Extent of attorney-referred treatment disputed after rear-ender. $100K. San Francisco County.

Summary

The first civil jury trial in San Francisco Superior Court in 2020 after the pandemic shutdown.  Defense argues the need for treatment was exaggerated by attorney-referred doctors, and that there was a pre-existing condition.

The Case

  • Case Name: Kelman Garcia v. Ting Lin
  • Court and Case Number: San Francisco Superior Court / CGC-19-576555
  • Date of Verdict or Judgment: Monday, November 23, 2020
  • Date Action was Filed: Friday, June 07, 2019
  • Type of Action: Vehicles - Auto vs. Auto, Vehicles – rear-ender
  • Judge or Arbitrator(s): Hon. Russell Roeca
  • Plaintiffs:
    Kelman Garcia, 37, laborer.
  • Defendants:
    Ting Lin
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $100,000
  • Contributory/Comparative Negligence: None.
  • Economic Damages:

    Past medical expenses: $27,000

    Future medical expenses: $38,000

  • Non-Economic Damages:

    Past: $25,000

    Future: $10,000

  • Trial or Arbitration Time: 9 days.
  • Jury Deliberation Time: 6 1/2 hours over 2 days.
  • Jury Polls: 10-2

The Attorneys

  • Attorney for the Plaintiff:

    Law Office of John J. Roach by John Roach, San Francisco.

    Martino & Rossi Law Firm, P.C. by Daniel Rossi, San Rafael.

  • Attorney for the Defendant:

    Philip M. Andersen & Associates by Philip Andersen and Michael Daley, Pleasanton.

The Experts

  • Plaintiff’s Medical Expert(s):

    Kenneth Light, M.D., spine surgery/billing. 

    John Hau, M.D., pain management. (Treating physician.)

    Rodney Sweet, D.C., chiropractics. (Treating physician.)

     

  • Defendant's Medical Expert(s):

    Dimitry Kondrashov, M.D., spine surgery/billing. 

    William Hoddick, M.D., radiology.

  • Plaintiff's Technical Expert(s):

    Lawrence Nordhoff, D.C., accident reconstruction and biomechanics.

  • Defendant's Technical Expert(s):

    Benjamin Ewers, Ph.D., accident reconstruction and biomechanics.

Facts and Background

  • Facts and Background:

    Defendant rear-ended plaintiff on June 4, 2018 at 9:20 a.m.on East Third Avenue in San Mateo. The speed at the point of impact was between 19 and 30 mph.

    Plaintiff was referred to Rodney L. Sweet, D.C. on June 6, 2018 by his lawyer. He treated with the chiropractor for five months, for 30 sessions. The chiropractor did not diagnose lumbar radiculopathy, or make a note of any leg pain. An MRI was ordered showing degenerative changes and a small bulge at L5-S1. At discharge from the chiropractor, plaintiff stated he had no pain that week.

    Plaintiff returned to work as a painter three weeks following the collision. A month after his discharge from the chiropractor, plaintiff was referred by his lawyer to pain management doctor John Hau, M.S., who diagnosed lumbar radiculopathy and recommended an epidural injection at L5-S1. This provided relief, and plaintiff had two subsequent epidural injections on a lien.

    Plaintiff was then referred to Kenneth Light, M.D. for a consultation regarding surgery. Dr. Light recommended a disc replacement surgery at L5-S1.

  • Plaintiff's Contentions:

    That the collision contributed to his low back pain and leg pain, that the three epidural injections were reasonable and necessary, and that plaintiff would require a disc replacement surgery at L5-S1 in the future. Plaintiff also contended that the collision prevented him from playing soccer.

  • Defendant's Contentions:

    Liability was admitted by the defendant with no comparative fault on the plaintiff.

    Plaintiff was able to continue working as a factory worker and no wage loss claim was made. The defense experts testified that the accident did not cause a permanent injury to the disc. Rather, the plaintiff had preexisting degenerative disc disease that was temporarily aggravated by the accident, justifying only a few months of chiropractic care.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Annular tear at L5-S1 causing chemical radiculopathy and the need for disc replacement surgery at L5-S1.

Special Damages

  • Special Damages Claimed - Past Medical: $27,000
  • Special Damages Claimed - Future Medical: $200,000
  • Special Damages Claimed - Past Lost Earnings: $0
  • Special Damages Claimed - Future Lost Earnings: $0

Demands and Offers

  • Plaintiff §998 Demand: $199,000
  • Defendant §998 Offer: $50,000

Additional Notes

Plaintiff had a criminal history. Plaintiff filed a motion in limine to exclude the criminal history, but his felony conviction was allowed into evidence.

Per defense counsel:

The defense asked the jury to award $25,000. The plaintiff asked the jury to award 1.7 million dollars.

The plaintiff demanded the policy of $1.25 million up until about a month before trial at which time he dropped to a CCP 998 of $199,999. The defendant offered $21,000 up until about a month before trial and then came up to a CCP 998 of $50,001. 

This was the first civil jury trial in San Francisco Superior Court in 2020 during the COVID-19 pandemic.

COVID-19 measures taken:

The court conducted hardship requests via Zoom outside the presence of the attorneys. Jurors were given an extensive questionnaire to speed up the process of asking jurors questions in court. Roughly 40 jurors were brought into the jury assembly room for questioning by the court and the attorneys with another 20 or so in a large courtroom watching via Zoom. After a day and a half, 12 jurors and 4 alternates were selected. The trial lasted from November 9 through November 23, 2020.

One witness appeared via Zoom, but the rest of the witnesses were live. The jurors were spread out throughout the courtroom, and the court observed strict social distancing and masks were worn at all times. The witnesses were instructed to wipe down the exhibit binder after testifying. The court used the largest courtroom to give everyone space. With Hon. Ruseell Roeca presiding, the San Francisco Superior Court has shown us that civil justice can be accomplished in a socially distant and safe manner.

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Disclaimer

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