Driver fails to yield right-of-way when pulling out onto street from driveway.
Nguyen Lawyers, ALC by Minh Nguyen and Megan Klein, Long Beach.
Brown, Bonn & Friedman, LLP by Keith L. Allen, Santa Ana.
Robert Baird, M.D., orthopedic surgery, Irvine.
Rami Hashish, Ph.D., biomechanics, Los Angeles.
David King, accident reconstruction.
Kenneth Solomon, Ph.D., biomechanics and accident reconstruction, Woodland Hills.
Minor impact sideswipe accident on Newport Blvd. in Tustin. Plaintiff was driving North on Newport Blvd. Defendant exited a parking lot from the right side of the street and was merging to the center turn lane to enter another parking lot on the southbound side of Newport Blvd.
That defendant, in failing to yield right-of-way, violated VC 21804 and was therefore 100 percent liable. Also, that plaintiff suffered an exacerbation of his pre-existing rotator cuff tear that was asymptomatic prior to the accident and became symptomatic as a result of the accident.
That plaintiff was contributorily negligent because his eyes had been dilated only 30 minutes before the accident. That due to blurry vision, plaintiff didn't see defendant's vehicle and failed to brake when he could have; that he failed to avoid the accident. Defendant further contended that plaintiff was not injured in the accident and that his pre-existing condition was not exacerbated by the accident.
Exacerbation of pre-existing full thickness rotator cuff tear, ongoing pain and suffering.
Plaintiff initially claimed that the impact caused the rotator cuff tear. In his initial written discovery responses, plaintiff claimed he struck his shoulder on the dashboard. At deposition plaintiff changed his claim and stated that it was the steering wheel upon which he struck his shoulder and that the impact caused the rotator cuff tear.
Plaintiff's treating orthopedic surgeon thereafter testified that the rotator cuff tear was a pre-existing condition. Plaintiff then changed the claim to an exacerbation of the pre-existing condition. Plaintiff also testified that he has been playing tennis for 35 years and that he continued to play tennis even after the accident. He testified that he continued to make overhead serves when playing tennis and that he continues to lift weights at the gym and does push-ups. While on the stand during cross-examination, plaintiff was seen by the jury raising his arm overhead, demonstrating how he serves and he didn't show any signs of discomfort. Defense medical expert Dr. Baird testified that given the extent of the tear, is was a medical probability that plaintiff felt pain in his shoulder before the accident and that he probably associated the pain in his shoulder with muscular pain from too much tennis.
Emotional distress associated with the accident and not being able to pick up his grandchildren. Plaintiff sought non-economic damages for past and future pain and suffering totaling approximately $500,000.