Slow-moving vehicle on freeway hit. $1.08M. San Bernardino County.

Summary

Pickup towing a Ford Expedition is struck from behind by a larger truck. No injuries were apparent at the scene.

The Case

  • Case Name: Francisco Perez v. Con-Mold, Inc. and Mihael Ilies
  • Court and Case Number: San Bernardino Superior Court / CIVDS1602356
  • Date of Verdict or Judgment: Thursday, October 04, 2018
  • Type of Action: Vehicles - Freeway, Vehicles - Tractor Trailers
  • Judge or Arbitrator(s): Hon. Brian S. McCarville
  • Plaintiffs:
    Francisco Perez, 57.
  • Defendants:
    Con-Mold, Inc.
    Mihael Ilies
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $1,083,902.05
  • Settlement Amount: $1,275,000 after verdict based on prejudgment interest and costs.
  • Economic Damages:

    Past medical: $279,040

    Future medical: $304,862.05

  • Non-Economic Damages:

    Past: $500,000

    Future: $0

  • Trial or Arbitration Time: 18 days.
  • Jury Deliberation Time: 2 days.

The Attorneys

  • Attorney for the Plaintiff:

    Banafsheh, Danesh & Javid, PC by Shawn J. McCann and Normandy Kidd, Beverly Hills.

  • Attorney for the Defendant:

    Gates, Gonter, Guy, Proudfoot & Muench, LLP by K. Robert Gonter Jr. and Gina Y. Kandarian-Stein, Irvine.

The Experts

  • Plaintiff’s Medical Expert(s):

    Thomas Hopkins, M.D., orthopedic surgery, Encino.

    Akash Bajaj, M.D., pain management, Los Angeles.

    Mary Jesko, life care planning, San Diego.

    Calvin Beaugez, D.C., chiropractic, West Valley City, UT.

  • Defendant's Medical Expert(s):

    Keith Liberman, M.D., orthopedic surgery, Beverly Hills.

    Stephen Rothman, M.D., neuroradiology, Los Angeles.

    Henry Lubow, M.D., billing.

Facts and Background

  • Facts and Background:

    On July 29, 2014 at approximately 12:45 a.m., plaintiff was driving a 2010 Ford F150 southbound on the I-15. Plaintiff was towing a Ford Expedition which was attached to a tow bar. Plaintiff was driving 20 mph on the freeway.  He did not have any hazard or warning lights illuminated on the towed Expedition. Defendant was operating a 2006 Volvo tractor-trailer at approximately 55 mph. Plaintiff’s minor daughter, Laura Perez, was asleep in the front passenger seat at the time of the accident.

    Defendant noticed plaintiff’s vehicle traveling at 20 mph, a speed much slower than traffic conditions. Defendant tried to change lanes, but after observing another vehicle in the lane immediately next to him, was unable to change lanes. Defendant was unable to avoid a rear-end impact with plaintiff’s vehicle.

    Defendants disputed liability and relied on Vehicle Code Sections 22400 and 24604. The jury was instructed on each of these Vehicle Code sections. 

    Vehicle Code Section 22400 states, “No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with the law.” 

    Vehicle Code Section 24605 states, “(a) Whenever the load upon any vehicle extends, or whenever an integral part of any vehicle projects, to the rear for feet or more beyond the rear of the vehicle, as measured from the tail lamps, there shall be displayed at the extreme end of the load or projecting part of the vehicle during darkness, in addition to the required tail lamp, two red lights with a bulb rated not in excess of six candlepower plainly visible from a distance of at least 500 feet to the sides and rear.  At any other time there shall be displayed at the extreme end of the load or projecting part of the vehicle a solid red or fluorescent orange flag or cloth not less than 18 inches square.”

  • Plaintiff's Contentions:

    That defendant was at fault for the collision which caused injury to plaintiff.  At trial, plaintiff’s attorney admitted plaintiff was 10% comparatively at fault. 

  • Defendant's Contentions:

    Defendants disputed liability and the nature and extent of injuries and damages alleged by plaintiff.

