Facts

Plaintiff John Hernandez was on the job delivering repaired diesel pumps to customers. He was driving a 2002 Ford Ranger. He exited the 60 freeway westbound to enter the 5 freeway northbound. The vehicles ahead of him were stopping. While his vehicle was stopping, he was rear-ended by a Los Angeles County Metropolitan Transportation Authority bus (2001 Newflyer) driven by defendant Linda Lipovski McCowen. Two months later, Hernandez's left shoulder was diagnosed with rotator cuff tear. Three months later, he had left shoulder surgery.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended (and defendants agreed) that defendants were negligent. The plaintiff contended that the motor vehicle accident was a substantial factor in causing his left shoulder problems and surgery.

DEFENDANTS' CONTENTIONS:
The defendants contended that, because there was minimal damage to the vehicles, the motor vehicle accident could not have been a substantial factor in causing the rotator cuff tear. Defendants also contended the rotator cuff tear resulted from years of repetitive use and degeneration which plaintiff's doctors conceded was preexisting. Defendants also contended that the plaintiff was contributorily negligent.

Settlement Discussions

There were two mediations. Plaintiff's demand was $112,500 later reduced to $50,000 via a C.C.P. Section 998. In the first mediation, the defendants made no offer. In the second mediation, the plaintiff made a settlement offer of $30,000. The defendants offered $20,000. A few days before trial, the defendants issued a C.C.P. Section 998 for $25,000.

Specials in Evidence

$16,990; $6,800;

Damages

There was minimal damage to plaintiff's vehicle. The cost of repair was $575. There was no damage to defendant LACMTA's bus.

Injuries

Hernandez alleged that, as a result of the impact, he suffered a rotator cuff tear and left shoulder surgery in December 2006. The defendants alleged that, since the property damage was minimal, the rotator cuff tear could not have been caused by this incident.

Result

Verdict of $37,790.

Other Information

EXPERT TESTIMONY: Dr. Robert Reisch, M.D., the treating orthopedist, testified that the MRI and the surgery indicated that the rotator cuff tear was traumatic. Since plaintiff had no history of left shoulder problems, it was probable that this incident did cause the rotator cuff tear. He admitted that plaintiff had very significant degeneration and spurring before the accident. Dr. John Gardiner, Ph.D., testified that the impact caused a D.V. of 5-7 miles per hour-an impact sufficient to cause rotator cuff tear. Dr. Stephen P. Kay, M.D., asserted his opinion that, even though the plaintiff never had left shoulder pain or treatment before this incident, his left shoulder rotator cuff was torn before this incident and that the tear was the end-stage of his pre-existing impingement syndrome. Dr. Anil Khadilkar, Ph.D., testified that the impact was unlikely to have caused shoulder injury, since the bumper was merely pushed downward by the bike rack or the front of the bus. FILING DATE: June 4, 2007.

Deliberation

4.5 hours

Poll

12-0 (substantial factor in favor of plaintiff), 12-0 (economic damages in favor of plaintiff), 9-3 (non-economic damages in favor of plaintiff)

Length

five days