Facts

On Jan. 31, 2006, plaintiff Les Gapay, a 62-year-old freelance writer and publications consultant, was stopped in his 1998 Toyota Tacoma behind a 1995 Toyota 4-Runner at a red light in Palm Dessert. Defendant Joanne Struthers was in a 2006 Toyota Sequoia registered to her husband, James Struthers. The plaintiff alleged that when the light turned green, before traffic in front of him began moving, the defendant accelerated forward and impacted the rear of plaintiff's vehicle, causing his vehicle to be pushed into the vehicle on front of him.

The plaintiff claimed he hit the back of his head on the head rest or rear window, and his right foot was partially on the right side of his brake, with the impact causing his right knee to twist.

Defendant James Struthers was dismissed prior to trial commencing on July 6, 2006.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that the defendant was liable for the accident and that her inattentiveness was the cause of plaintiff's injuries. Plaintiff claimed the accident caused his knee injury (meniscal tear) and resulted in two subsequent arthroscopic surgeries. All three orthopedic experts, including the defense expert Dr. Painter, testified the medial meniscal tear and the two arthroscopic surgeries were caused by the accident. Plaintiff also claimed the accident caused injury to his neck and hearing loss.

DEFENDANT'S CONTENTIONS:
The defendants disputed the nature and extent of plaintiff's alleged damages and contended that the plaintiff's alleged injuries were a result of pre-existing and subsequent medical conditions or accidents. The plaintiff later testified at trial that the only part of his body that hit any part of the vehicle was his head, specifically denying that he hit his knee. The plaintiff admitted to having some hearing loss before the accident.

Settlement Discussions

At the mandatory settlement conference, the plaintiff demanded $95,000; the defendant offered $30,000 (as per defense counsel); $35,000 (as per plaintiff's counsel).

Specials in Evidence

$15,000 per stipulation (as per plaintiff's counsel); $50,000, in evidence approximately $12,000 (as per defense counsel).

Damages

The plaintiff claimed that due to his injuries, he was unable to work for approximately two months. Prior to testifying, plaintiff waived any loss of earning claim.

Injuries

The plaintiff allegedly suffered immediate headache and dizziness and after the accident, was seen at Eisenhower Immediate Care. He was diagnosed with cervical sprain and was prescribed a muscle relaxant. The following day, the plaintiff returned to urgent care with a swollen neck, right ear pain, and difficulty hearing and speaking, at which time he was advised he had a concussion. An ultrasound indicated a small focus of fluid collection in the anterior thigh soft tissue and right ankle. A later MRI showed a complex unstable tear of the medial meniscus and mild to moderate joint effusion. On May 2, 2006, the plaintiff had arthroscopic meniscectomy on his right knee, followed by physical therapy until June 2006. Subsequently, an abscess formed in his knee, due to a non-dissolving stitch from the surgery, requiring antibiotic treatment. The plaintiff underwent a second arthroscopic meniscectomy because of a residual tear. Plaintiff underwent a second knee surgery in March 2009. The plaintiff additionally was diagnosed with degenerative arthritis in both knees, worsened by the subject accident. The plaintiff began experiencing lower and middle back pain, which his doctor told him was caused by his change in gait due to knee problems.

Result

On May 15, 2008 in arbitration, the arbitrator awarded plaintiff $71,571. Defendant de novo'd. The jury found in favor of the defense.

Other Information

The plaintiff filed a notice of intent to move for new trial and motion for judgment notwithstanding the verdict. Both were denied. FILING DATE: March 6, 2009.

Deliberation

30 minutes

Poll

9-3 (defendant's negligence being a substantial factor in causing harm to plaintiff's right knee and neck), 12-0 (defendant's negligence being a substantial factor in causing plaintiff's hearing loss)

Length

six days