    Defendants argued plaintiff was not injured and the surgeries were not caused by the accident. Defendants also argued the medical bills were unreasonable and not related to the accident. 

    According to defendant, plaintiff did not have any complaints of injury at the scene. Defendant asked plaintiff and his daughter if they were okay at the scene and they said yes. In fact, plaintiff testified at trial that the impact was so minor, his daughter did not even wake up from the impact, nor did she cry and she was not injured. Plaintiff testified the seat belt restrained him and he did not move forward or backwards.      

    No emergency medical response was requested by plaintiff. In fact, plaintiff drove back home to Utah after the accident. He did not seek treatment until one week after the accident when he presented, at the referral of his attorney, to chiropractor Calvin. Throughout his treatment with chiropractor Calvin, plaintiff rated his pain 2 out of 10. Dr. Calvin told the jury that 2 out of 10 equates to “happy” and “let’s have a party!”  

    Plaintiff resided in Utah and drove himself from Utah to Los Angeles for all of his attorney-referred treatment.

    Throughout all of his medical treatment, plaintiff never reported any radicular pain or symptoms of numbness and tingling. All orthopedic and neurological exams were consistently normal. Chiropractor Calvin admitted that plaintiff consistently improved on every visit. Plaintiff regularly had self-reported improvement in daily activities.

    Plaintiff had longstanding degenerative changes in the spine and defendant offered testimony that plaintiff’s condition was not made worse by the accident. 

    Plaintiff had a total of 14 imaging studies in the course of two years.

    Defendants’ neuroradiology expert, Stephen Rothman, M.D. testified there was no instability in the lumbar spine and if there was instability, it was not caused by the accident.  Dr. Rothman testified nothing in any of plaintiff’s MRIs, CTs and X-Rays was caused by the accident and that plaintiff had longstanding degenerative changes in the cervical spine and lumbar spine that was not made worse by the accident. In fact, Dr. Rothman showed the jury that L5-S1 was hypomobile and there was no movement in the discs and the discs lined up perfectly.

    Defendants’ billing expert, Henry Lubow, M.D., testified that plaintiff was over-treated and overcharged.  

    Defendants argued plaintiff was 100% at fault and asked the jury to award $8,000.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Plaintiff alleged he sustained injuries to the neck and low back. He underwent two surgeries, the first of which consisted of L5-S1 fusion on May 11, 2015. On April 4, 2018, plaintiff underwent surgery consisting of screw instrumentation removal. He argued that he would need a third surgery in the future, ALIF at L3-4 and L4-5 with anterior internal fixation at L3-4-5.

Special Damages

  • Special Damages Claimed - Past Medical: $279,040
  • Special Damages Claimed - Future Medical: $304,862.05 (Salt Lake City) or $468,069.51 (Los Angeles)
  • Special Damages Claimed - Past Lost Earnings: $1,500,000
  • Special Damages Claimed - Future Lost Earnings: $2,000,000

Demands and Offers

  • Plaintiff §998 Demand: On January 22, 2018, $800,000 and once expired nothing less than $1,000,000.
  • Defendant §998 Offer: On August 25, 2017, $150,001.
  • Defendant Final Offer before Trial: On September 21, 2018, defendants offered $250,000.
  • Defendant Offer during Trial: During trial, defendants offered $500,000 (see notes).

Additional Notes

During trial, defendants offered $500,000. When the jury began deliberations, defendants revoked the offer. After revoking the offer, plaintiff proposed a high-low of $800,000 to $1 million. Defendants responded with a high-low of $250,000 to $1 million.

Plaintiff sat through trial for seven days and never changed positions or appeared to be in any discomfort which contradicted his testimony.  He was able to use physical gestures with ease when describing the accident to the jury.  He also testified his complaints were tolerable and low.   

On the first day of trial, plaintiff Laura Perez dismissed her complaint. Defendants filed a Memorandum of Costs as to Laura Perez in the amount of $15,824.75.

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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