Donald and Carmen DuJardin v. City of Oxnard, et al.
Published: Mar. 8, 1997 | Result Date: Feb. 6, 1997 | Filing Date: Jan. 1, 1900 |Case number: 106359 – $1,154,800
Judge
Court
Ventura Superior
Attorneys
Plaintiff
Defendant
Thomas E. Beach
(Beach Law Group LLP)
Experts
Plaintiff
Steven J. Nagelberg M.D.
(medical)
Hans Von Trampe
(medical)
H. Daniel Murphy
(medical)
Defendant
Phillip S. Lewis
(technical)
Facts
On Sept. 21, 1988, plaintiff Donald DuJardin, a 28-years-old man employed by the Oxnard Union High School District on grounds crew, was carrying an old stove into a walk-in 30-yard dumpster with a foreman. The plaintiff was backing up with one end of the stove and stepped into a hole in the floor of the dumpster. As a result, the stove came partially down on the plaintiff. The stove weighed approximately 40 pounds. The dumpster was rented from the defendant city of Oxnard by the plaintiff's employer and delivered by the defendant sometime before the accident. The plaintiff had been a permanent employee for three weeks at the time of the accident, earning $18,000 per year plus $4,100 per year in a benefits package. The plaintiff continued to work regularly, plus overtime, for three months after the accident without seeking medical attention. On Jan. 4, 1989, the plaintiff consulted a family practitioner. There was some conflict in the diagnosis of the lower-back injury at the time, but it was later diagnosed as a herniated disc. The plaintiff was operated on in Sept. 28, 1990 for removal of disc material and interbody fusion. The fusion failed and was redone Oct. 26, 1990. The plaintiff underwent a pedicle screw fusion on Jan. 27, 1992 and a fourth surgery to remove the hardware on March 26, 1990. As a result, the plaintiff was left with partial failed fusions, both inter body and pedicle screw, and scar tissue surrounding the L5-S1 nerve root. The plaintiffs, husband and wife, brought this action against the defendants based on negligence, dangerous condition of public property and loss of consortium theories of recovery.
Settlement Discussions
The plaintiffs made a settlement demand for $200,000 (new money over the workers' compensation lien of $179,000). The defendant made no offers (during the second trial).
Specials in Evidence
$27,000 $200,000 $600,000 $
Injuries
The plaintiff alleged permanent disability resulting from an unstable interbody and pedicle screw fusion in addition to scar tissue entrapping the L5-S1 nerve root creating pain 24 hours a day in his low back and down the back of his right leg.
Other Information
The verdict was reached approximately seven years and six months after the case was filed. SETTLEMENT CONFERENCES: Several settlement conferences were held in 1996. They did not resolve the matter.The case was first tried on Feb. 19. 1994, resulting in a defense verdict. The case was appealed by the plaintiff which resulted in reversal by the Court of Appeal and a second trial. A ruling by the court precluded defense doctor, Jerome Covin, from testifying live in court or by videotape that the back surgeries were negligently recommended or performed by the plaintiff's doctors. The defendant then decided not to call Dr. Covin as a witness. The ruling was made pursuant to BAJI 14.66.
Deliberation
2 hours (liability); 4 hours (damages)
Poll
12-0 (negligence and dangerous condition); 12-0 (economic damages); 9-3 (non-economic damages)
Length
9 days
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