Case details

Defense disputed plaintiff’s alleged traumatic brain injury

SUMMARY

$26775

Amount

Verdict-Plaintiff

Result type

Not present

Ruling
KEYWORDS
back pain, brain, cervical disc injury, cervical radiculitis, double vision, headache neck, neck, neurological, radicular pain, radiculitis, sensory, speech, thoracic outlet syndrome, traumatic brain injury, traumatic cataracts
FACTS
At approximately 5:15 p.m. on Nov. 29, 2011, plaintiff Steven Rempell, 69, a software programmer, was driving a 1998 Chevrolet Tahoe behind a 2000 Toyota Tundra pickup truck traveling in the northbound number two lane of U.S. Highway 101, in San Rafael. When Rempell stopped his Tahoe 2 feet behind the Tundra, he was struck by a 2003 Ford F250 pickup truck that was traveling behind him in the number two lane. The collision subsequently pushed Rempell’s Tahoe into the Tundra in front of him. Rempell complained of pain to his head and neck at the scene. Rempell sued the driver of the Ford F250 pickup truck, Robert Hofmann, and the owner of the Ford F250 pickup truck, O.C. Jones & Sons Inc., which was also Hofmann’s employer. Rempell alleged that Hofmann was negligent in the operation of the F250 pickup truck and that O.C. Jones and Sons was vicariously liable for Hofmann’s actions as the owner of the pickup truck and as Hofmann’s employer. Hofmann claimed that he observed Rempell’s Chevrolet Tahoe slowing down in front of him and that he applied the brakes in an attempt to avoid a collision, but that due to the speed of his pickup truck, he was unable to avoid the collision with Rempell’s Tahoe. Thus, the defendants accepted responsibility for the accident., Rempell complained of a headache at the scene of the accident. Three days later, he presented to the emergency room at Novato Community Hospital, in Novato, with complaints of nausea, dizziness, a headache, and neck and back pain. He was subsequently diagnosed with post-concussion syndrome, but a CT scan of his head was taken and found to be normal. He then followed up with his primary care physician, who diagnosed him with a concussion and a cervical sprain. The doctor then ordered a second CT scan of Rempell’s head to rule out any subdural delay. Rempell claimed he sustained a traumatic brain injury, thoracic outlet syndrome, cervical radiculitis, and traumatic cataracts resulting in double vision. He also claimed that he suffered an exacerbation of osteoarthritis in the right shoulder with associated left shoulder pain due to overuse and suffered from sexual dysfunction as a result of the accident. At the suggestion of his primary care physician, Rempell presented to a neurologist, who diagnosed Rempell with a closed head injury with traumatic brain syndrome (a concussion with post-concussion syndrome), cervical and thoracic strains, and thoracic outlet syndrome. The plaintiff’s treating neurologist also noted that Rempell was “totally disabled from his work at [that] time, putting massive contracts at grave risk.” As a result, the physician prescribed Namenda to treat Rempell’s headaches and “cognitive clouding.” He also referred Rempell for additional testing, including an MRI, a PET scan, and a CT scan. In addition, the plaintiff’s treating neurologist referred Rempell for physical therapy to treat his thoracic outlet syndrome. Rempell ultimately underwent multiple surgical procedures, including a right cataract surgery on May 22, 2013; a left cataract surgery on June 19, 2013; a right shoulder arthroplasty on Oct. 16, 2013; and a left shoulder arthroscopy on Sept. 30, 2014, all of which he attributed to the accident. However, Rempell alleged that despite the surgeries and other treatment, he has ongoing complaints with all of the he attributed to the accident. In addition, the plaintiff’s treating neurologist opined that Rempell’s traumatic brain injury would require future medical treatment, including continued use of Namenda for the rest of his life, and unspecified “interventional drugs” and “therapies.” Rempell was a successful inventor/software developer, and was the founder and Chief Executive Officer of Express Mobile, a small software programming company that was started in 2006. On June 30, 2010, Express Mobile contracted with Cross Media Works, a mobile marketing company, to develop software applications to market to the clients of Cross Media Works. One such client was television evangelist and megachurch Joel Osteen Ministries. Rempell claimed that the purported Osteen deal, which allegedly included revenue sharing, would have generated millions of dollars in revenue for Express Mobile every year. However, he alleged that his traumatic brain injury interfered with his ability to invent and develop software, and prevented him from completing a mobile phone application for Osteen. He also alleged that the traumatic brain injury caused depression, memory loss, and a change in his personality. The plaintiff’s two economic experts testified that Rempell lost over $16 million as a result of the accident. The plaintiff’s retained economist opined that Rempell’s loss of income/earning capacity amounted to $12 million, which was derived from a valuation of the Express Mobile common stock based on a post-accident investment in his company. The plaintiffs’ retained forensic accountant estimated that Rempell’s lost profits amounted to $3.9 million. Plaintiff’s counsel asked the jury to award Rempell $65,000 in past medical expenses, $12.9 million in “past lost earning capacity,” and $3.9 million in “present lost earning capacity.” With regard to non-economic damages, plaintiff’s counsel equated Rempell’s pain and suffering to his loss of creativity, and suggested that Rempell’s pain and suffering award equal his loss of earning capacity award. Accordingly, plaintiff’s counsel asked the jury to award Rempell up to $16.8 million for past and future pain and suffering. Rempell’s wife, plaintiff Marcia Rempell, sought recovery for her loss of consortium. Thus, plaintiffs’ counsel also asked the jury to award Mrs. Rempell $1 million in damages for her loss of consortium. Defense counsel disputed the cause, extent and severity of all of the and damages claimed by the plaintiffs. The defense’s experts opined that Mr. Rempell may have had a concussion, but that he did not have a brain injury. The defense’s expert economist also testified that Mr. Rempell had no economic loss from the accident.
COURT
Superior Court of Marin County, Marin, CA

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