Facts

Plaintiff and defendant were involved in a rear-end accident which occurred on Aug. 19, 2019 on El Toro Road in Laguna Hills. Plaintiff alleged she was stopped at a red light when she was rear-ended by defendant's vehicle and that plaintiff's vehicle was pushed into the car in front of her. Defendant testified that she took her foot off of the brake and rolled into the back of plaintiff's vehicle. The impact was minimal.

PLAINTIFF'S CONTENTIONS: Plaintiff testified that she was stopped at the time of the impact and that her foot was pressing hard on the brake.

Plaintiff argued the neck surgery and the shoulder surgery were caused by the accident on August 19, 2019.

She told the jury that since the accident, she has been unable to act or sing. In fact, her attorney even played the jury a song plaintiff recorded ("From this Moment" by Shania Twain) in 2010. Plaintiff's attorney also played voiceover work plaintiff did in 2016. The jury was shown a photograph of plaintiff rock climbing in 2015-2016. The only thing the jury was shown of the plaintiff in the year before the fender bender was a photograph of plaintiff in workout clothes; plaintiff told the jury this photograph was taken one day before the accident allegedly at the request of an agent for a commercial.

Plaintiff's biomechanic expert, Christopher Furbish admitted that there was not enough force to cause a structural injury to the spine, but that the accident could have made plaintiff's prior condition in the cervical spine worse. He also testified there was sufficient force to cause plaintiff's shoulder injury.

Dr. Berkowitz testified that plaintiff's shoulder surgery was appropriate.

Dr. Spoonamore performed plaintiff's cervical spine surgery.

DEFENDANT'S CONTENTIONS: Defendant contended that plaintiff's vehicle was actually moving at the time of the impact. On cross-examination, plaintiff's biomechanic expert, Christopher Furbish, agreed to that contention.

Defendant argued that plaintiff's neck surgery and shoulder surgery were not related to the subject accident. Defendant also argued that although plaintiff ultimately received treatment and surgery from physicians at USC Keck Medicine, her treatment began as attorney referred treatment on a lien. Defendant told the jury that plaintiff had longstanding degenerative changes in the spine and shoulder that were not made worse by the subject accident. Defendant showed the jury that this was a minor "fender bender" and that there was no way plaintiff was injured and there was no way that plaintiff's condition was made worse by the subject accident.

Defendant argued to the jury that plaintiff did not provide any evidence of auditions or performances that plaintiff did in the six months to one year before the fender bender.

Defendant also showed the jury that after the fender bender, none of plaintiff's doctors ever told plaintiff that plaintiff could not work and that plaintiff's doctors never even put any restrictions on plaintiff's work. Plaintiff admitted on cross-examination that she was never on disability after this fender bender.

Plaintiff also told the jury that prior to acting, she worked "hands on" in construction and she admitted on cross-examination that this work was physically intensive and that she was building houses.

Defendant testified that she repeatedly asked plaintiff if she was ok at the scene and plaintiff repeatedly responded that she was fine. Plaintiff even hugged defendant at the scene and told defendant that everything will be okay. Defendant testified that the next time she heard from the plaintiff was when your insured was served with this lawsuit.

Plaintiff admitted on cross-examination that she did not call the police at the scene and she did not call 911. She also admitted that the air bags in her car did not go off and the back window of her car did not break. She was able to open her trunk at the scene and she was able to get out of her car on her own. Plaintiff also admitted that she felt the seatbelt restrain her "tightly." In fact, she explained that the seatbelt grabbed her and held her back so hard that she had some red marks from the seatbelt.

Plaintiff confirmed that she denied an ambulance at the scene and that she felt guilty from taking an ambulance from someone who was "really mangled" and needed an ambulance more than she did. She did not go to the hospital on the day of the accident and she never went to a hospital. She did not see her doctor, but plaintiff tried to explain that she only saw her regular doctor for homeopathic reasons. However, defendant impeached plaintiff with her deposition testimony that she is still a patient of her regular doctor.

Plaintiff testified that she went to a medical facility on the day of the accident, but she left and went to her friend's house to sleep. She also told the jury that her pain was increasing while she was sitting at the medical facility. Defendant argued to the jury that plaintiff left a medical facility where doctors could have helped her because nothing was wrong with her.

Plaintiff admitted that she was seeing a chiropractor, a massage therapist and an acupuncturist before the fender bender and that she was seeing these people for her "whole skeletal system."

All of plaintiff's doctors testified that they were never told plaintiff was under the care of these providers before the fender bender. Defendant told the jury that plaintiff never saw these providers she was already treating with.

Defendant showed the jury that before plaintiff received treatment at USC, her prior attorney, Paula Norman, referred plaintiff to several medical providers who treated plaintiff on a lien. Defendant brought to the jury's attention that they never heard from these providers because after the accident, plaintiff's attorney set in motion a medical build up for litigation purposes. The jury did not see any bills from these doctors and defendant told the jury that the plaintiff did not want the jury to see these bills because they are ridiculously high. Defendant showed the jury that all of these bills were sent to plaintiff's attorney.

