Case details

Defense denied plaintiff sustained a traumatic brain injury





Result type

Not present

arm, brain, brain injury, cognition, concentration, concussion, flashbacks, fracture, head, headaches, humerus eye back head, impairment, mental, neck, psychological, traumatic brain injury
On May 4, 2011, plaintiff Nicole Radich, 16, a student, was operating a Nissan Altima on a dirt portion of Sloan Canyon Road, near Berringer Drive, in the Castaic area, when her vehicle was struck head-on by a 2010 Ford F150 Raptor 4×4 operated by Eric Foster. The impact pushed Nicole’s vehicle backward off the roadway, where it ultimately crashed into a large oak tree and shattered the rear window. Nicole claimed to her head. Nicole sued Eric Foster and the registered owners of the truck, Eric Foster’s parents, Debra and William Foster. Nicole alleged that Eric Foster was negligent in the operation of the truck and that Debra and William Foster were liable for their son’s actions. Nicole originally brought a negligent entrustment claim against Debra and William Foster due to allegations that Eric Foster had consumed marijuana prior to the accident. Nicole’s brother, John Radich, 19, who was a passenger in Eric Foster’s vehicle, originally told the investigating sheriff’s deputy that he had seen Eric Foster smoke three bowls of marijuana about 20 minutes before the accident, but he later changed his story to indicate that it was two hours before the crash. The investigating sheriff ultimately determined that Eric Foster was not under the influence at the time of the accident. Thus, Eric Foster’s parents, Debra and William Foster, were dismissed from the case. In addition, John Radich and Nicole’s sister, Krista Smee, 21, who was a passenger in Nicole’s vehicle, were initially named as plaintiffs, but they were both also dismissed from the case. Thus, the matter continued with Nicole’s claims against Eric Foster only. Nicole claimed that Eric Foster came around a bend in the road and was heading down an incline when he veered toward the opposite side of an 18-foot wide area in the roadway and struck her vehicle, which was proceeding in the opposite direction. Thus, she claimed that Eric Foster lost control of his vehicle on the dirt road, largely due to driving too fast for the conditions. Eric Foster admitted liability., Both vehicles sustained major damage to the left, front ends and were totaled. Nicole indicated that she saw Eric Foster’s truck coming toward her at 50 to 60 mph when it hit her and she lost consciousness. The damage to Nicole’s Altima was in excess of $15,284.41, resulting in total loss. The crash significantly displaced the left, front wheel of the Altima, breaking the windshield and causing significant driver door damage. There was also secondary damage caused to the rear of the vehicle from hitting the tree. Damage to Eric Foster’s truck was over $27,000 and also sustained significant damage to the left front of the vehicle. Immediately after the accident, Nicole was in and out of consciousness for a few minutes. As a result, she was taken by AMR Ambulance to Henry Mayo Newhall Memorial Hospital, in Valencia. After an emergency room evaluation, Nicole was diagnosed with a comminuted fractured of her right arm’s humerus, and cervical and thoracolumbar spine . She was also diagnosed with bruising and swelling to her right eye, and head-trauma, resulting in a concussion. In addition, she was diagnosed with bruising to a hip and a knee. A few weeks after the incident, Nicole sought chiropractic care. At the first visit, she complained of constant headaches with moderate to severe neck and lower back pain, as well as vomiting, dizziness, trouble concentrating, and pain in the humerus area where the fractured existed. She was noted to have a concussion with cognitive issues, dizziness, trouble concentrating, sleeplessness, nervousness, neck pain, back pain, rib pain, shoulder pain, wrist pain, knee pain, pelvic pain, and weakness to her neck. Nicole claimed that she sustained a closed head injury, resulting post-traumatic head injury syndrome, concussions, and a traumatic brain injury, consisting of left, frontal lobe atrophy, and that there were numerous findings on functional MRIs. She also claimed she suffered from post-concussion syndrome, explosive headaches, a change in her sleep patterns, fatigue, behavioral changes, and cognitive issues, including an inability to concentrate and process information. In addition, she claimed she suffered anxiety after the trauma, low-back pain, neck pain, and pain in her humerus fracture area, as well as nausea and vomiting, general anxiety disorder, and emotional distress. In addition, Nicole claimed that she suffered a loss of intervertebral disc height, causing shortening in one of her legs. Nicole alleged that her brain injury was persistent and that her humerus fracture caused her to suffer from pain and stiffness in her right, upper extremities, including her right shoulder and elbow. She also alleged that she suffered from flashbacks regarding the crash, which caused severe post-traumatic stress disorder, and that as a result of her condition, she could no longer attend nursing school, resulting in a loss of future earning capacity. The plaintiff’s expert neurologist diagnosed Nicole with post-traumatic