Rear-ender, minor impact with soft tissue and TBI. $6.8M. Napa County.

Summary

Business owner is sandwiched in low-impact rear-end collision. Says TBI prevents her from continuing her business.

The Case

  • Case Name: Margaret Jake O’Kelly v. Mariah Bryant
  • Court and Case Number: Napa County Superior Court / 17CV000345
  • Date of Verdict or Judgment: Thursday, August 23, 2018
  • Type of Action: Vehicles – rear-ender
  • Judge or Arbitrator(s): Hon. Rodney Stone
  • Plaintiffs:
    Margaret Jake O’Kelly, 50, business owner.
  • Defendants:
    Mariah Bryant, 19.
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $6,840,000
  • Net Verdict or Award: Insurance paid $7 million post trial (see notes).
  • Economic Damages:

    Past medical: $30,000

    Future medical: $50,000

    Past lost earnings: $360,000

    Future lost earnings: $2,000,000

  • Non-Economic Damages:

    Past: $400,00

    Future: $4,000,000

  • Trial or Arbitration Time: 12 court days.
  • Jury Deliberation Time: 5 hours.

The Attorneys

  • Attorney for the Plaintiff:

    Dreyer Babich Buccola Wood Campora, LLP by Roger A. Dreyer and Noemi Esparza, Sacramento.

  • Attorney for the Defendant:

    McNamara, Ney, Beatty, Slatery, Borges & Ambacher, LLP by Wilma J. Gray and Lisa R. Roberts, Pleasant Hill.

The Experts

  • Plaintiff’s Medical Expert(s):

    Gary Young, M.D., ER physician.

    Erica Bowman, L.Ac., M.S.

    Michael Mullaney, D.C.

    Richard Olcese, Psy. D., neuropsychology, Santa Rosa.

    Richard Latchaw, M.D., neuroradiology.

  • Defendant's Medical Expert(s):

    Bruce T. Adornato, M.D., neurology, Palo Alto.

    Jerome A. Barakos, M.D., neuroradiology, San Francisco.

    Joanne Berg, Ph.D., neuropsychology, Oakland.

  • Plaintiff's Technical Expert(s):

    Richard Barnes, CPA, economics.

  • Defendant's Technical Expert(s):

    Elaine Serina, Ph.D., accident reconstruction/biomechanics, Hayward.

    Michael Diliberto, III, CPA, economics.

Facts and Background

  • Facts and Background:

    On June 1, 2015 at approximately 4:00 p.m., on northbound Highway 29 in St. Helena, California, plaintiff was at a complete stop when she was rear-ended by defendant, who was driving a 1998 Honda Civic with a Delta V of 5-6 mph according to defendant’s accident reconstructionist/biomechanist. The impact pushed plaintiff’s vehicle forward into a Ford Explorer which was stopped in front of the plaintiff's vehicle. The frontal impact had a Delta V of approximately 6-7 mph according to defendant’s accident reconstructionist/biomechanist. Both were low-speed impacts that showed very little to no property damage. The photos of the property damage were displayed for the jury as foundation for defendant’s accident reconstructionist/biomechanist’s opinion about the impacts being “very low speed impacts.” Plaintiff was wearing her seat belt at the time of the accident.

  • Plaintiff's Contentions:

    That plaintiff suffers from a mild TBI due to the impact of the collision.

  • Defendant's Contentions:

    Defendant admitted liability on June 7, 2017 in responses to plaintiff’s Request for Admissions. Defendant disputed the claimed injuries and hired accident reconstructionist/biomechanist, Elaine Serina, Ph.D. who testified in deposition that Ms. O’Kelly could not have suffered a mild traumatic brain injury from the subject collision.

    According to defense expert, neuropsychologist Janna Berg, Ph.D., plaintiff’s claimed cognitive symptoms, were not a result of a mild traumatic brain injury. Her opinion was that Ms. O’Kelly’s symptoms were a result of prior depression and anxiety and life events such as the death of Ms. O’Kelly’s father in 2013; not having a husband or partner; her two daughters having graduated from college and moved out of the house; a downward spiral in her business; and the Tubbs Fire in October 2017; and her subsequent relocation. These claims were all made despite having no evidence of any depression, past or present or any treatment for that condition.

    Defendant did not dispute the past medical expenses claimed by plaintiff and entered into a stipulation as to the reasonable value of the bills having been $26,028.44 but disputed they were causally related to the collision. In closing defense counsel suggested to the jury that they award the past medical expenses and to even round that number up to $30,000.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    As a result of the subject incident, plaintiff claimed she suffered a mild traumatic brain injury with associated cognitive deficits including short term memory issues, multi-tasking difficulty, diminution of her executive function capacity and word recall issues. Plaintiff’s physical pain included headaches, neck pain, bilateral shoulder pain, and back pain. She also experienced anxiety and fear since the subject collision.

