Case details

Bus driver’s condition not aggravated by collision: defense





Result type

Not present

cervical, fusion, neck
In December 2011, plaintiff Marlene Luzier, a school bus driver in her 40s who worked for Cottonwood Union Elementary School, had just dropped off schoolchildren from the bus, so none were on it. She made a left turn onto Gas Point Road, heading toward the overpass for Interstate 5, in Cottonwood. However, about 300 yards after a previous stop, Luzier’s bus stopped at a second stoplight due to traffic from vehicles using the southbound I-5 off-ramp to turn left onto the overpass to go over the freeway or to turn right onto Gas Point Road. However, a Volkswagen Jetta operated by Cheryl Zambrana, who was traveling behind the bus, failed to stop. As a result, an underride collision occurred, whereby the front of Zambrana’s sedan went under the bus. The collision occurred at between 19 and 22 mph. Luzier claimed to her neck. Luzier sued Zambrana, alleging that she was negligent in the operation of her Volkswagen Jetta. Zambrana claimed that as her vehicle turned to follow the bus, a water jug fell to the floor of the car and she attempted to retrieve it. She claimed that once she looked up, she saw the bus was stopped and hit her brakes, but the underride collision occurred. Thus, Zambrana admitted liability for the collision., Luzier claimed that the accident aggravated her pre-existing degenerative disc disease at both C4-5 and C5-6, with C5-6 being worse. She alleged that she previously saw a chiropractor for her condition until June 2011, but then had to return to the same chiropractor three days after the collision. Luzier presented to the chiropractor 32 times over 3.5 months, from December 2012 until the end of April 2012, but ultimately underwent a single level fusion at the C5-6 level in July 2012, right after the school year ended on May 30, 2012. Luzier claimed that she initially had good results following the cervical fusion, but that later her problems switched to the C4-5 level after the first procedure at C5-6. Thus, she claimed that her neck problems were ongoing, causing her to take non-narcotic, prescription pain medications. Luzier alleged that she was stiff and sore and that she now has limitations, such as not being able to do yard work or help at the house with her husband. Luzier and her husband lived off the grid, so they hauled in their own water and used a generator for power when they needed it. However, she claimed that after the collision, she could not do anything. Luzier claimed that as a result, she will eventually require a second fusion surgery, this time at C4-5 level. She further claimed that despite her continued pain and limitations, she ultimately decided to return to driving the bus because she did not trust the replacement driver with her kids, which she felt were like her own. The plaintiff’s accident reconstruction/biomechanical expert agreed with the defense’s expert that there was 1 G of force involved, but that the delta-v was slightly higher, with a calculation of a delta-v at 3.0 to 3.1. The expert opined that although there are studies that showed that often there are no in low-impact collisions, he determined that, after inspecting the seat of the bus, the underride collision combined with the bus seat was the mechanism of injury. He noted that the subject bus seat was a bad seat, in that it was rigid, without a head rest, and was made of molded plastic. The plaintiff’s treating chiropractor testified that Luzier’s pain following the subject accident was different than her previous complaints. The plaintiff’s orthopedic expert opined that based on Luzier’s pre-existing cervical condition, it would not take much to sustain microtearing, which he testified cannot be seen through an X-ray or MRI. Thus, he opined, based on years of training, practicing, experience and education, that Luzier was an eggshell plaintiff and clearly did injure herself in the accident. Thus, Luzier sought recovery of past and future medical costs. She also sought recovery of damages for her past and future pain and suffering. Her husband, plaintiff Donald Luzier, sought recovery of damages for his loss of consortium. The defense’s civil engineer and biomechanics expert determined that because of the underride nature of the collision, and the bus weighing over 40,000 pounds, the force on Ms. Luzier had a delta-v of 2.5, which was not enough force to cause Ms. Luzier’s . He testified that although the plaintiff’s accident reconstruction/biomechanical expert calculated the collision as an underride, only about two-thirds of the front end of the Zambrana’s Volkswagen was involved. The defense expert argued that the plaintiff’s expert calculated the delta-v under