Adham Ayesh, a minor v. Dean Martinez, Robin C. Berry dba Berry Brothers Automotive & Towing, J&E Liquor, Bassam Ayesh
Published: Feb. 13, 1999 | Result Date: Nov. 2, 1998 | Filing Date: Jan. 1, 1900 |Case number: 7667099 Verdict – $0
Judge
Mediator
Court
Alameda Superior
Attorneys
Plaintiff
Edward J. Wynne
(Wynne Law Firm)
Matthew Righetti
(Righetti Glugoski PC)
Defendant
Charles O. Thompson
(Polsinelli LLP)
Experts
Plaintiff
Patrick F. Mason Ph.D.
(technical)
Paul Kayfetz
(technical)
Scott Hoffinger
(medical)
Robert Haining
(medical)
Kenneth Ziedman
(technical)
Richard N. Stuart
(technical)
Patricia L. Speier
(medical)
Tom Guth
(technical)
Defendant
Edward D. Johnson
(technical)
Dennis J. Swigart
(technical)
Anthony C. Stein Ph.D.
(technical)
Joseph T. Capell M.D.
(medical)
David M. Yoshida M.D.
(technical)
Joanna Moss
(technical)
Facts
On March 27, 1997, at approximately 6:50 p.m., on Adeline Street in Berkeley, plaintiff Adham Ayesh, then aged 3 years and 4 months, was struck by a tow truck driven by defendant Dean Martinez in the course and scope of his employment with defendant Robin C. Berry dba Berry Brothers Automotive & Towing. As a result of the accident, the plaintiff suffered a below the knee amputation of his right leg. Prior to the accident, the plaintiff had been in J&E Liquor located at 3400 Adeline where his father, defendant Bassam Ayesh, had been watching the store for his brother, Nayef Ayesh, who had taken a trip to the Middle East. Defendant Bassam Ayesh had asked one of the plaintiff's cousins, 13-years-old former defendant Eid Ayesh, to watch plaintiff. Eid Ayesh then took plaintiff outside the store, walked him across the street to a grassy median where other children ranging in ages from 6 to 13 were playing, left him and returned across the street by himself. According to defendant Martinez and two independent witnesses, including an off-duty Oakland police officer, at the time of the accident, it was dark and misty. Defendant Martinez was traveling at a speed of 20 to 25 mph with a disabled Federal Express van in tow when plaintiff ran across Adeline in front of him from the grassy median to J&E Liquor and was struck by the tow truck. The plaintiff brought this action against the defendants based on negligence.
Settlement Discussions
The plaintiff made a C.C.P. º998 settlement demands of $750,000 (as to defendants Martinez and Berry); $950,000 (as to defendant J&E); and $1 million policy limit (as to defendant Bassam Ayesh). Defendants Martinez and Berry made a C.C.P. º998 offer of compromise for $100,000. Defendants J&E and Bassam Ayesh offered $400,000, combined, in addition to the $300,000 homeowner's policy limit previously paid on behalf of former defendant Eid Ayesh.
Specials in Evidence
According to the plaintiff - $75,162.54 According to the plaintiff - $106,930 (future surgeries); $28,635 (future psychiatric care); $1,014,435 (future prosthetic devices). According to the defendant - $300,000 (future prosthetic devices)
Damages
The plaintiff's attorney asked the jury to award $1,150,000 in future medical and prosthetic costs plus $6 million in general damages. The defendant's attorneys asked the jury to award $450,000 to $500,000 in future medical and prosthetic costs plus an equal amount or less in general damages.
Injuries
The plaintiff's doctors stated that plaintiff will require 2 to 3 future surgeries as he grows and plaintiff's prosthetist opined that he will require 68 prosthetic devices during his lifetime at a cost of approximately $1 million. The plaintiff's psychiatrist also testified that plaintiff will require over 200 psychotherapy sessions as he progresses to young adulthood. The defendant's doctor stated that although the proposed future surgeries were appropriate, the number of proposed prosthetic devices was far in excess of reasonable. The defendant's prosthetist testified that future prosthetic needs were in the area of $300,000.
Other Information
The verdict was reached approximately two years and six months after the case was filed. A mediation was held on Jan. 14, 1998, before mediator Bruce Edwards of JAMS/Endisputes, resulting in no settlement. In addition, unsuccessful pre-trial and mid-trial settlement conferences were held with the Hon. Ken M. Kawaichi and the Hon. Joseph Carson. Defendants Martinez and Berry anticipate filing a cost bill pursuant to C.C.P. º998 in the amount of approximately $50,000. The plaintiff's motion for attorney's fees under C.C.P. º2033 (o) and prejudgment interest under C.C.P. º99 have been tentatively granted subject to a possible hearing.
Deliberation
approximately four or five days
Poll
9-3
Length
approximately 14 or 15 days
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