Facts

On June 11, 2005, at 11:15 a.m. on the southbound 405 freeway in Van Nuys, claimant Jill Von Kessler was driving a 2000 Ford Expedition southbound in the number four lane. Traveling directly in front of Von Kessler was respondent Patricia Duarte driving a 1992 Toyota Corolla.

Von Kessler contended that, suddenly and without warning, Duarte swerved to the left and out of the number four lane, to avoid traffic that had come to a halt in front of her. In doing so, Duarte caused her vehicle to spin out of control and return directly in front of Von Kessler's vehicle. Von Kessler was forced to steer to the right to avoid colliding with Duarte's vehicle, causing her Expedition to roll over and come to rest on its roof. Von Kessler was wearing her seatbelt at the time of the accident and her vehicle's airbag deployed on impact.

CLAIMANT'S CONTENTIONS:
Von Kessler contended that Duarte caused the accident by driving her vehicle in violation of California Vehicle Code section 22107 (unsafe turning movement). Von Kessler contended that Duarte's sudden lane change forced Von Kessler to steer sharply to the right, in order to avoid colliding with Duarte's Corolla, and caused Von Kessler's vehicle to roll over and the resulting injuries.

RESPONDENT'S CONTENTIONS:
Duarte did not dispute liability, but disputed the nature and extent of Von Kessler's injuries.

Specials in Evidence

$281,884 Approximately $100,000 (47 months). Duarte's carrier paid $50,000 (policy limits) and the claimant's carrier, USAA paid $50,000 in medical expenses prior to mediation.

Injuries

As a result of the crash, Von Kessler lost consciousness. She was immediately taken to the emergency room at Holy Cross Hospital. There, she complained of headache, nausea, and dizziness, in addition to pain in her neck and back, some amnesia and problems with her orientation. The following day, Von Kessler developed increasing headaches, dizziness, and nose bleeds, in addition to increased nausea and neck and back pain. She was taken to the emergency room at Henry Mayo Medical Center. The diagnosis was post-concussion syndrome and a CT scan of her head and neck were taken. She then underwent a regimen of physical therapy, which was unsuccessful. Von Kessler was diagnosed with cervical disc disease at C5-6, C6-7, which caused cervical radiculopathy, chronic cervical musculoligamentous strain, and muscular contraction headaches. She received epidural steroid injections, which provided temporary relief. In April 2006, the effects of her last epidural steroid injection began to wear off and she was again experiencing severe pain in her neck, as well as the ongoing problems in the lumbar spine area, which started with a couple months of the incident. CT scans and an MRI of the cervical spine and lumbar were taken and showed 2 mm disc bulges at C5-6 and C6-7 levels, with minor hypertrophic unconvertible joint disease. As to the lumbar spine, a 7-9 mm disc protrusion was noted at the L4-5 level with mild spinal stenosis. With no lasting improvement in her condition, despite numerous attempts at conservative therapies, further MRIs were ordered which revealed degenerative disc disease at C5-6 and C6-7, both with posterior bulges, and severe spinal stenosis at L4-5. Based on these findings, Dr. Carl Lauryssen, M.D., recommended a two-level ProDisc cervical disc replacement. Von Kessler underwent surgery in January 2009, which consisted of anterior cervical discectomy at C5-6 and C6-7, foraminotomy laterally at C5-6 and C6-7 from an anterior approach, resection of the posterior osteophytes adjacent to the spinal canal and spinal cord at C5-6 and C6-7, insertion of ProDisc C, and cervical arthroplasty at C5-6 and C6-7. This surgery improved her pain syndrome significantly, although she still has periodic symptoms. Von Kessler has continuing complaints of pain across her lower back, which radiates into her buttocks, right hip, and right leg. The pain travels through the front of her leg and reaches her ankle, accompanied by aching and pins-and-needles sensation. The pain stemming from her lower back is aggravated by bending, lifting, and sitting or standing for periods of 30 minutes or more, at which point, she feels dizziness and experiences a loss of balance. No surgery, however, was recommended for her lumbar area.

Result

The case settled before arbitration for $750,000 (new money) before Janet R. Fields, Esq.