Defendants argue causation and extent of injury after admitted-liability truck accident. $1 million offer.
Past medical bills: $532,000
Past lost earnings: $282,288
Future medical expenses: $500,000
Future lost wages: $900,000
McElfish Law Firm by Raymond D. McElfish, West Hollywood.
California Attorney Group by Bob Khakshooy and Sandeep Agarwal, Beverly Hills.
Poole & Shaffery by John Shaffery and Jason Benkner, Los Angeles.
Fardad Mobin, M.D., neurosurgery, Beverly Hills.
Carol Hyland, life care planning, Oakland.
Rick Sarkissian, vocational rehabilitation, Fresno.
Andrew Morris, medical billing, Torrance.
Tamorah Hunt, Ph.D., economics, Santa Ana.
Michael Weinstein, M.D., orthopedic surgery, Newport Beach.
Jay Tsruda, M.D., neuroradiology, Pasadena.
Griff Stelzer, medical billing, Los Angeles.
David Weiner, economics, Los Angeles.
Gene Bruno, life care and vocational rehabilitation, Encino. (Testified via video.)
Kenneth Solomon, accident reconstruction and biomechanics, Woodland Hills.
Jason Arst, accident reconstruction, Long Beach.
Douglas Young, biomechanics, Sacramento.
On August 10, 2015, at about 6 p.m., plaintiff was driving his Freightliner liquid nitrogen truck back to the yard for Trimac Transportation on the 605 South when he was rear-ended by a tractor-trailer driven by Ubaldo Figueroa and owned by Pacifica Trucking. Defendant testified that he rear-ended plaintiff as he was decelerating from 45-50 mph. Plaintiff testified that the impact knocked his glasses off, he hit his chest on the steering wheel, his head on the windshield, and his lunchbox and clipboard flew off the passenger seat. He also testified that the impact pushed his truck about two car lengths.
After the accident plaintiff did not request medical care at the scene, refused an ambulance and went and dropped the truck off at the yard nearby. Both vehicles were driven from the scene. Plaintiff testified he had back pain at the scene, but later that evening he began developing worse back pain and pain into his leg. The next day he went to work and he was sent to the clinic for evaluation and X-rays, and he was given medication.
Thereafter plaintiff presented to the emergency room at Kaiser with back and leg pain and then began treating with Dr. Kim and Dr. Badday at South Bay Pain Docs for almost a year. He had several epidurals in 2015 and into 2016 and in July of 2016 he decided to undergo a lumbar fusion with Dr. Fardad Mobin, including plates and six pedical screws. He continued physical therapy and in the spring of 2018 he had a spinal stimulator implanted by Dr. Kosar. In July of 2016 he had hardware removal surgery and a further fusion by Dr. Mobin.
Plaintiff had not been able to return to work as a truck driver since the accident. His wife, Geena, a probation officer, testified that he had ongoing back pain but the leg pain got better. At the time of trial, plaintiff testified that he was getting better and would start to consider looking for work of some kind within his physical limitations.
Plaintiff’s accident reconstruction expert Dr. Kenneth Solomon testified that the impact was substantially lower than 40-50 mph, in the 17-23 mph range with a Delta V of 11-15 mph. Dr. Kenneth Solomon testified that the impact was sufficient to cause low back injury and the need for treatment and care. Dr. Mobin testified that the accident caused the injury and the need for surgery as he did not have any prior complaints or low back treatment or care.
Dr. Sarkissian testified that plaintiff was unable to return to work and would not ever be able to return to work as a truck driver and would need to settle for a lower-paying desk or clerical job. Dr. Morris testified that the past medical bills of $880,000 were reasonable and customary at $632,000 and Ms. Hyland testified as to the future medical and life care needs. Dr. Hunt testified that the need for future care and lost wages, assuming plaintiff found a lower paying job, would amount to approximately $1,951,000.
Plaintiff also called as witnesses police officer Whitney to establish the location and nature of the accident and Dr. Park from Kaiser to establish the back and leg pain only 2 days after the accident. Plaintiff also called Jeremy Essis and Terrance Hall, two of plaintiff’s supervisors at Trimac, that told the jury he was a model employee and a hard worker and a reliable truck driver.
Plaintiff claimed that the accident was significant, that all of the treatment and care was related, reasonable and necessary and that he was unable to return to work as a truck driver and would need to settle for a lower paying job and would need future medical care.
Defendant called Jason Arst accident recon expert to establish that this was a relatively low-speed accident with a Delta V of between 4-7 mph based on the crush pattern of the accident. Mr. Arst testified that the Defendants’ vehicle could not have been driven away if the Delta V were any higher.
Defendant called Dr. Douglas Young in biomechanics to establish that the accident was not strong enough to cause sufficient compression to cause injury based on the vehicles’ equal weight and the low Delta V.
Defendants next called Griff Stelzer, a billing expert, to say that the reasonable and customary value of the past medical bills was $174,000 based on Medicare, Workers’ Compensation and contractual payment schedules – which he stated in his experience account for up to 95% of all medical payments made in Southern California market.
Defendants next called Dr. Weinstein, the defense orthopedic spine surgeon, who disagreed with the need for the multiple epidurals and surgery because there was no evidence of an acute disc injury, but admitted that the accident likely caused a lumbar sprain which should have resolved within 3-4 months from the date of the incident.
Defendants next called radiologist Dr. Jay Tsruda to say that the lumbar L5-S1 disk was degenerated and pre-existing in part because the T1 and T2 were both light up, suggesting that the abnormality observed on the scans were degenerative fat instead of trauma-induced edema. Plaintiff’s counsel argued that the film he was looking at on cross-examination was dark. Dr. Tsuruda disagreed.
Dr. Tsruda and Dr. Weinstein both testified that the pain in plaintiff’s leg was caused by a pedical screw improperly placed by Dr. Mobin that should have been repositioned rather than removed. Dr. Weinstein also testified that had plaintiff elected not to do surgery he could have returned to work in 3-4 months with minimal lost pay.
Defendants next called Mr. Bruno to testify that plaintiff needed minimal life care and future medical care and that had plaintiff not had surgery he could have returned to work in a few months. Mr. Bruno also testified that plaintiff going forward could be a freight broker or a water treatment plant manager, both of which required a career change and the water treatment vocation required physical abilities that plaintiff would need to undergo physical training to meet.
Defendants called economist David Weiner who testified that if plaintiff returned to work and avoided the surgery in the beginning his total wage loss would be $18,000 and he would have no future medical care but if he chose to have the surgery, his total future economic package including past medicals and wages, future medicals and wages could exceed $477,784 in the vocation of a freight broker.
Defendant claimed that the accident was not sufficient enough to cause the claimed disc injury and that plaintiff’s cervical injury (back strain) resolved within 6 months from the incident from the conservative care he received. Any further treatment, and resulting harm and limitations related thereto, were related to the unnecessary surgery performed by Dr. Mobin. But given that the unnecessary surgery was done, and assuming the jury accepts plaintiff’s claim that he suffered an acute disc injury necessitating the surgery, he had recovered and could go back to work much sooner than the 6 1/2-year plan outlined by plaintiff’s experts, making as much or even more than he made before by changing careers to a freight broker.