In December 2012, plaintiff Malte Selck, 48, a carpenter and a German immigrant who had been in the United States for less than two years, was operating his motorcycle on southbound U.S. Route 101, in San Francisco, during rush hour traffic. When he was just north of the Yerba Buena overpass, Selck slowed his motorcycle as a result of traffic slowing down in front of him. However, Selck’s motorcycle was rear-ended by a Honda operated by Van Thuy Tran, causing Selck to be ejected from his motorcycle and land on the pavement. Selck sustained to his back, a hip, and a clavicle. Selck sued Tran and the co-owner of the Honda, Dinh Nguyen. Selck alleged that Tran was negligent in the operation of the Honda and that Nguyen was vicariously liable for Tran’s actions. The claims against Nguyen were ultimately dismissed with prejudice after the close of evidence. Thus, the matter continued against Tran only. Plaintiff’s counsel contended that Tran was traveling in excess of 60 mph and had become distracted by her dog in the front passenger seat at the time of the collision. Counsel also noted that Tran rear-ended another vehicle after striking Selck and that the other driver suffered only mild . An off-duty, San Jose Police Department officer allegedly witnessed the accident and testified that Tran’s Honda rear-ended Selck’s motorcycle. The off-duty SJPD officer also testified that he and plaintiff’s counsel prepared an animation that depicted the version of events showing Tran rear-ending Selck, which was ultimately shown to the jury. One of the plaintiff’s accident reconstruction experts, Rajeev Kelkar, opined that that the Honda rear-ended the motorcyclist and that there was no scientific or physical evidence of lane splitting. Tran claimed that Selck was lane splitting at a high rate of speed and that Selck cut in front of her Honda right before the Honda hit the other vehicle. Thus, she claimed that Selck caused the accident. Defense counsel contended that the off-duty, San Jose Police Department officer who was called by plaintiff’s counsel to testify at trial had previously testified at deposition that he was 270 to 300 feet behind Tran, but that at no point did he recall seeing Selck’s motorcycle riding in front of Tran. Defense counsel also contended that the off-duty SJPD officer only became aware that a motorcycle was involved in the accident when he saw it lying on the road as he approached the accident scene. Thus, defense counsel argued that the off-duty SJPD officer only surmised that Selck was in front of Tran’s vehicle at the time of the accident. Defense counsel had the deposition testimony of an unavailable, deceased, investigating California Highway Patrol officer read to the jury, in which the officer claimed that the off-duty SJPD officer told him at the accident scene that Selck had rear-ended Tran, but that when he called the off-duty SJPD officer two weeks later to clarify his accident scene statement, the off-duty SJPD officer told him that he didn’t know why Selck didn’t just stay in the carpool lane. Defense counsel contended that, under cross-examination, the off-duty SJPD officer testified that he personally knew Selck and that he only realized that Selck was involved in the accident that he had previously witnessed six months after the subject incident. Defense counsel contended that the off-duty SJPD officer was contacted by plaintiff’s counsel, where he reviewed his police statement and signed a declaration stating that Tran rear ended Selck. However, defense counsel noted that the off-duty SJPD officer testified that he never informed the investigating California Highway Patrol officer that the statements attributed to him in the police report were purportedly incorrect. The defense’s accident reconstruction and safety expert, Frank Perez, opined that Selck’s lane splitting had caused or contributed to his motorcycle being rear-ended. In response, plaintiff’s counsel pointed out that Tran initially claimed that Selck’s motorcycle rear-ended her vehicle, but then changed her story once it was noted that an inspection of the motorcycle revealed that there was no damage to the front of the motorcycle, yet the rear wheel of the motorcycle became detached in the collision. Plaintiff’s counsel argued that after Tran was informed about the inspection of the motorcycle, Tran conceded to rear-ending Selck, but then claimed that Selck contributed to the crash by lane splitting. Plaintiff’s counsel also noted that following Tran’s 2013 deposition, Tran’s prior counsel had retained accident reconstruction experts Boster, Kobayashi and Associates and that Perez initially claimed that Tran had simply rear-ended Selck’s motorcycle, but that in 2016, two years after the vehicle inspection, Perez testified at his deposition that he determined Selck’s lane splitting had caused the rear-end collision. According to plaintiff’s counsel, the defense expert, Perez, acknowledged that the lane splitting theory was a “new story” that he came up with shortly before trial and that he had no explanation