the assumption that the entire front end of the Volkswagen was involved, which would have artificially increased the delta-v. However, the expert noted that when it was calculated with only the part of the front end that was actually involved, even plaintiff’s expert had the delta-v at about 2.5. Defense counsel noted that the plaintiff’s accident reconstruction/biomechanical expert relied on several source book materials to support his opinions, but that he cherry picked the supporting material. Counsel noted that one of the general statements in the material was that slow speed collisions of 2.5 or less do not cause , except transient temporary pain that resolves very quickly, but that not one test in the source material found that a collision at 2.5 caused an actual injury, let alone cause the need for a fusion. Defense counsel also noted that the plaintiff’s expert claimed that, based on his source book materials, that Ms. Luzier was more prone to injury because she’s a female. However, defense counsel contended that the source material also said that the exception was for low delta-v accidents, such as the subject incident. Defense counsel also noted that the plaintiff’s expert opined that Ms. Luzier’s bus seat was a bad seat, citing a book that stated that a stiff seat put the driver in a more injury-prone position than a softer seat. However, defense counsel contended that the book also stated that the exception was with low delta-v accidents, where a stiff seat is better for the driver. In addition, the plaintiff’s expert opined that there was no head rest to stop Ms. Luzier’s head from going back, but defense counsel argued that the force was not sufficient enough to cause Ms. Luzier’s head to go back into the head rest. Defense counsel further noted that the plaintiff’s expert had Ms. Luzier sit in the seat, even though Ms. Luzier could not remember at her deposition how she was seated. Thus, defense counsel argued that the plaintiff’s accident reconstruction expert assumed how Ms. Luzier was seated when the accident occurred, with Ms. Luzier’s back pressed completely back into the seat. However, the defense’s civil engineer and biomechanical expert opined that people tend to slouch and don’t sit completely upright. Defense counsel noted that the plaintiff’s expert even conceded that if Ms. Luzier was seated even an inch down, his opinion would change. The defense’s expert orthopedic surgeon reviewed Ms. Luzier’s records and opined that everything post-accident was present pre-accident. The expert testified that the symptoms Ms. Luzier reported to her treating chiropractor before the accident, in May 2011 and June 2011, were the same after the collision and that Ms. Luzier had no structural changes to the spine. Defense counsel contended that Ms. Luzier became a full-time bus driver for the 2010-2011 school year and that as soon as the school year ended, Ms. Luzier presented to her healthcare providers with the same symptoms she had after the subject accident. Counsel noted that after her first year, Ms. Luzier immediately had problems with radicular pain into her arms in May 2011 and June 2011, and that though the only difference was that she did not have a personal injury claim at that time. Thus, defense counsel argued that Ms. Luzier was not injured in the subject accident. Defense counsel contended that Ms. Luzier and her experts argued that Ms. Luzier had no treatment from June 2011 until the subject accident in order to support the claim that she was not having significant problems prior to the incident. However, defense counsel argued that Ms. Luzier did not have a claim to bill and would have treated her condition if she did. Counsel further argued that insurance was the reason Ms. Luzier did not treat her condition prior to the accident, noting that Ms. Luzier’s chiropractor testified that Ms. Luzier previously paid in cash. Thus, defense counsel contended that Ms. Luzier’s complaints were just a natural progression of her pre-accident state and that Ms. Luzier’s driving of the bus was her aggravating condition, and not the subject accident. Defense counsel added that even after the subject accident, Ms. Luzier continued to drive the bus until the end of the school year on May 30, 2012. Counsel also presented Ms. Luzier’s sister’s Facebook page, which showed a photo taken prior to trial, in June 2015, that showed Ms. Luzier pushing her adult son on a swing. Thus, defense counsel argued that the Facebook picture showed Ms. Luzier in stark contrast to the person that appeared in court, in which Ms. Luzier appeared to be very stiff with significant limited motion and in visible pain.
Superior Court of Shasta County, Redding, CA

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