stress disorder and severe, post-traumatic brain injury syndrome, including headaches, confusion, light-headedness, dizziness, constant fatigue with lethargy, change in sleep patterns, sleep disturbances, and behavioral and mood changes, which consists of extreme depression and illogical thoughts of suicide. The expert neurologist also testified there were two functional MRIs that showed objective findings of a traumatic brain injury and atrophy. Family members and friends testified that Nicole’s personality changed and that her behavioral problems were the most difficult disabilities to handle with her. Nicole’s mother and sister also testified that Nicole no longer visited friends or did anything with the family and that Nicole was severely depressed. In addition, two girlfriends testified that Nicole did not want to socialize with friends, was always depressed, and had emotional issues. Nicole’s family and friends also claimed that Nicole experienced apathy, anxiety, irritability, anger, frustration, agitation, insomnia, and other sleep problems and mood swings. The plaintiff’s expert life care planner testified that Nicole will need a cardiology evaluation; sleep specialist; brain injury rehabilitation; neuro-psychological therapy; orthopedic physical therapy; vocational rehabilitation; and memory aids, including computer tablets and a life-time supply of post-it notes; and case management to coordinate those services. Thus, the expert opined that Nicole’s future medical care was in excess of $1.7 million. Nicole sought recovery in excess of $150,000 for her loss of earning capacity for not being able to be a nurse. She also claimed her Kaiser lien was in excess of $50,000, but she waived her past medical expenses, so they were not introduced into evidence at trial. Nicole further sought recovery of $1,396,890 for future medical expenses and $175,000 in non-economic damages for her past physical pain and suffering, including $100,000 for her physical pain for the past year and three months after the accident and $75,000 for the three months after that for physical pain during physical therapy to her arm. She also sought recovery of $535,000 for her past mental suffering and loss of enjoyment of life, including $400,000 for the first three months, $75,000 for the next three months, and $10,000 per year for the next six years. Nicole also sought recovery of $135,000 for her physical impairment, including $50,000 for the loss of use and mobility of the arm for the first three months, $25,000 for the next three months, and $60,000 for the last six years, which was calculated at $10,000 per year. Thus, Nicole sought recovery of $1.28 million in total damages for her alleged, anxiety, emotional distress, loss of earning capacity, and past pain and suffering. As for her future damages, Nicole sought recovery of $885,000, including $15,000 per year for 59 years for her future physical , traumatic brain injury and PTSD. She also sought recovery of $5,000 per year, or $295,000 in total, for her alleged future mental suffering, and $15,000 per year for 59 years, or $885,000 in total, for her future loss of enjoyment of life. Nicole further sought recovery of $1,000 per year for 59 years, or a total of $59,000, for her alleged future physical impairment because she allegedly could not move her arm up or down and sought $150,000 over her entire life for her alleged future loss of earning capacity. In addition, she sought recovery of $2,274,000 in damages for her future pain and suffering over her 59-year life expectancy. In total, Nicole sought recovery of $5 million for her alleged traumatic brain injury, post-traumatic stress disorder and physical to her entire body, as well as loss of future earning capacity, loss of cognitive function, anxiety and severe depression with suicidal ideology. Defense counsel argued that Nicole sustained only a fractured humerus and that the bruising and strains and sprains resolved. Counsel also argued that the fracture healed without complications and that there was no traumatic brain injury, nor was there any post-traumatic stress disorder and depression. Counsel further argued that there was no future loss of earning capacity proven, nor was there any need for further medical care or services. In addition, defense counsel argued that there was no basis for future non-economic damages for pain and suffering. Specifically, defense counsel contended that all MRIs were normal, except the functional MRIs, which are just research tools and not used in clinical diagnosis of a patient. The defense’s neuropsychology expert testified that on all her tests, she found that Nicole was a malingerer. Defense counsel noted that after the subject accident, Nicole graduated cum laude from College of the Canyons with a degree in psychology. Defense counsel also introduced 25 Facebook photos from Nicole’s page and argued that even though Nicole claimed major depression, the photos showed her with friends, at poker games, out drinking and drinking cocktails. Thus, defense counsel asked the jury to give Nicole only $25,000 for her past non-economic damages for the bruising, soft tissue strains and sprains, and the fracture of the humerus.
Superior Court of Los Angeles County, Van Nuys, CA

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