On cross-examination of plaintiff, defendant brought out all of the treatment that plaintiff received before going to USC. Defendant showed the jury that during plaintiff's treatment at Silver Lake Chiropractic, her neck was improved. Defendant also showed the jury that plaintiff received the same treatment at the same time at Silver Lake Chiropractic and Pure Precision Chiropractic.

Defendant showed the jury that plaintiff denied numbness and tingling and that she never had more than 5/10 neck pain and that all of the examinations of the neck and shoulder were normal.

Defendant showed the jury that all of the doctors who testified on plaintiff's behalf at trial had a stake in the outcome based upon the amounts they were paid for their treatment of plaintiff and their testimony at trial. In fact, Dr. Berkowitz flat out admitted that he has a stake in the outcome.

Plaintiff's two friends testified on her behalf and each of them admitted that they wanted their friend to win money in this case.

On cross-examination, Mr. Furbish admitted that there is an inconsistency in his analysis of the date and plaintiff's testimony. Plaintiff claims she was topped and bracing with her boot on the brake at the time of the tap from defendant's vehicle. However, Mr. Furbish admitted that the data he obtained from plaintiff's vehicle shows plaintiff was not stopped and that plaintiff was not pressing hard on the brake.

Mr. Furbish also admitted that the black box in Prius vehicles such as plaintiffs have a tendency to be inaccurate and these inaccuracies put this fender bender into the safer speeds he explained for testing.

Mr. Furbish's most telling testimony is his admission to the jury that he would not expect a mechanism from this fender bender to cause a bulge or herniation in plaintiff's neck. He tried to tell the jury that he could not rule out an aggravation of plaintiff's pre-existing condition in the neck. However on cross-examination Mr. Furbish admitted that as a biomechanic, he cannot give an opinion about aggravation. In fact, he testified that there is no way to know how much force it takes to aggravate plaintiff's condition.

Mr. Furbish testified that here was sufficient force to cause plaintiff's shoulder surgery. However, he admitted that the forces in this fender bender were the same loads as plaintiff doing a push up or pushing herself out of a chair. He also testified that by not being aware that a fender bender was going to occur, there would be lower forces on plaintiff's upper extremities.

While Mr. Furbish tried to tell the jury that the damage to plaintiff's and defendant's vehicles was worse than it actually looked, he admitted on cross-examination that he has testified for defense counsel in other cases that just because there is frame or unibody damage does not mean there was a high impact.

Dr. Berkowitz did not perform plaintiff's shoulder surgery. The surgery was performed by Dr. Hatch at USC Keck. However, plaintiff did not call Dr. Hatch to testify. He admitted on cross that his examinations and Dr. Hatch's exams were normal. Dr. Berkowitz talked about plaintiff's two shoulder MRIs. He admitted that the 10/8/19 MRI did not show a rotator cuff tear and when he saw plaintiff on 2/10/20 he confirmed to plaintiff that the MRI did not show a rotator cuff tear. In fact, Dr. Berkowitz did not notate any kind of tear in the right shoulder in the 10/8/19 MRI.

Plaintiff had a second shoulder MRI on 12/18/21. All of sudden, Dr. Berkowitz saw a biceps tendon tear in the subsequent MRI. He tried to tell the jury that the biceps tendon tear was caused by the accident, but on cross-examination, he admitted that the biceps tendon tear was not in the 2019 MRI.

Defendant argued Dr. Spoonamore never recommended conservative care before surgery. He admitted that plaintiff's neck MRI showed longstanding degenerative changes and that these changes are the same changes you would expect to see in a woman of plaintiff's age. He also admitted that he sent plaintiff for an EMG/NCV that did not show radiculopathy. All of Dr. Spoonamore's exams of plaintiff were normal. He testified plaintiff did not need future treatment. He even testified plaintiff can sky dive.

Plaintiff was in a subsequent accident one year later. She never told any of her doctors about the subsequent accident and she admitted her body was thrown to the right and her body hit the console in the subsequent accident.

Settlement Discussions

Plaintiff served a C.C.P. Section 998 Offer in the amount of $1.25 million. Plaintiff asked the jury to award plaintiff $6,213.577.

Damages

Stipulated damages were $95,593. Actual medical specials were $266,139

Injuries

Plaintiff is a 62-year-old actress and singer. She testified that the cervical spine surgery damaged her vocal cords and that she had to attend voice therapy at USC Keck. Plaintiff received epidural injections to the cervical spine and she ultimately underwent a C5-6 and C6-7 discectomy and fusion. Plaintiff also underwent surgery to repair a biceps tendon tear.

Result

$30,000 ($25,000 past medical specials; $5,000 past general damages; $0.00 future non-economic damages)

Deliberation

1.5 hours

Poll

9-3 past economic damages; 10-2 past non-economic damages; 12-0 future non-economic damages

Length

six days