Case details

Defense blamed pedestrian, claimed driver had right of way

SUMMARY

$16400

Amount

Verdict-Plaintiff

Result type

Not present

Ruling
KEYWORDS
arm, biceps muscle, emotional distress, mental, psychological, tear
FACTS
On Dec. 3, 2013, plaintiff Silvia Juarez, 43, a homemaker, was walking north along the southbound lanes of South Berendo Street, in Los Angeles, while holding her son, plaintiff Christian Hernandez, an autistic 5 year old. As she entered the intersection with West 11th Street, the driver’s side mirror of a vehicle operated by Brandon Kim, who was traveling in the westbound lanes of West 11th Street, struck Juarez’s right arm. Juarez claimed that the impact swung her around, but she did not drop Christian or fall down. She also claimed that she suffered of her right shoulder and that Christian suffered emotional distress as a result of the incident. Juarez, acting individually and on behalf of Christian, sued Kim, alleging that Kim was negligent in the operation of his vehicle. Plaintiffs’ counsel noted that the intersection had a four way stop with stop signs governing each lane. Counsel argued that Kim failed to yield the right of way to pedestrians crossing the intersection. Defense counsel noted that it was dark out at the time of the accident and that Kim had his headlights on. Counsel also noted that Juarez testified that she looked both ways before she entered the roadway and that there were no overhead lights where she crossed. Defense counsel argued that Kim’s headlights gave Juarez a better opportunity to avoid the collision and that Juarez had a duty to be attentive as a pedestrian. The defense’s accident-reconstruction expert calculated the speed and timing of the collision, and he opined that Kim entered the intersection from a stop sign before Juarez left the sidewalk’s curb. The expert opined that Kim had the right of way at the intersection., Christian was taken by ambulance to the emergency room at Children’s Hospital Los Angeles, where he was examined and released. Plaintiffs’ counsel contended that Christian suffered emotional distress as a result of the accident, causing Christian to have nightmares. Juarez, acting on behalf of her son, sought recovery of Christian’s past medical costs, including the cost of the ambulance and hospital, and noneconomic damages for Christian’s emotional pain and suffering. Plaintiffs’ counsel asked the jury to award Christian $30,000 in total damages. Juarez, who went with Christian to Children’s Hospital Los Angeles, was not evaluated at the children’s hospital. She later presented to the emergency room at Good Samaritan Hospital, in Los Angeles, during the early morning hours of Dec. 4, 2013. She claimed that she sustained to her right, dominant shoulder. Juarez treated with an attorney-referred chiropractor on Dec. 5, 2013, and she continued receiving chiropractic treatment until Feb. 4. 2014. She underwent an MRI of her right shoulder on May 6, 2014, and she saw an orthopedic surgeon on June 11, 2014. Juarez’s treating orthopedic surgeon diagnosed Juarez with a longhead biceps tendon tear on March 17, 2016, and recommended that Juarez undergo surgery to repair the tear. However, when the expert began the surgery to repair the biceps tendon on June 26, 2018, he instead repaired a tear of the subscapularis tendon, which is a component of the rotator cuff but can cause issues with the biceps muscle. Plaintiffs’ counsel contended that, in case of exacerbation, Juarez will require future care, such as physical therapy, on her right shoulder. Plaintiffs’ counsel asked the jury to award Juarez $64,600 in total damages. Defense counsel denied that Christian sustained any emotional distress, as Christian had no counseling and did not mention the accident to any mental health providers and to anyone at school. Defense counsel also denied that Juarez sustained any from the subject accident, noting that Juarez did not even suffer a mark on her shoulder when the accident allegedly occurred. The defense’s accident reconstruction expert also found that the accident occurred at a low speed, and opined that if there was any contact to Juarez’s arm, it would have been so minor that no injury could have occurred. Defense counsel argued that Juarez’s treating orthopedic surgery expert changed the diagnoses of Juarez’s injury multiple times. Defense counsel contended that the expert initially diagnosed Juarez with subacromial bursitis and rotator cuff tendinitis, and then, six months later, diagnosed Juarez with subacromial-subdeltoid bursitis of the infraspinatus and a tear of the rotator cuff. Counsel contended that the Juarez’s expert then diagnosed Juarez with the alleged longhead biceps tendon tear, but ultimately did not repair that tendon and, instead, repaired the subscapularis tendon instead. Defense counsel also noted that Juarez’s surgery was years after the subject accident. The defense’s expert orthopedic surgeon noted that Juarez’s treating expert did not repair the injury that he diagnosed Juarez has having. As a result, the defense’s expert did not attribute Juarez’s injury to the subject accident, and opined that Juarez’s injury probably existed prior to the subject accident due to constantly lifting Christian and performing housework.
COURT
Superior Court of Los Angeles County, Torrance, CA

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