Facts

This lawsuit arises from an accident, which occurred on Dec. 12, 2002, on defendant J. Pacific Inc.'s premises. Plaintiff Major Dodson, who was self employed in the scrap metal business, was picking up large cylinder scrap metal tanks from defendant's premises.

Prior to the incident, two of defendants' employees were using forklifts to load large cylinder pieces onto the flatbed of plaintiff's truck. This incident occurred when one of the employees caused a large metal cylinder piece to slip off the forklift causing it to drop onto plaintiff's flatbed truck and rolled off it. Major Dodson, who was standing behind his flatbed truck, ran for cover in order to avoid the falling large cylinder piece, which was springing out of control toward him. Dodson fell and landed against two fire plugs.

PLAINTIFF'S CONTENTIONS:
After the incident, Major Dodson fell two additional times on Jan. 7, 2003 and Jan. 24, 2003. Following his fall on Jan. 24, 2003, Dodson was admitted to the emergency room at Robert Kennedy Medical Center where he later underwent cervical surgery on Feb. 4, 2003.

The plaintiff's neurosurgeon testified that Major Dodson sustained a cervical cord injury as a result of his fall on Dec. 12, 2002. Due to the cervical cord injury, Dodson suffered from myelopathy or weakness of the extremities, which led to his two subsequent falls.

DEFENDANT'S CONTENTIONS:
The defendant retained two medical experts to contest causation of injuries.

Michael Wienir opined that plaintiff did not sustain an acute injury as a result of his Dec. 12, 2002, fall. He testified to a medical degree of probability that Major Dodson's subsequent falls after Dec. 12, 2002, was due to diabetic neuropathy.

Stephen Rothman, M.D. testified at the first trial that Dodson's cervical MRI does not depict an acute injury but a preexisting degenerative condition that predated the subject incident.

Damages

Medicare paid approximately $16,000 for the cervical surgery. The remaining physical therapy bills on a lien totaled $10,240.

Injuries

The plaintiff sustained a cervical cord injury and underwent the removal of a herniated disc in his cervical spine and an insertion of a metallic plate following his Jan. 24, 2003, fall. Following his cervical surgery, Dodson also underwent physical therapy for almost a year.

Result

The matter was settled for $65,000 before retired Judge Paul Flynn at ADR a month before the start of the second trial on damages only, with comparative fault of 50 percent already decided against the plaintiff in the first trial.

Other Information

The first trial occurred on May 12, 2005. The jury returned a verdict of $16,679 for cervical surgery and zero for pain and suffering. The jury also found plaintiff to be 50 percent at fault for a net verdict of $8,340. The plaintiff filed a motion for new trial or an additur, which was denied by the court. The plaintiff appealed. The Court of Appeal subsequently granted plaintiff's motion for new trial on damages only. We hold that where a plaintiff has undergone surgery in which a herniated disc is removed and a metallic plate inserted, and the jury has expressly found that the defendant's negligence was a cause of plaintiff's injury, the failure to award any damages for pain and suffering results in a damage award that is inadequate as a matter of law. (See Major Dodson v. J. Pacific, Inc., Case Number B186416).