Case details

Defense claimed driver only aggravated prior shoulder injuries





Result type

Not present

On Dec. 27, 2011, plaintiff Bruce Berkan, 58, retired, was driving with his family on Route 101 heading south, near the town of Gilroy. After coming to a stop for traffic, he was rear-ended by a second vehicle, operated by Nicholas Demuth. The Demuth vehicle had been traveling at about 35 miles per hour. The impact caused Berkan to strike a van in front of him, and he sustained to both shoulders. Berkan sued Demuth, alleging that he was negligent in the operation of a vehicle. Demuth conceded liability. (However, due to the severity of the sustained by Demuth’s wife, Demuth’s was unable to attend trial.), Berkan declined emergency medical treatment and continued on to Arizona, Nevada, and California for a family vacation. Thirty-seven days after the accident, he treated with his primary-care physician, in Canada. He was referred for physical therapy, which he underwent sporadically over five months, before being discharged. In May 2014, Berkan visited Dr. Douglas Abeles, an orthopedist , on the advice of his attorney. Abeles diagnosed him with full-thickness tears of both rotator cuffs (the groups of muscles and tendons that surround the shoulder joints). (The tears had been initially diagnosed in February 2012.) He subsequently underwent surgery to repair the tears in August and September of 2014. Berkan’s accident reconstruction expert testified that the forces involved in the collision, combined with occupant mechanics, caused Berkan’s rotator-cuff tears and required surgery. Berkan claimed his have harmed his general enjoyment of life and prevent him from enjoying leisure activities, such as golf and playing with his grandchildren. Thus, he sought recovery of $131,000 in past medical expenses related to his surgeries and $270,000 for his non-economic damages. Defense counsel noted that Berkan had surgery to repair a right rotator-cuff tear nearly 10 years before the subject accident, in 1995, and that Berkan had reportedly complained of shoulder problems prior to the accident. Counsel cited Berkan’s medical history and failure to seek immediate medical treatment following the accident. The defense’s biomechanical, accident reconstruction and orthopedics experts all opined that there was no mechanism of injury present and that current scientific literature did not support Berkan’s alleged cause of injury. Thus, defense counsel argued that, at most, the accident only aggravated a pre-existing shoulder condition, which included prior bilateral tears. Counsel also contended that Berkan received reasonable treatment in Canada and that the only medical bill presented by the plaintiff at trial was for the shoulder surgery. However, defense counsel argued that any aggravation sustained in the accident did not cause Berkan’s need for bilateral rotator cuff surgery and that Berkan’s medical records showed that his shoulder complaints had resolved within five months of the incident.
Superior Court of Santa Clara County, Santa Clara, CA

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