Facts

On Dec. 24, 2013, plaintiff Edwin Alvarez, 36, was driving a 2011 Nissan Altima southbound on Highway 154 approximately 2.5 miles east of Lake Cachuma, after having left the Chumash Casino. Defendant James Nielsen was operating a 2005 Ford F-450 truck, while in the course and scope of his employment with Santa Ynez Feed & Milling. He had delivered hay to a farm just off highway 154. Leaving the farm, he drove down a dirt-improved driveway and while attempting to make a left onto highway 154 travelling northbound a collision occurred with plaintiff.

Plaintiff filed suit against Nielsen and his employer, Santa Ynez Feed & Milling.

PLAINTIFF'S CONTENTIONS:
Plaintiff was traveling between 40-45 miles per hour and Nielsen was accelerating right to the point of impact. Rather than hit his breaks or turn his vehicle away from the oncoming car, he accelerated as fast as possible trying to get around plaintiff's oncoming vehicle. His maneuver was not successful and a substantial impact occurred.

As a result of his injuries, plaintiff was unable to continue in his prior employment. He had worked a part time position doing maintenance work and a full time job, which involved heavier labor on an assembly line.

DEFENDANTS' CONTENTIONS:
Nielsen testified that he looked both ways, did not see any oncoming traffic and proceeded to make a left turn. While initiating the left turn, he saw plaintiff's vehicle approaching, and he misjudged the speed and distance of the approaching vehicle.

Settlement Discussions

In February 2015, plaintiff's CCP 998 offer to compromise in the amount of $1 million was rejected by defendants. Plaintiff has submitted a cost bill in the amount of $279,455. Of this amount, approximately $200,966 is attributed to interest on the rejected CCP 998 offer to compromise. According to plaintiff, the defendant's offered $500,000 to settle the case and at a final MSC prior to trial, the defendant's offered $700,000 to settle the case. The defendants offer was rejected and the parties proceeded to trial.

Damages

Plaintiff's damages at trial included past medical expenses in the amount of $484,000. Plaintiff further claimed the need for future medical care and expenses. Pursuant to a life care plan prepared by Patty Hedrick, RN in consultation with Dr. Richard Kahmann, the life care plan had future medical costs in a range from $133,700 to $214,300. Plaintiff claimed past loss of income in the amount of $49,440 and future loss of earning capacity over his lifetime in the amount of $700,000. Plaintiff also claimed loss of his ability to perform household chores and services. At trial, defendants, through their expert witness, Jan Roughan, argued that the total amount of reasonable medical expenses incurred to date was only $160,358. Defendants' expert also submitted a future life care plan and argued that future medical costs were $22,624. Defendants, through their vocational rehabilitation expert John Meyers, argued that plaintiff was fully capable of his pre-accident level of employment, even though the defense medical expert imposed substantial restriction on future work related activities including no repetitive lifting in excess of 20 pounds and no repetitive bending, stooping, twisting or climbing. In the deposition of Dr. Borelli taken two weeks prior to trial, Dr. Borelli was of the opinion that plaintiff had fully recovered and did not require further treatment. Dr. Borelli reported to Meyers that plaintiff was essentially pain free and that pain would not be a factor limiting his future employment. Defense economist, David Weiner, based his opinions on information provided to him by John Meyers. Weiner testified that plaintiff's past loss of income was $19,146 and that his future loss of earning capacity was $102,500.

Injuries

Plaintiff was transported via ambulance from the scene to Santa Barbara Cottage emergency care. Chest x-rays and CT of the abdomen were negative of any fractures. Two weeks later, plaintiff first consulted Dr. Sonny H. Okada, a chiropractor, with complaints of lower back pain, radiculopathy, right shoulder pain, neck pain and headaches. After several weeks of physical therapy with no relief, Dr. Okada referred plaintiff for an MRI, which was positive for an L4-5 4-5 mm broad based posterior disc herniation. The MRI also noted an annular tear at the L4-5 disc with mild spondylosis and muscle spasm. Due to ongoing lower back pain, Dr. Okada referred plaintiff to Dr. Pejman Shirazi for an orthopedic evaluation and pain management. Dr. Shirazi initiated a series of three lumbar epidural injections. This did provide substantial but only temporary relief from the pain. After the epidurals were unsuccessful in providing long-term relief, Dr. Shirazi referred plaintiff for an orthopedic surgical evaluation. His opinion was that plaintiff would require a lumbar L4-5 fusion. In May 2014, plaintiff was referred to Dr. Moshe Wilker, a board certified orthopedic surgeon. Due to ongoing lower back pain with radiating numbness to the legs, and pain rated at seven over 10, Dr. Wilker reviewed the prior medical history, MRI findings and recommended an L4-5 interbody fusion. The fusion was performed on June 30, 2014 at the Miracle Mile Surgery Center. The procedure involved a two-level fusion at L4-5 and L5-S1. During follow up examination with Dr. Wilker, plaintiff continued to have complaints of right shoulder pain, and in May 2015, Dr. Moshe Wilker performed rotator cuff shoulder surgery with positive results. During follow-up examinations regarding the lumbar surgery, Dr. Wilker ordered a CT of the lumbar spine in June 2015 that showed a lack of a bony bridge and non-fusion at the L5-S1 level. Additional studies also showed broken screws at S1 bilaterally. Because of the non-fusion and the broken screws, Dr. Wilker recommended an anterior posterior revision fusion at L5-S1. Plaintiff requested a second opinion and was referred to Dr. Richard Kahmann. Dr. Kahmann evaluated plaintiff, reviewed the diagnostic studies, and agreed with the recommendation of Dr. Wilker. A lumbar CT scan was ordered by Dr. Kahmann, which was again positive for a non-fusion, and broken screws at L5-S1. On Jan. 22, 2016, plaintiff underwent revision surgery at Cottage Hospital. Dr. Kahmann testified at trial that all medical treatment rendered by all prior treating medical care providers were reasonable, necessary and were causally related to the auto accident and that the charges were usual and customary for the services rendered. Dr. Wilker who performed plaintiff's first lumbar fusion surgery testified why it was necessary and Dr. Kahmann who performed the revision surgery testified that all of the treatment rendered by Dr. Wilker was reasonable, appropriate and within the standard of care. All medical experts including the defendant's expert witness, Dr. Lawrence Borelli, agreed that under the best of circumstances and with the best surgeon one of the risks of a lumbar surgery included a non-fusion and broken screws if the fusion was not successful. The defense argued that the first lumbar fusion surgery was not necessary. The defense IME by Dr. Lawrence Borelli was done on Feb. 3, 2015. This was after the first lumbar surgery, but before the right shoulder surgery in May 2015 and the revision surgery in January 2016. In deposition two weeks prior to trial, Dr. Borelli acknowledged that he recently reviewed the records of Dr. Richard Kahmann and agreed with the need for the lumbar revision surgery. However, Dr. Borelli was still of the opinion that the need for the revision surgery was not related to the auto accident, but rather was related to the first lumbar surgery, which he did not think was necessary.

Result

The jury found in favor of the plaintiff and awarded him $312,914 in past medical expenses, $174,049 in future medical expenses, $49,440 in past loss of income, $500,000 for future loss of earning capacity, and $50,000 for loss of his ability to perform household chores and services. In general damages, the jury awarded $100,000 for past pain and suffering, and $250,000 for future pain and suffering. The net damage award was $1,436,403.

Other Information

The defendant filed a motion to tax costs, which was denied by the trial judge. FILING DATE: June 13, 2014.