Case details

Defense: Medical records stated plaintiff had no pain





Result type

Not present

cervical, neck, strain
On March 15, 2008, at 1:45 a.m., plaintiff Jesse Rivera, 20, an electrical systems technician for the Air Force and stationed at Travis Air Base, was driving his Chevrolet Silverado on an on-ramp in Vacaville, when he was struck head-on by a Toyota Tundra operated by Ryan Gardiner. Gardiner was originally westbound on Interstate-80 and had exited onto the Alamo Drive off-ramp, when he lost control of his vehicle and entered the adjacent on-ramp. As a result, he collided head-on into Rivera’s vehicle. Rivera sued Gardiner, alleging that the defendant was negligent in the operation of his vehicle. Gardiner stipulated to liability prior to trial and admitted that he had been drinking prior to the subject accident. His blood-alcohol content was 0.11 percent and he was convicted of a Driving-Under-the-Influence misdemeanor by way of pre-trial stipulation., Rivera claimed that the accident caused instant, severe 8-out-of-10 pain stemming from in his neck, right shoulder, mid-back and right knee. Rivera denied ambulance treatment at the scene and first sought treatment at an emergency room 17 hours later. He complained of moderate neck tenderness, but the X-rays taken of his neck and back were negative. As a result, Rivera was diagnosed with a cervical strain, and received physical therapy and chiropractic care for the next four months for neck and back pain. After a brief deployment at the end of 2008, Rivera claimed that he required additional chiropractic treatment with Yosemite Chiropractic, where he received 26 treatments between December 2009 and September 2010. He claimed that as a result of his , he was honorably discharged from the Air Force in March 2010. He then sought treatment with Palo Alto VA Hospital, continuing into 2011. Rivera testified that he had been in at least 7/10 pain in all of the areas of his neck, right shoulder, mid-back and right knee constantly and without any relief every day since the subject March 2008 accident. He also denied any prior or subsequent accidents or to the same areas of his body. Rivera testified that he has been very limited by his ever since the accident, affecting his ability to play basketball, work out strenuously, swim, or be physically active. He specifically denied cliff diving while on the stand. Plaintiff’s counsel called Rivera’s current girlfriend to testify regarding how difficult Rivera’s had been on him and how she frequently needed to rub his back because of his pain. She also testified on direct that his life has been very limited due to his pain. Thus, Rivera sought recovery of compensatory damages, including $13,162.81 in past medical costs and an unspecified amount for his pain and suffering. Additionally, Rivera sought recovery of punitive damages due to Gardiner’s DUI. Plaintiff’s counsel only specifically asked the jury to compensate Rivera for the billed amounts at David Grant Medical Center and Yosemite Chiropractic, which totaled $6,869.53, and then asked the jury to use their best judgment in awarding Rivera the remainder of his special damages, and any punitive damages. Defense counsel noted that Rivera denied ambulance treatment at the scene and only mentioned back and neck pain when he went to the hospital 17 hours later. Counsel also noted that Rivera’s medical records reflected that by May 2008, his back pain had “resolved” and his neck pain was “3/10 minimal” by June 2008. Counsel further noted that a doctor’s note in July 2008 reflected that Rivera was “pain free” and “not taking any medications.” In addition, defense counsel contended that Rivera made no complaints of knee or shoulder pain prior to his brief deployment at the end of 2008. Counsel further contended that Rivera only began to mention knee and shoulder complaints in January 2009, and that MRIs taken of Rivera’s neck and lower back at Modesto Radiological Imaging in February 2012 showed degenerative findings. Defense counsel noted that Rivera’s medical records also reflected multiple post-accident workplace to his back and shoulder, as well as a motorcycle accident at 25 mph in March 2010, during which he hit his head. Counsel further noted that Rivera was involved in two car accidents in the four years prior to the subject accident, after which he received medical treatment to his neck, back and knee in both prior accidents and received prior chiropractic treatment from his post-accident chiropractor. Finally, defense counsel contended that Rivera had received medical care for scoliosis dating back to the prior decade. Thus, defense counsel argued that the most Rivera should be entitled to recover would be $1,400 in total damages for his initial four months of treatment that ended in July 2008, when his medical records reflected that he was “pain free.” Counsel argued that any subsequent complaint of pain was unrelated to the 2008 accident. During cross-examination, Rivera’s current girlfriend was presented with photographs of Rivera from her own Facebook account, which showed him diving head-first off of the top of a tall fishing boat into the ocean and treading water in the ocean while his girlfriend hung off his shoulders. As a result, the girlfriend confirmed that they had celebrated Rivera’s recent birthday at a local lake where Rivera went tubing behind a ski boat and also jumped off some “rocks.” The jury was then shown a video from her Facebook page depicting Rivera diving off a high cliff into the lake. Rivera’s former girlfriend, who was a passenger in Rivera’s vehicle during the subject accident and was his live-in girlfriend for two years post-accident, was also called by defense counsel to testify through a prior deposition. She claimed that Rivera never made any complaints of pain, aside from saying that he was “sore” on the night of the accident. She also testified that on the morning after the accident, Rivera helped her decorate her home for her child’s birthday party without any complaints of pain before he first sought ER treatment. The former girlfriend further testified that Rivera subsequently told her that he had a plan to make up as many physical complaints as he could in order to get out of work and to get as much money as possible in this lawsuit, and that when she asked him directly if he was actually injured, he replied, “No.”
Superior Court of Solano County, Solano, CA

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