Facts

On Feb. 5, 2004, the claimant was involved in a head-on collision in Calabasas on surface streets. The adverse driver had a $15,000 policy, which was tendered. The claimant had $250,000 in underinsured motorist coverage with The Hartford and a $5,000 med-pay.

CLAIMANT'S CONTENTIONS:
The claimant's expert witness, Dr. Jacob Tauber, an orthopedic surgeon, testified that the claimant would likely need decompression and a fusion at L5-S1.

RESPONDENT'S CONTENTIONS:
The respondent's expert, Dr. Martin Krell, a neurosurgeon, testified that claimant's herniated disc pre-existed the incident and that her post-incident symptoms that necessitated the need for either pain management or surgery were not caused by the accident.

Settlement Discussions

Less than a week before arbitration, Hartford offered $110,000 total. The claimant's demand has always been for $240,000, which totals the $250,000 UM coverage, the $5,000 med-pay with the $15,000 offset.

Specials in Evidence

$12,000; $100,000;

Damages

Claimant's property damage to her vehicle was in the sum of $10,590. The air bags in her vehicle did not deploy in the course of the accident. According to respondent's counsel, in his arbitration brief, claimant's attorney requested an arbitration award in the sum of $750,000 plus costs and med pay.

Injuries

Claimant had a substantial disc herniation at L5-S1, and she received evaluation and treatment for low-back pain in 2003, prior to this accident. She alleged that she was pain-free and functioning at a very high level after the subject accident, trying to deal with moving her household and attending to some family problems. According to respondent's counsel, claimant testified that she continued to function at a very high level after the subject accident, trying to deal with moving her household and attending to some family problems. According to respondent's counsel, claimant had a significant history of low-back pain prior to the accident, there were substantial gaps in treatment, and the only actual treatment claimant received was month of physical therapy and some epidural injections.

Result

$255,000 (gross), $240,000 (net) from an off-set of $15,000 from the tortfeasor's policy limit. The underinsured motorist coverage policy limit was $250,000 plus $5,000 med-pay.

Other Information

Respondent's expert, Dr. Martin Krell criticized the claimant's three and a half years before deciding to pursue surgery. Dr. Krell testified that claimant did not need surgery and that her symptoms could not be as bad as she said, otherwise she would have had surgery sooner. He opined that a symptomatic herniated disc pre-existed this incident despite the fact that no one diagnosed her with a herniated disc before the accident; there was never any complaint of radiating pain and numbness into her buttocks and legs before the accident; despite the fact that she had an active and fit lifestyle including the last nine months up until the time of the accident. Dr. Krell also opined that because claimant's general regular treating physician noted complaints of numbness to claimant's feet in mid 2003, approximately nine months before the incident, that this meant that claimant had a symptomatic herniated disc. Dr. Krell did acknowledge in his video taped deposition that claimant's symptoms after the incident were at the very least, an exacerbation of a pre-existing condition. He acknowledged that he told this to Hartford's attorney. This, however, was not contained in Dr. Krell's report and was not flushed out in the deposition until Dr. Krell was confronted in his video taped deposition with having to acknowledge that he was suspended from the American Association of Neurosurgeons for two years and that he is currently under suspension for giving highly inappropriate and unprofessional expert testimony.