Case details

High-speed rear-ender caused multiple injuries: passenger





Result type

Not present

back, brain, brain injury, chest, face, facial laceration, fracture, fusion, lumbar, nose, rib, traumatic brain injury
On Sept. 11, 2009, at approximately 3:30 a.m., plaintiff Joseph Berry, 64, a genetic cow analyzer, was a sleeping passenger in a truck parked on the shoulder of Interstate 5, near Oceanside. The truck had stopped because the driver, plaintiff Mark Cogburn, needed to urinate. While the vehicle was stopped, it was rear-ended at a high rate of speed by a sport utility vehicle operated by Conner Hicks, 19, who had pulled over to the shoulder. Berry claimed to his head, face, back and ribs, while Cogburn claimed a shoulder injury. Berry sued Conner Hicks and the owners of the SUV, Lance and Risa Hicks, Conner Hicks’ parents. Berry alleged that Conner Hicks was negligent and reckless in the operation of his vehicle, and that Lance and Risa Hicks were liable for the accident for negligently entrusting their son with the SUV. Cogburn ultimately settled his shoulder injury claim, and Lance and Risa Hicks settled with Berry for $15,000 (the statutory liability limit) on the eve of trial. Berry contended that Conner Hicks recklessly rear-ended the truck at 80 to 85 mph, causing total destruction of both vehicles. Berry’s counsel noted that Conner Hicks was ultimately arrested for felony reckless driving, with criminal charges pending. Conner Hicks asserted his Fifth Amendment right and did not testify during discovery or at trial, where liability was admitted., Berry sustained 16 rib fractures; multiple arm, lumbar and thoracic fractures; facial lacerations; a mild traumatic brain injury; internal bleeding; and other internal . He was subsequently taken from the scene of the accident by ambulance and brought to an emergency room. Berry remained hospitalized for over one month and he underwent four surgeries. Berry underwent a lumbar decompression on Dec. 11, 2009, which resulted in complications due to a serious infection that required another hospitalization. He also underwent a three-level lumbar fusion in April 2011, which failed. Another operation followed, which involved more extensive fusions and the insertion of titanium rods. However, one of the rods broke, and all experts agreed that Berry is facing yet another, more extensive fusion of nearly his entire spine, which would involve two procedures (posterior and anterior) with an uncertain prognosis. Berry claimed that prior to the accident, he was a successful bull semen sales and genetic cow analyzer who serviced dairies in many states and earned roughly $800,000 the year before the crash. He alleged he attempted a return to work, but his forthcoming surgeries and recovery time will make it increasingly difficult. Thus, he claimed that he will continue losing customers. In addition, Berry claimed he will have to retire at 70 now and will suffer at least five years of lost profits. As a result of his back condition, Berry claimed he has difficulty even dressing himself. He also claimed, in regard to his mild traumatic brain injury, he suffers residual consisting of major depression, severe anxiety, cognitive deficits and suicidal ideation. Thus, Berry claimed past medical expenses of $978,280, and a life care plan projected between $2,905,837 and $3,396,731. He further claimed present value lost earnings of $3,779,680 and property damages (uncontested) totaling $184,302. In addition, he sought recovery of $7 million in damages for his past pain and suffering and $28 million in damages for his future pain and suffering. His wife, Nancy Berry, initially brought a claim for her loss of consortium, but she ultimately settled for $250,000. Defense counsel did not dispute the alleged new Mr. Berry sustained in the accident, but argued that Mr. Berry had a pre-existing lumbar condition and would have likely needed at least one decompression surgery regardless of the accident. Counsel also argued that the fusion surgery and resulting complications were due to Mr. Berry’s pre-existing condition, and not related to the accident. Defense counsel contended that Mr. Berry would likely continue to work, even with ongoing back symptoms, because he had done so for four years prior to the accident. Thus, defense counsel asked the jury to apportion damages based on Mr. Berry’s pre-existing and accident-related .
Superior Court of San Diego County, Vista, CA

Recommended Experts


Get a FREE consultation for your case