Facts

Plaintiff John Silva claimed permanent disability as a bartender for Hyatt Hotel as a result of head, neck, shoulder and back injuries (including an L5-S1 disc herniation) following a high speed freeway rear-end accident on Dec. 22, 2001. The plaintiff was allegedly traveling at a speed around 60 to 65 mph in his 1978 Chevy Camper/Van vehicle when he was rear ended by a Sears 1997 Ford Econoline Service van driven by a Sears driver who was apparently traveling between 80 to 90 mph.

Plaintiff’s driver’s seat failed/detached rearward as a result of impact forces but, at the accident scene, plaintiff denied significant injury and refused an ambulance.
Plaintiff later sought extensive/long term care from an orthopedist, who prescribed a course of care which primarily consisted of medications consisting of Soma and Vicodin over the four years since the accident. Over time, the plaintiff’s symptoms expanded, to where he had seen a neurologist and neuro-psychologist in summer 2005 diagnosing head injury, post traumatic brain injuries and depression, despite the fact plaintiff had never complained of any head injuries or experienced neurological symptoms for several months after the accident.

Defense witnesses including the investigating CHP Officer testified that plaintiff had improperly modified his camper/van, replacing the original driver’s seat and seat belt which the defense argued had actually caused his driver’s seat to fail. Further, the defense contended the seat failure (rather than the 10-15 mph Delta-V-difference in velocity of vehicles) added to the extent of his injuries, which were, in any event, relatively minor soft tissue sprains-strains-contusions and abrasions.

At beginning of trial, Plaintiff withdrew both his expert neurologist and neuro-psychologist. Defendant’s expert neurologist testified as well as defendant’s expert orthopedist, establishing that plaintiff was exaggerating his injury claims, claiming back pain when objective tests were not designed to elicit use of his back muscles; emphasizing the absence of anything objective to support claims of continuing low back pain and disability, beyond 4 months or so post accident.

Defense counsel argued liability should rest primarily but at least half on the plaintiff for failure to properly maintain his vehicle/seat and seat belt per his non-delegable duty to safely maintain his vehicle. Had the seat/seat belt been properly secured to the frame, plaintiff would not have suffered the extent of claimed injuries/damages. Plaintiff injuries were really minor soft tissue which should not render him disabled from work. Defendant’s attorney recommended 50/50 liability and $5,000 in gross damages (given Medi-Cal covered almost all medical specials) for a net verdict of two thousand five hundred dollars.

PLAINTIFF'S CONTENTIONS:
Sears driver was negligent, was speeding, and caused high speed rear-end accident.

DEFENDANT'S CONTENTIONS:
Plaintiff had improperly modified his camper-van replacing the original driver's seat and seat belt which had actually failed in the accident, contributing to his injuries, if any.

Accident reconstruction and Biomechanical experts testified defendant's velocity impact was Delta-V of 15 mph (with closing speed of 23-28 mph) which should not have caused plaintiff’s seat to collapse and seat belt to fail if both were properly anchored to the frame. Given the impact forces, plaintiff could not have sustained a herniated disc, only mild soft tissue injuries, at best.

Settlement Discussions

Carl Lindstrom, Arbitrator, found in favor of plaintiff for $44,500 in November 2004; rejected by Defendant. Plaintiff's lowest demand $200,000; Defendant offer $35,000 (C.C.P. 998). Offer $35,000 plus cost (C.C.P. 998), pre trial.

Damages

Soft tissue neck, shoulder, back; herniated disc at L5-S1; laceration to left leg.

Injuries

Michael Deneberg, M.D., Treating Orthopedist, testified that Plaintiff suffered neck, shoulder, low back pain and L5-S1 disc herniation from subject accident on resulting in total disability from his work as a bartender effective August 2003. Defense medical experts testified Plaintiff sustained self contained soft tissue injuries which resolved within a few months and that plaintiff could have returned to work as a bartender without restriction within 4 months post-accident.

Result

Net judgment in favor of plaintiff of $1,800 (subject to defendants motion for recovery of post 998 costs, fees.) Gross damages awarded by the jury were $4,500 (consisting of $3,500 specials and $1,000 general damages) but jury found plaintiff 60 percent comparatively at fault for seat-seat belt failures; only holding Sears liable for 40 percent.

Other Information

Defendant's motion to recover cost/fees pending.

Deliberation

three to four hours

Length

three days