by Eustace de Saint Phalle, Rains Lucia Stern, PC
In the United States there are approximately 10,000,000 auto accidents with over 30,000 fatalities every year.
Through superior knowledge of accident investigation and medicine, lawyers who handle personal injury matters for RLS obtained the following recovery for a former Oakland PD officer and Alameda County District Attorney Investigator.
Since many in our community are knowledgeable about vehicular accidents and the injuries they cause, we felt this case study might be both interesting and informative for our clients.
Plaintiff, a former OPD officer and Alameda DA investigator, was in three rear end motor vehicle accidents (“MVAs”) in a ten month span: July 24, 2008; April 24, 2009 and May 14, 2009. Plaintiff was in the course and scope of her employment driving a Chevrolet Impala in each MVA, and received workers’ compensation benefits.
After the third MVA, plaintiff was promoted to Lieutenant of Inspectors. Due to upper extremity weakness and tingling in her fingers bilaterally, Plaintiff was forced to take a medical retirement in December 2011.
Plaintiff alleged the three MVAs caused indivisible injuries to her cervical spine requiring career ending cervical arthroplasty at C 4–5 and C 5-6 with need for artificial disk replacement surgery. Thus, plaintiff contended each responsible party was liable for all of her injuries unless they could prove their limited responsibility pursuant to Brown v. Guy, (1956) 144 Cal.App.2d 659, 666 and Katenkamp v. Union Realty Co., (1940) 36 Cal.App.2d 602, 618.
MVA: July 24, 2008
The first Defendant rear ended plaintiff in stop and go traffic approaching the Caldecott Tunnel on East Bound Highway 24 at approximately 8:00 a.m. Plaintiff contended impact speed was 10–12 mph. Damage to her car was $1,300.00. Defendant 1 contended impact speed was 3–5 mph, below the threshold for cervical disk injury. Plaintiff did not report an injury to the investigating officer. Several months later she began treatment for progressively worsening neck pain.
MVA: April 24, 2009
Plaintiff was parked in downtown Oakland outside the main courthouse. The second Defendant hit plaintiff while trying to pull in to a parking space behind her. Plaintiff alleged the impact speed was 3–5 mph. Plaintiff felt immediate exacerbation of neck pain. Defendant 2 did not dispute these assertions.
MVA: May 14, 2009
The third Defendant, in the course and scope of his employment with Acme Press, Inc., struck plaintiff in stop and go traffic on northbound I–680 at approximately 5:00 p.m. just south of Sycamore Valley Blvd. Plaintiff alleged the impact speed was between 8–10 mph. Damage to her car was $380.00. Defendant 3 contended the impact speed was 3–5 mph. Plaintiff reported exacerbation of neck pain to the investigating officer.
Plaintiff did not immediately seek treatment related to the July 24, 2008 accident. In March 2009, plaintiff’s family practitioner referred her for PT for left epicondylitis, an inflammation of the elbow. At physical therapy, the therapist noted possible radicular symptoms from C 5-6 nerve root.
On April 24, 2009, Plaintiff saw her Family Practitioner. Because of her self report of neck pain and the PT note, her doctor made a referral to a physiatrist for nerve conduction velocity and electomyography (“NCV/EMG”). The April 24, 2009, MVA occurred about one hour after this appointment with her doctor.
On May 18, 2009, Plaintiff again saw her doctor. She reported exacerbation of neck pain following the May 14, 2009 MVA.
Throughout the next year, Plaintiff underwent cervical MRI which showed degenerative disc disease in her cervical spine to include desiccation and osteophytes. Initial NCV/EMG was negative for cervical radiculopathy but positive for carpal tunnel. Repeat NCV/EMG a year later was positive for chronic cervical radiculopathy bilaterally. Plaintiff failed conservative treatment which included physical therapy and epidural injection. On March 21, 2011, Plaintiff underwent cervical arthroplasty at C 4–5 and C 5-6 with artificial disk replacement. Surgery was successful. Following surgery, Plaintiff experienced minimal post operative discomfort and regained complete range of motion. She continued to suffer residual hand tingling/numbness.
During the litigation, plaintiff asserted she suffered from a career ending cervical spine injury that resulted in arthroplasty surgery; that the surgical repair of her spine prevented her from performing her required job tasks including arresting and controlling suspects and arrestees; and that her medical retirement was caused by the injuries from the three accidents. She endured over a year of neck and arm pain from the accidents, but acknowledged an excellent surgical result.
Past medical damages were $98,000. Future claimed medical expenses were: $125,000 for revision surgery.
Plaintiff suffered past wage loss of $150,000. Plaintiff claimed she would have been promoted to Captain in 2012. She claimed early retirement resulting in future wage loss range of $700,000 -$1,100,000. Defendants argued there was no wage loss and she could return to work.
Defendant 1 and Defendant 3 argued plaintiff sustained no more than cervical sprain in each respective accident; the forces involved were insufficient to cause cervical structural injury; plaintiff had pre-existing degenerative condition from high speed work related MVA in 1984 when she was struck by a drunk driver; plaintiff’s cervical spine disease was also due to wear and tear of life including vigorous law enforcement training, participation in athletic endeavors and regular running; and plaintiff was destined for cervical spine surgery irrespective of MVA as she had been intermittently symptomatic for more than a decade with recurrent radicular symptoms.
As to wage loss, defendants claimed plaintiff could return to all required job tasks as Lieutenant of Inspectors since the surgery was a success. Defendants also claimed the possible promotion to Captain was speculative. Finally, defendants introduced evidence and the Court permitted via in limine motions the ability to argue peace officers typically retire with between 25 – 30 years of service. As plaintiff had 27 years experience, they argued any wage loss was limited to at most three years or $450,000.
On the second day of trial, plaintiff accepted $700,000 from Defendant 3. On the third day of trial, plaintiff accepted $75,000 from Defendant 1. Plaintiff proceeded to Judgment against Defendant 2, receiving $1,700,000. After reduction for pre-trial settlements and based upon an apportionment of fault of 15% on Defendant 2, plaintiff obtained a Judgment for $767,357.50 from Defendant 2.