Case details

Defense argued passenger had gaps in treatment





Result type

Not present

cervical, neck, strain, whiplash
On the afternoon of May 23, 2009, plaintiff Kelly Young, 23, a self-employed spokesmodel, was a passenger in her friend’s 1997 BMW 740 that was traveling in a San Francisco Airport parking garage. As they entered an intersection, the front of the BMW was struck by the front passenger side of a rental minivan operated by Sioeli Taumalolo. Young claimed to her neck and knees. Young sued Taumalolo and Taumalolo’s mother-in-law who rented the minivan, Leaaetohi Mahe. Young alleged that Taumalolo was negligent in the operation of the minivan and that Mahe was vicariously liable for her son-in-law’s actions. Young ultimately dismissed the claim against Mahe prior to trial. The matter also proceeded to arbitration on Feb. 10, 2012, but Taumalolo, who did not dispute liability at arbitration, rejected the $20,952.99 award. Thus, the matter proceeded to trial. At trial, Young claimed that Taumalolo’s lane had a line at the intersection, while the BMW’s lane did not have a line. Thus, she claimed that the BMW she was in had the right of way, and that Taumalolo caused the accident by speeding and failing to stop before proceeding through the intersection. Taumalolo testified he slowed to approximately 5 mph as he approached the intersection, looked left, right and left again, and then proceeded into the intersection, where the collision occurred. He claimed that he could see two to three car lengths to the left and that it appeared to be clear. Thus, defense counsel argued that the BMW had to be speeding. Counsel also argued that Taumalolo behaved reasonably and did what most drivers do at stop signs, slowed and looked, even though Taumalolo did not even have a stop sign at the intersection., Four days after the accident, on May 27, 2009, Young sought care for complaints of neck pain and then sought additional care on June 3, 2009. Her primary care physician diagnosed her with whiplash/cervical strain, which Young claimed caused her referred pain from cervical facet syndrome. During the May 2009 visit, Young was advised to go to physical therapy, but she did not commence it until June 7, 2010. In between that time, on Sept. 25, 2009, Young claimed pain to both knees from an exacerbation of her underlying chondromalacia and/or patellar maltracking, which is an imbalance in the kneecap that aggravates the knee cartilage. She alleged that her knee pain was due to the accident. Young claimed that the physical therapy she received in 2010 helped her neck and knee conditions, but that it was not a permanent solution and that she needed to stretch daily thereafter. Young claimed that she continues to suffer neck and knee pain. She alleged that as a result, her restrict her activities and keep her from dancing, exercising, riding a dirt bike and helping out her grandfather on the family orchard. The plaintiff’s treating family medicine physician testified that Young’s continued neck and knee complaints are related to the accident. In addition, the plaintiff’s treating physical medicine physician testified that Young’s complaints are due to the cervical facet syndrome and recommended facet injections. Thus, Young sought recovery of approximately $60,000 in total damages, including $32,000 for past pain and suffering and $16,000 for future pain and suffering. The total damages sought also included a claim of $12,502 in past medical costs, after adjustments, including $4,419.53 in MRI and X-ray charges, and $5,872 in physical therapy charges. Young, an independent contractor, did not claim any wage loss and although she claimed her pain continued, she did not ask for future economic damages. Defense counsel noted that following the accident, Taumalolo and Young’s friend exchanged information. The BMW sustained approximately $8,000 in damage. Defense counsel also noted that after the crash, Young and her friend went on their planned weekend trip to Los Angeles, where they went to a party. However, the court granted plaintiff’s counsel’s motion in limine to preclude any mention of the party being at the Playboy Mansion or that it was thrown by Hugh Heffner. Defense counsel emphasized gaps in Young’s treatment, and contended that Young sustained a fairly minor soft-tissue injury to the neck and right shoulder area. Counsel also contended that Young’s knee complaints are unrelated to the accident, as the knee complaints were not mentioned in the medical records until four months after the accident. The defense’s expert in orthopedic surgery testified that Young does not require any future care, has no physical limitations due to the accident, and is “probably” fully recovered by now. He further testified that there is a “disconnect” between the plaintiff’s continuing subjective complaints and the medical findings. Defense counsel asked for a defense verdict. However, counsel argued that if the jury was to award damages, it should only award approximately $3,000 in economic damages and approximately $2,500 in general damages.
Superior Court of San Francisco County, San Francisco, CA

Recommended Experts


Get a FREE consultation for your case