as to why he changed his “story.” However, plaintiff’s counsel argued that the defense’s liability experts had been aware for years that Tran’s vehicle had rear-ended the motorcycle, but that they had allegedly kept it a secret until expert depositions were taken. In addition, plaintiff’s counsel showed 10 simulations of the accident from Boster, Kobayashi’s file which showed that Tran was at fault and did not show a lane splitting scenario. Plaintiff’s counsel then showed the jury a second simulation of the accident, which depicted Kelkar’s (one of the plaintiff’s accident reconstruction experts’) interpretation of defense expert Perez’s lane splitting opinions of the accident. Kelkar opined that there was no physical evidence that lane splitting occurred, but if it did, Perez’s calculations showed that the motorcycle was lane splitting for 15 to 20 seconds ahead of Tran prior to the accident. In response to the alleged change of story, the defense’s safety expert, Perez, testified that his colleague at Boster, Kobayashi and Associates had done the initial work up on the case and had determined that Tran had simply rear-ended Selck’s motorcycle. Perez claimed that he became actively involved in the case following his attendance at a motorcycle inspection in 2014, where he confirmed that Tran had rear ended Selck’s motorcycle. However, he claimed that after the vehicle inspection, he read the November 2013 deposition transcript of a witness to the accident, in which the witness testified to seeing Selck “riding side to side” with Tran’s Honda in the same lane as the motorcycle, and which the witness was asked if Selck was “splitting lanes” and he answered “yes.” Perez testified that upon reading the witness’s 2013 testimony, he determined that his colleague’s simple rear-end version of the accident was not complete and that Selck’s lane splitting was a contributing factor in his being rear-ended. Defense counsel further noted that plaintiff’s counsel called the witness to the stand and that the witness testified at trial that he observed Selck in his rear-view mirror just seconds prior to Tran impacting his vehicle. The witness also testified that he saw Selck “passing between the cars,” riding “side by side” and to the right of Tran’s vehicle, and that Selck was riding “in between two lanes” and “splitting lanes.” He further testified that he had given a similar account of seeing Selck riding between lanes and lane splitting in his prior 2013 deposition., Selck suffered an L1 burst fracture, a hip fracture and a clavicle fracture. He was subsequently transported by ambulant to Santa Clara Valley Medical Center, in San Jose, where he spent 10 days. Selck underwent surgeries to repair his L1 burst fracture and hip, but chose not to have surgery on his fractured clavicle. Selck alleged that the bony lumbar fusion surgery had failed and that it was likely that the metallic hardware had failed, or would fail in the future. He also alleged that as a result of the accident, he experienced pain and could no longer continue to work as a handyman. He further alleged that the accident prevented him from starting a licensed carpentry business. Plaintiff’s counsel offered to settle for policy limits before the suit was filed, but the defendants’ insurance carrier rejected the offer despite the fact that Selck had included over $300,000 in medical bills when he submitted his limits demand. Thereafter, Selck served a $4,999,999 C.C.P. § 998 demand in 2014 and a $2.3 million C.C.P. § 998 demand in 2016, both of which were rejected. The last formal demand was $1.7 million via C.C.P. § 998 in 2017, but that statutory offer was also rejected by the defendants’ insurance carrier. As a result, plaintiff’s counsel suggested a $1 million/100,000 high/low agreement at the mandatory settlement conference, but it was rejected by the defendants’ insurance carrier. Thus, during the parties closing arguments, plaintiff’s counsel argued that the case was a simple rear-end accident and asked the jury to return a verdict against Tran, and award Selck $12.9 million for past and future economic and non-economic damages. Defense counsel contended that Selck’s 30-year history of smoking had caused the bony fusion to fail, but that the remaining metallic fusion hardware was sufficient to stabilize Selck’s spine. As for Selck’s alleged lost earnings claims, defense counsel argued that Selck had never taken any past steps to become a licensed carpenter and, therefore, Selck’s claims that the accident had prevented him from becoming a licensed carpenter was unsupported and speculative. Counsel further argued that Selck benefited from a better earning capacity because of the accident. Thus, defense counsel asked the jury to return a defense verdict, arguing that Selck caused the accident and to himself by lane splitting at a high rate of speed and cutting in front of Tran’s Honda moments before impact. However, counsel argued that if the jury were to award damages against Tran, it should award only approximately $1 million in damages.