Confidential
Settlement – $500,000Judge
Court
Santa Clara Superior
Attorneys
Plaintiff
Christian B. Nielsen
(Office of the San Jose City Attorney)
Defendant
Douglas A. Sears
(Matheny, Sears, Linkert & Jaime LLP)
Stephen H. Schmid
(Office of the Santa Clara County Counsel)
Experts
Plaintiff
David M. Yoshida M.D.
(technical)
Curt P. Comstock
(medical)
Kenneth Ziedman
(technical)
Donald L. Asa
(technical)
Defendant
William F. Blythe
(technical)
Marvin Lipton
(medical)
Herbert A. Moskowitz
(technical)
Facts
On Feb. 21, 1994 at approximately 11:30 p.m., the plaintiff, a _-year-old ________ (occupation) was injured when the defendant's rental truck in which she was a passenger and which was driven by her defendant father, rear-ended a tractor-trailer combination, which was stopped on the northbound Interstate 5. The tractor-trailer was driven by the defendant driver and owned by the driver's defendant employer. The defendant driver parked the vehicle in the emergency parking lane, approximately two to three feet east of the fog line for the northbound No. 2 lane of Interstate 5. The plaintiff claimed the vehicle was on the fog line. The vehicle was parked so that it was partially on gravel on asphalt and roughly straddling the asphalt drainage berm. At the moment the accident occurred, the plaintiff was asleep and was not wearing a seat belt. It was claimed that had the plaintiff been wearing a seat belt, she would have been killed in the impact. The defendant rental truck was approximately five feet east of the fog line when it struck the left rear of the 63-foot trailer causing and destroying the entire front side of the rental truck. The plaintiff was thrown onto the floorboard. She was subsequently transported by helicopter to Valley Medical Center in Fresno. The plaintiff brought this action against her father, the driver of the tractor-trailer, the defendant driver's employer and the truck rental company based on negligence, respondeat superior and joint employee theories of recovery.
Settlement Discussions
The plaintiff made a C.C.P. º998 settlement demand for $_____________ . The defendant driver of the tractor-trailer and his employer made no settlement offers until the court ordered settlement conference when they offered $225,000 new money.
Specials in Evidence
$143,000
Injuries
The plaintiff alleged x-rays revealed a C2 vertebral body fracture with anterior subluxation of C3, a transverse displaced right femur fracture, an open grade 3 comminuted right tibia and fibula fracture, a closed left transverse tibia and fibula fracture and bilateral patellar dislocations. She underwent repair of the patellar tendon of the right knee, closed intramedullary rodding of the right femur, closed intramedullary rodding of the left tibia, a closed reduction of the right patellar dislocation. She wore a halo brace for the cervical fracture for approximately 90 days. She made a good recovery from her injuries and she is not disabled from any recreational or work activities. Future surgery to correct her ankle- heel contractive condition was contemplated. The plaintiff claimed she also required surgery to both knees to correct a bilateral knee dislocation condition. She also suffered scars on her legs, face and ear.
Other Information
The verdict was reached approximately one year and ten months after the case was filed. A settlement conference was held in September 1996 before Judge Jeremy Fogel resulting in the reported settlement. At the accident scene, the plaintiff's father, the defendant driver of the rental truck in which the plaintiff was passenger, allegedly told the police and paramedics he fell asleep while driving northbound on Interstate 5. Defendant Gaines told the police officer he had pulled to the side of the road to urinate, but at the time of his deposition said he had pulled to the side of the road to stop and investigate whether his brakes were smoking. The speed of plaintiff's vehicle at the time of impact was 55 to 66 miles per hour.
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