Disputed liability and injuries in motorcycle accident. $3.7 million. Los Angeles County.
Lexus driver said to be at fault when motocyclist is severely injured; she says he was lane-splitting.
- Case Name: Nicholson v. Borok
- Court and Case Number: Los Angeles Superior Court / BC553756
- Date of Verdict or Judgment: Wednesday, August 17, 2016
- Date Action was Filed: Monday, August 11, 2014
- Type of Action: Negligence, Vehicles - Motorcycle
- Judge or Arbitrator(s): Hon. Bobbi Tillmon
- Plaintiffs: Stephen Nicholson, 42, big truck mechanic.
- Defendants: Zea Borok
- Type of Result: Jury Verdict
- Gross Verdict or Award: $3,778,095.94
- Net Verdict or Award: $3,135,819.63
- Contributory/Comparative Negligence: 87% to defendant; 13% to plaintiff.
- Economic Damages:
Past loss of earnings: $99,386
Past medical expenses: $396,243.63
Property damage: $6,192.31
Future loss of earnings: $1,107,274
Future medical expenses: $269,000
- Non-Economic Damages:
Past non-economic damages: $400,000
Future non-economic damages: $1,500,000
- Punitive Damages:
- Trial or Arbitration Time: 7 days
- Jury Deliberation Time: 2 days
- Jury Polls: 12-0
- Post Trial Motions & Post-Verdict Settlements: Pending.
- Attorney for the Plaintiff:
Law Offices of Victor Alexandroff, APC by Victor Alexandroff, Encino.
- Attorney for the Defendant:
Law Offices of Gregory J. Lucett by Jason Cohen, Elizabeth Sutlian and Marsha Munemura, Glendale.
- Plaintiff’s Medical Expert(s):
Jacob E. Tauber, M.D., orthopedic surgery, Glendale. (Treating physician.)
- Defendant's Medical Expert(s):
Jonathan T. Nassos, M.D., Beverly Hills.
- Plaintiff's Technical Expert(s):
Joseph G. Yates, accident reconstruction, Seal Beach.
Sandra Schneider, M.S., CRC, CDMS, ABVE., vocational rehabilitation, Los Angeles.
Susan P. Bleecker, accounting, Pasadena.
- Defendant's Technical Expert(s):
Kenneth A. Solomon, Ph.D., accident investigation, Woodland Hills.
Jubin Merati, Ph.D., AVA, AIBA, BVAL, CFFA, economics, Los Angeles.
Facts and Background
- Facts and Background:
On April 29, 2014, at 5:40 p.m., plaintiff was operating his 2003 Kawasaki motorcycle fully within in the number one lane of northbound Interstate 5 near the Los Angeles River. Defendant Zea Borok, operating her white Lexus in the number two lane ahead of him, suddenly and without signaling moved into the number one lane, causing another motorcycle traveling slightly behind the Lexus, between the number one and two lanes, to swerve to the left and cross directly into plaintiff’s path in an attempt to avoid colliding with the Lexus.
The Lexus came to a stop at a 45-degree angle with the motorcycle operated by Jonathan Pontel stopped between the center divider and the Lexus, blocking the entire number one lane and partially blocking the number two lane. Plaintiff braked as hard as he could as he turned to the right which caused his motorcycle’s rear end to lift and to flip over, tossing him to the ground, with the motorcycle coming down on top of him.
- Plaintiff's Contentions:
That liability for this accident rests with defendant, Zea Borok. That Ms. Borok was inattentive and, without signaling, made an unsafe lane change in violation of California Vehicle Code sections 21658, 22107 and 22108.
- Defendant's Contentions:
That plaintiff was lane splitting, following too close, and was not driving at a reasonable speed at the time of the accident and thus caused his own injuries.
