Case details

Minor impact could not cause injuries alleged, defense argued





Result type

Not present

aggravation of pre-existing condition, back, dystonia, neck
On Sept. 16, 2010, plaintiff Fernando Panameno, 52, an unemployed and disabled El Salvadorian native, was a front seat passenger in a 2005 Toyota Corolla owned and operated by his daughter. When their vehicle stopped on southbound Western Avenue in Los Angeles to allow a pedestrian to cross the street in the pedestrian crosswalk, it was rear-ended by a 1996 Toyota Corolla operated by Chie Mori, a Japanese foreign student. Panameno claimed to his neck and back as a result of the accident. Panameno sued Mori, alleging that Mori was negligent in the operation of her vehicle. Panameno’s counsel noted that the accident was investigated by the Los Angeles Police Department and that Mori was found to be at fault. However, there were no independent witnesses to the accident. Mori, who was distracted before the accident, applied her brakes when she observed the vehicle in front of her had stopped. However, Mori was unable to avoid “lightly tapping” the rear of the vehicle that Panameno was in. Thus, Mori conceded liability., Panameno claimed the accident aggravated a pre-existing neck and back injury that he sustained in an on-the-job accident in 2004, and which required him to undergo a four-level cervical fusion in 2006. Thus, he was on total social security disability at the time of the accident. On the day after the accident, Panameno started to treat his alleged with his chiropractor. He claimed severe, constant and daily pain to his neck and lower back. Panameno subsequently received chiropractic adjustments and physical therapy on 24 occasions between Sept. 17, 2010 and Dec. 3, 2010. He then did not seek any further treatment for his alleged until 27 months later, when his attorney referred him to an orthopedist, who examined him on two occasions and had him undergo MRIs of his neck and back. The plaintiff’s treating orthopedist opined that Panameno’s were aggravated by the accident. While he recommended that Panameno be placed on an exercise program because of his ongoing pain, he referred him to a pain management specialist. The plaintiff’s treating orthopedics expert opined that Panameno would require future care for his aggravated over his anticipated future life of 25.8 years, consisting of periodic orthopedic examinations and MRIs of his neck and back, a cost of which would be approximately $35,000. Eleven days after he first saw his treating orthopedics expert, Panameno was examined by the pain management specialist for the first time. The plaintiff’s treating pain management physician concluded that Panameno had cervical dystonia as a result of the accident and gave him Botox injections on two occasions. He opined that Panameno will need periodic Botox injections for the rest of his life, at a cost of approximately $115,000. Thus, Panameno sought recovery of past medical costs of $17,800, future medical costs of $150,000, past pain and suffering of $72,000, and future pain and suffering of $600,000. Defense counsel contended that the accident was relatively minor and that the only damage to Panameno’s daughter’s vehicle consisted of minor scratches to the rear bumper cover, at a repair estimate of $558.12, while Mori’s vehicle sustained minor scratches to the front bumper cover, at a repair estimate of $774.73. As a result, Mori’s insurance carrier settled Panameno’s daughter’s property damage claim prior to trial. Counsel also noted that the plaintiff’s accident reconstruction expert, who also holds a Ph.D. in public health, with a focus on epidemiology, opined that the accident involved a closing speed of 7 to 10 miles per hour, resulting in acceleration forces of over 4 units of gravitational force on Panameno, which likely exacerbated his pre-existing . However, this expert was precluded from rendering opinions on forensic epidemiology and/or medical causation at a 402 hearing. The defense’s accident reconstruction/biomechanical expert testified that the impact speed involved a chance of velocity of 2 mph and that the forces involved in the accident were at a lower range of forces, such as the type a person experiences in his or her everyday activities. Based on this testimony, defense counsel argued that had Panameno aggravated his pre-existing in the accident, he would have done so on a daily basis. The defense’s medical expert opined that the medical services rendered to Panameno were neither reasonable nor necessary as a result of the accident, and that even assuming Panameno aggravated his pre-existing , Panameno would have only required a home exercise program. The medical expert also opined that both Panameno’s ongoing complaints and the medical services provided by his treating physicians were neither reasonable nor necessary, and that, in any event, were unrelated to the accident. In addition, the defense expert disputed the plaintiff’s treating pain management expert’s diagnosis of cervical dystonia, noting that Panameno did not have any symptoms when he was examined by the plaintiff’s treating orthopedics physician 11 days earlier. Thus, the defense’s medical expert opined that there was no necessity for any future care other than exercise.
Superior Court of Los Angeles County, Los Angeles, CA

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