Plaintiff beats CCP 998 in lane-change crash with extent of injuries disputed. $898K. Kern County.
Woman walks away from roll-over saying she is uninjured; severe and ongoing pain begin the next day.
- Case Name: Clarke v. Barrett
- Court and Case Number: Kern County Superior Court / S-1500-CV 282587 SPC
- Date of Verdict or Judgment: Thursday, May 12, 2016
- Date Action was Filed: Friday, July 25, 2014
- Type of Action: Vehicles - Auto vs. Auto, Vehicles - Lane Change
- Judge or Arbitrator(s): Hon. Sidney P. Chapin
- Plaintiffs: Elizabeth C. Clarke, 51, manager of a medical marijuana patient association.
- Defendants: Gerald Barrett
- Type of Result: Jury Verdict
- Gross Verdict or Award: $898,077
- Award as to each Defendant:
$898,077 Jury Verdict. The judgment was satisfied upon payment of CCP costs and post-judgment interest for a total of $985,936.05. The county of Kern paid $10,000 to settle its ownership liability approximately one year earlier. Total recovery was $995,936.05
- Economic Damages:
Past economic damages: $ 68,176
Future economic damages: $167,381
- Non-Economic Damages:
Past pain and suffering: $375,000
Future pain and suffering: $287,520
- Jury Polls: 12-0 on all damages.
- Attorney for the Plaintiff:
Ganong Law by Philip W. Ganong, Bakersfield.
- Attorney for the Defendant:
Watten, Discoe, Bassett & McMains by Wayne Watten and Timothy Thompson, Santa Ana.
- Plaintiff’s Medical Expert(s):
Alan Moelleken, M.D., orthopedic surgery, Santa Barbara. (Treating physician.)
Donna Alderman, M.D., osteopathic orthopedics, Santa Clarita. (Treating physician.)
Bettina Neumann, cranio-sacral therapy, San Francisco. (Treating health care provider.)
- Defendant's Medical Expert(s):
Theodore Maravich, M.D.
Barry I. Ludwig, M.D.
Steven L. G. Rothman, M.D.
Agnes M. Grogan, R.N.B.S.
- Plaintiff's Technical Expert(s):
Jesse Wobrock, Ph.D., accident reconstruction, Atascadero.
Stacey Solton, medical insurance billing, Sherman Oaks.
Facts and Background
- Facts and Background:
On October 14, 2013, defendant Gerald Barrett "failed to see" five red lights at the intersection of SR. 178 and L St. in downtown Bakersfield . He was crossing over three lanes to the left and was looking at his rearview mirror and to the side, not realizing the intersection he was approaching was controlled by traffic lights. He testified that he looked up and saw the plaintiff 10 feet away and was traveling approximately 30 -35 mph, when he applied the brakes and struck plaintiff.
Plaintiff, who was returning to work with a takeout lunch, was hit in her Ford Escape on the passenger side. Her vehicle rolled onto its top. Plaintiff escaped the SUV and reported no injuries to the ambulance drivers, but wanted to be checked out at the hospital. The paramedics determined she should go to the hospital due to the mechanism of the collision and transported her. At the hospital plaintiff denied any injuries, but said she wanted to be checked out. She was discharged with medications and told she would likely be sore for a few days. Plaintiff walked back to work, one block from the hospital.
The second day plaintiff went to an urgent care facility due to pain. The third day plaintiff sought treatment from an acupuncturist who had an office near plaintiff's employment. Thereafter plaintiff sought treatment from her family doctor who referred her to a chiropractor. Plaintiff developed neck pain, dizziness, loss of concentration, headaches and back pain. She treated with various conservative modalities without any lasting recovery.
She consulted with a spine surgeon who continued with conservative modalities, but diagnosed multiple small herniations at various levels of her cervical spine. She also had a moderately severe degenerated disc at the C5-6 level. She received a steroid injection for neck pain and spasm shortly after consulting with the spine surgeon; also acupuncture, chiropractic physiotherapy, home exercises, and a cervical epidural injection.
While the therapies had some temporary palliative effect, they didn't last and none reduced her dizziness, loss of concentration or neck spasm. Only wearing a soft cervical collar reduced her symptoms temporarily. Ultimately plaintiff sought consultation with a doctor specializing in platelet rich plasma, (prp) injection therapy.
Plaintiff received 218 injections over an eight-month period to reduce the cervical hyper laxity her orthopedic osteopath diagnosed. The orthopedic diagnosed plaintiff as suffering from Barre-Lieou Syndrome. Plaintiff made significant recovery in her symptoms and sought treatment with a physical therapy clinic. The first clinic administered classic PT which plaintiff could not tolerate.
She sought PT from an Upledger Cranial Sacral therapist in San Francisco who helped her make even greater recovery over the 8-week period of treatment. She was scheduled to start another 3-month course of treatment when she decided to use a Cranial Sacral therapist in Bakersfield to reduce cost and travel time. Plaintiff continued to treat with the local C/S therapist at the time of trial.
- Plaintiff's Contentions:
Plaintiff contended that all injuries were caused by the accident.
- Defendant's Contentions:
Defendant admitted liability but contended that plaintiff only suffered minor sprain/strain injuries that should have resolved in 6-8 weeks.
Defendant also contended that plaintiff had "issues" and switched doctors every time she was making a successful recovery; that plaintiff over-treated her injuries, and that the PRP was an unproven treatment.
Further, Defendant contended the Barre-Lieou Syndrome was discredited, and that the doctor's opinion and the opinions of the accident reconstruction/bio-mechanics expert were unreliable.
Injuries and Other Damages
- Physical Injuries claimed by Plaintiff:
Plaintiff suffered sprain strain of the ligaments of her upper cervical spine leading to hyperlaxity and pressure on the anterior cervical ganglion resulting on Barre-Lieou Syndrome symptoms. She also suffered either aggravation of her pre-existing disc disease at the C5-6 level rendering it symptomatic or new disc protrusion superimposed on her DDD.
She also suffered small disc herniations at the upper cervical disc intervals. She suffered low back strain which resolved. She claimed interference with her quality of life and loss time from work. Due to the nature of her employment, as the manager of a medical marijuana dispensary, the subject of a motion in limine, she made no loss of earnings claim.
Demands and Offers
- Plaintiff §998 Demand: $140,000
- Defendant §998 Offer: $100,000
Defendant made a motion for JNOV, New Trial and alternatively Remittitur. Defendant also made a motion to tax over $77,280 in CCP §998 costs. These motions were taken off calendar after defendant agreed to pay the judgment including all costs except the prejudgment interest of approximately $70,000 which defendant, as a public employee may not have been liable for. Defendant did pay approximately $12,000 in post-judgment interest.
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