicted of a felony. In addition, plaintiff has sued Paul and Mary Brown for negligent entrustment of the vehicle to their son.

The defendants are insured by Allstate Insurance with policy limits of $500,000 per accident plus an umbrella in the sum of $1,000,000. Total insurance coverage available for all three claims arising from the collision is, therefore, $1,500,000.

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MS. BLACK

Ms. Black was hired to work as a replacement at the ABC Automobiles Sacramento location in December 2005. Shortly thereafter, David Stevens tried to touch her body and rubbed her shoulders against her will.

Ms. Black saw how Mr. Stevens sexually harassed young female job applicants who came in for an interview to be placed by ABC Automobiles in administrative jobs. He would call them “sweetie” and “honey.” He would touch them, put his arm around them, and even kiss applicants he met for the first time. He also told sexual jokes to the whole office.

Ms. Black complained to Bill Armstrong about David Stevens’ conduct but nothing was done.

On May 1, 2006, Mr. Stevens tried to hand out to females in the Sacramento location packets of lotions from Victoria Secret with the picture of a model in a sexual pose. Ms. Black refused to accept it. David Stevens laid it on her desk anyway and walked away. A photocopy of the packet is part of this record.

The following day, Ms. Black confronted Mr. Stevens and complained to Mr. Armstrong. Ms. Black told Mr. Armstrong she wanted to file a complaint. Mr. Armstrong said he didn’t know how to do that but he would get back to her.

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

From the outset, Dr. X. knew that Dr. W’s radiation treatment might result in an infected wound. Dr. X. testified on page 43, lines 11 through 19:

“Q. But my question to you, sir, you knew when you sent him down to see Dr. W. that what Dr. W. was going to do carried with it a risk of infection of that area?
A. Correct, but no greater risk than any other treatment of skin cancer.
Q. Whether or not it’s greater or lesser, you knew there was a risk of infection?
A. That’s correct.”

In fact, Dr. X. testified that with 90 percent of his patients he has to consider infection:

Page 45, lines 11 through 16:

“A. On almost 90 percent of what we see there’s always a potential for a pathway for infection to start.
Q. So 90 percent of the things you see you’ve got to be considering infection?
A. We’re always aware of the possibility. I’m always aware of the possibility of infection.”

In his testimony, Dr. X. sets forth his personal standard of care: “I’m always aware of the possibility of infection.” He failed to follow his own standard of care when treating William Smith’s open back wound.

Incredibly, Dr. X. does not feel he should be criticized for failing to consider that this chronic and increasingly painful wound might be infected. This is a true even though he conceded plaintiff’s worsening pain would be a sign of infection.

Page 96, lines 7 through 17:

“Q. Infection had not been ruled out, true?
A. Infection had not been ruled out, but one would expect if infection were an element in here that there would be over time, that things would get worse.
Q. Okay. Would the pain get worse?
A. It’s conceivable pain would get worse. It would be one potential change with infection.
Q. Pain getting worse, it would be saying to you well, maybe the cause is infection, right?
A. Infection would be one of the things that I would consider.”

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

B. Joint Offer from All Plaintiffs

On September 15, 2007, all three plaintiffs in this action joined in renewing a policy limit offer to settle the entire case. A copy of that offer states the following:

“As you know, your clients have been sued for compensation and punitive damages following a drunken driving crash caused by Mr. Brown. His parents were sued for negligent entrustment. The plaintiffs have suffered serious injuries including brain damage and fractures requiring hospitalization. Please see plaintiffs’ Mediation Briefs for a further description of their injuries and economic damages.

All three plaintiffs in this case, by and through their respective attorneys, previously offered to jointly accept payment of the Defendants’ full policy limits of coverage (two policies totaling $1,500,000.00) in settlement of this case.

Please allow this letter to again alert you, Allstate Insurance, and the defendants’ insurance adjustors that plaintiffs’ combined global settlement offer is again offered by all three plaintiffs, by and through their respective counsel, and is available to provide all three of your clients with a complete and full release of all claims against them. In addition, the plaintiffs will extinguish all liens.

Stated another way, if Allstate Insurance Company agrees to pay to the injured plaintiffs the limits of the insurance coverage previously purchased by the Brown family from Allstate, then the Brown family (Chris, Mary and Paul) will be forever finished with the litigation and will be fully released from any further claim for compensatory and/or punitive damages. The case will be over.

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