Injuries and Other Damages
- Physical Injuries claimed by Plaintiff:
On September 11, 2014, due to the persistent pain, swelling, popping, and clicking to his knees and pain to right elbow and shoulder, plaintiff consulted with orthopaedic surgeon, Jacob Tauber, M.D. After his examination Dr. Tauber recommended MRIs of both knees and an ultrasound of his right elbow. The ultrasound of the right elbow was obtained on October 8, 2014 and revealed edema and micro-ruptures of the common flexor tendon and ulnar nerve subluxation. Dr. Tauber recommended nerve conduction studies and an EMG of the right elbow. The MRI of left knee obtained on September 19, 2014 revealed: thinning of the anterior cruciate ligament and partial tear of the posterior cruciate ligament; grade III tear of the posterior horn of the medial meniscus and narrowing of the anterior horn of the medial meniscus; grade III tears of the anterior and posterior horns of the lateral meniscus; fracture of the lateral tibial plateau; and, small joint effusion. The MRI of the right knee obtained on November 6, 2014 revealed: anterior cruciate ligament is thinned and a partial tear of the posterior cruciate ligament; grade II tear of the posterior horn of the medial meniscus and grade II signal in the posterior horn of the lateral meniscus; grade III tear of the anterior horn of the medial meniscus; and small joint effusion.
On November 18, 2014plaintiff consulted with Aaron Coppelson, M.D. and underwent the electro-diagnostic testing which demonstrated right moderate compression of the median nerve at the carpal tunnel and right moderate compression of the ulnar nerve at or near the medial epicondyle and left mild compression of the median nerve at the carpal tunnel. Dr. Tauber advised plaintiff that he was a candidate for arthroscopic surgery of his knees. Due to the constant pain, difficulties, and persistent locking and losing feeling, causing him to fall down, plaintiff consulted with orthopaedic surgeon, Jamshid Hekmat, M.D. for a second opinion. Following his examination and review of the MRIs, Dr. Hekmat recommended arthroscopic surgery of both knees.
On June 25, 2015 plaintiff underwent the recommended arthroscopic surgery of his left knee. He was recovering with physical therapy when his left knee gave out. He fell, twisting his left knee severely. As a result he was unable to bear weight and ambulate on the left knee. An MRI of the left knee obtained on July 21, 2015 revealed partial tearing of the medial collateral ligament and the patellar tendon. On July 30, 2015, plaintiff underwent a second surgery to repair the tears. On July 16, 2015, plaintiff returned to Dr. Tauber with complaints of continuing pain to his right elbow and shoulder along with numbness. Dr. Tauber ordered further MRI studies which were obtained on July 22, 2015. The MRI of the right shoulder demonstrated acromioclavicular degeneration with downsloping of the acromion and tendinopathy of the rotator cuff. Dr. Tauber’s diagnosis was right shoulder impingement syndrome and found him to be a candidate for an arthroscopic subacromial decompression and a candidate for decompression of the ulnar nerve at the right elbow with medial epicondylectomy and plastic closure.
On September 25, 2015, plaintiff underwent the recommended surgeries to his right elbow, wrist and shoulder. Following the surgery plaintiff received two months of physical therapy to restore mobility to the left shoulder/arm. Dr. Tauber ordered a repeat MRI of plaintiff’s left knee due to his complaints of continuing pain and difficulties. The MRI demonstrated a re-tear of his medial meniscus. On November 20, 2015, plaintiff underwent surgical repair of the tear. Thereafter he received two months of physical therapy. On January 22, 2016, plaintiff underwent the recommended surgical repair of his right knee. In his follow-up examinations with Dr. Tauber, plaintiff reported continuing pain and difficulties with his left knee. He was experiencing buckling and giving way. After an extensive discussion by Dr. Tauber of alternatives of care including medication, therapy, and injections versus total knee replacement plaintiff decided to proceed with surgery, which took place on March 9, 2016. After three months he has severe limited range of motion.
Plaintiff has been informed by Dr. Tauber that he will require additional surgeries to his left knee. At this time, arrangements are being made for manipulation under anesthesia in an attempt to increase flexion and extension. If this proves ineffective he will require further surgical procedures.
Loss of earnings.
- Special Damages Claimed - Past Medical: $396,243.63
- Special Damages Claimed - Future Medical: $269,000
- Special Damages Claimed - Past Lost Earnings: $99,386
- Special Damages Claimed - Future Lost Earnings: $1,170,274
Demands and Offers
- Plaintiff §998 Demand: $1,499,000
- Plaintiff Final Demand before Trial: $1,200,000
- Defendant §998 Offer: $941,000 (at time of trial).