Facts

Plaintiff Jesse Cannon, a 20-year-old construction worker and Marine reservist, was driving a motorcycle on a road in Pleasanton. Defendant Norma McDermott was driving a sedan one lane to the right and a little ahead of plaintiff. She suddenly shifted into plaintiff's lane, causing him to slam on his brakes and lose control of his motorcycle. Plaintiff fell to the pavement. His motorcycle hit a concrete median and skidded further down the road before coming to a rest.

CONTENTIONS:
Plaintiff sued defendant for motor vehicle negligence. He claimed defendant was 100 percent liable for the accident because she drove below the speed limit and made an unsafe lane change without using her turn signal.

Defendant argued that plaintiff was comparatively liable because he was speeding. A defense accident reconstruction expert testified that plaintiff's motorcycle was traveling at 64 mph in a 40 mph zone before the accident. However, plaintiff's accident reconstruction expert opined that plaintiff was driving 46 mph.

Settlement Discussions

Plaintiff made a demand of $250,000 (policy limits) after a C.C.P. Section 998 offer of $35,000 expired. The last demand was $125,000 with an indication of less. Defendant's offer was $15,000 per C.C.P. Section 998.

Damages

Plaintiff demanded $5,000 for property damage to his motorcycle. He also made a claim for past wage loss for $5,600, based on 12 weeks of missed work. He further claimed a loss of $600 from his Marine reservist duty, $200 per month for three months. The defense disputed the wage loss claim, arguing it was exaggerated. Defense counsel claimed that the plaintiff's treating physician testified that plaintiff could have returned to work after only six weeks of convalescence. According to the plaintiff's counsel however, the treating physician signed a return to work letter on Jan. 3, 2003.

Injuries

Plaintiff suffered a fractured clavicle and sustained various cuts, bruises and abrasions. He was taken via an ambulance to a hospital and underwent trauma care. All his physical injuries healed within three months, except for occasional stiffness in his clavicle. Plaintiff claimed the accident exacerbated a pre-existing but dormant bipolar condition. His treating physician testified that there was a reasonable medical probability that the accident caused the onset of plaintiff's bipolar condition. At the time of trial, plaintiff was not undergoing psychiatric care and was not taking any medication. Plaintiff claimed medical specials of $17,373 and made a demand of $350,000 for pain and suffering. The defense did not dispute plaintiff's physical injuries. However, it disputed the claim of bipolar inducement, pointing out that plaintiff did not sustain head trauma in the accident. Defense counsel further noted that plaintiff was involved in another motorcycle accident about five months later in which he sustained a severe head concussion. Plaintiff's medical records show no psychiatric problems until after the second accident. Defendant asserted that bipolar disorder is a genetic disease that is often caused by stress or change in lifestyle. The plaintiff had two major life changes soon after the accident: a wedding, and preparation to be shipped to Iraq with the Marines. (According to the plaintiff, he was a Marine reservist who was trying to become active with the intent of going to Iraq. However, he had not yet been called for service.)

Result

The jury assigned 25 percent of liability to defendant and 75 percent to plaintiff. It awarded $41,114 ($21,114 for medical specials and lost earnings, and $20,000 for pain and suffering). With the apportionment of liability, plaintiff's award was reduced to $10,279.

Other Information

Plaintiff's counsel will file a bill for pre-C.C.P. Section 998 costs, estimated at $6,500. Defense counsel will file a bill for costs and expert fees, totaling approximately $10,000. Cost bills have been filed and motions to tax, as well as a motion for a new trial, were filed.

Deliberation

one day

Poll

12-0 (on McDermott's negligence); 10-2 (on causation); 12-0 (on economic damages award); 10-2 (on noneconomic damages award); 12-0 (on Cannon's comparative negligence); 11-1 (on apportionment)

Length

one week