    Directly after the collision, plaintiff denied injury and drove herself home. It was not until three days later that she saw a physician when she visited the emergency room at St. Helena Hospital. She presented at the hospital with headaches and neck pain but denied loss of consciousness. In the emergency room, she underwent evaluation and imaging studies. She was diagnosed with an acute cervical strain and a closed head injury. She was given an anti-inflammatory injection and was discharged home.

    Plaintiff’s symptoms continued despite following the doctor’s instructions to apply heat, ice, and take pain medications. She began acupuncture treatment several times a week to help manage her symptoms. However, it was hers cognitive symptoms that were worsening. On June 19, 2015, plaintiff sought help from a medical clinic in Calistoga for headaches, dizziness, forgetfulness, and pain all over her body, especially in the neck and left shoulder area. She also reported feeling that her brain was “short circuited.” She was diagnosed with post-concussive headaches. She was prescribed Hydrocodone for her headaches and was referred to undergo a head CT scan. For her neck pain, she was diagnosed with a cervical strain. She was referred to physical therapy and advised to continue acupuncture. She was also given a trial of Norco.

    Plaintiff sought chiropractic treatment in July 2016 for her ongoing physical pain and and she began seeing a neuropsychologist for her continued cognitive symptoms. By this time, plaintiff was also reporting visual and noise sensitivity, trouble sleeping, and headaches with dizziness and nausea, difficulty problem-solving, memory issues, speech issues with reduced fluency and sentence structure, difficulty comprehending what she read, and increased anxiety. She also reported difficulty focusing for more than five minutes, at which time she would experience pressure in her head followed by a sensation of tightening across her head, neck, and the rest of her body. She was diagnosed with a concussion leading to post-concussion inflammation and headaches. She was recommended neuropsychological intervention at least once a month. Plaintiff’s neuropsychologist indicated that her condition had plateaued and that she would require ongoing neuropsychological therapy and treatment to assist her in developing coping mechanisms for her closed head injury for flare-ups in her neck, shoulder, and back.

    Despite continued chiropractic, acupuncture, and neuropsychological treatment, plaintiff’s symptoms remained. Plaintiff’s treating neuropsychologist opined she had reached maximum improvement and she would remain limited in her ability to perform her normal functions. He did not believe she would ever return to her prior functioning level such that she could run her own businesses.

  • At the time of the subject incident, plaintiff, acting as President of the St. Helena Olive Oil Company, a company she founded and ran for twenty years, was in the process of bringing in an investor who was to purchase newly issued shares of stock in the Company. Other shareholders in the Company would remain shareholders. As part of the investment, the agreement called for plaintiff to remain as an employee with the company for a specified period of time, thereby securing continued employment with the company. Her annual salary was to be set at $120,000 a year.

    As a result of the mild traumatic brain injury she sustained in the subject collision, she was unable to consummate the deal relative to the company in that she did not believe she could perform as required by the agreement. Plaintiff’s claim included the loss of the future income she would have received had the sale occurred.

     

     

Special Damages

  • Special Damages Claimed - Past Medical: $26,028.44
  • Special Damages Claimed - Past Lost Earnings: $120,000 a year.
  • Special Damages Claimed - Future Lost Earnings: $2,500,000

Additional Notes

On January 4, 2017, plaintiff demanded what was disclosed to her, a Farmer’s policy limit of $100,000. On March 3, 2017, defendant’s counsel disclosed the limits were actually $250,000 with a $2,000,000 umbrella. Plaintiff served defendant with an Offer to Compromise in the amount of $2,250,000 on August 30, 2017.

On December 29, 2017, defendant extended an offer of $300,000. In response, on January 9, 2018, plaintiff offered to settle for $1.9 million. Defendant never responded to that offer and it lapsed. A mediation in front of Hon. W. Scott Snowden (Ret.) occurred on February 22, 2018. The mediation failed. On June 26, 2018, defendant served plaintiff with an Offer to Compromise in the amount of $500,000. Plaintiff responded by serving defendant with an Offer to Compromise in the amount of $1,200,000 on July 3, 2018. No counter offer was ever made by defendant’s carrier.

The matter has since been resolved on the day before defendant had to file its notice of appeal with Farmers Insurance agreeing to pay the sum of $7 million. Plaintiff’s judgment plus pre-judgment interest and costs due to the year-old statutory demand was approximately $7.5 million.

Disclaimer

This is not an official court document. While the publisher believes the information to be accurate, the publisher does not guarantee it and the reader is advised not to rely upon it without consulting the official court documents or the attorneys of record in this matter who are listed above.

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