Case details

Mother claimed rear-ender caused daughter’s brain injury





Result type

Not present

brain, brain injury, cognition, impairment, mental, neurological, neurological impairment, psychological, subdural hematoma, traumatic brain injury
On June 27, 2009, plaintiff Karen Patino, 11, was seated, unrestrained and in the left, rear passenger seat of a Chrysler Sebring operated by her mother, Maria Patino, who was driving on Avenue 137 in Tulare. After their vehicle and a nonparty Geo Metro that was directly behind them stopped for traffic, a Chevrolet Avalanche operated by Mario Torres collided with the rear of the Geo Metro, causing it to be pushed forward and left across the opposing lane of travel. Torres’s vehicle then continued forward and rear-ended the Patinos’ vehicle, which was pushed forward and to the right, spinning 180 degrees and coming to rest next to a fence pole. Karen sustained head in the crash. Maria Patino, acting as her daughter’s guardian ad litem, sued Torres and the registered owners of the Chevrolet Avalanche, Dawn Atwater and Harmon Atwater. She alleged Torres was negligent in the operation of her vehicle by being inattentive and/or traveling too fast for the circumstances. She also alleged the Atwaters were vicariously liable for Torres’ actions. Torres and the Atwaters subsequently cross-complained against Mrs. Patino. However, the cross-complaint was settled with Mrs. Patino’s insurer, Allstate Insurance Co., agreeing to pay Torres and the Atwaters $7,500 prior to trial. At trial, Torres alleged that, for some unknown reason, when he tried to move his foot to the brake to stop, his leg did not move and as a result, he rear-ended the non-party vehicle. Defense counsel also initially asserted a seat belt defense as a result of Mrs. Patino not having Karen wear a seat belt at the time of the collision. However, the defendants ultimately conceded fault for the accident and withdrew the seat belt defense as to Karen., Karen was airlifted from the scene due to concerns of a head injury. Initial films revealed a subdural hematoma with a midline shift. Thus, Karen was diagnosed with a mild traumatic brain injury. However, she sought no significant medical care for over a year after the accident, other than seeing her pediatrician twice after reporting no accident-related residuals. Plaintiffs’ counsel contended that Karen, who is now 14, suffers from permanent neurocognitive deficits. The plaintiffs’ neuroradiology experts testified that the subdural hematoma and CT findings were sufficient to cause neurocognitive deficits and deferred to the neuropsychologists as to whether there were any deficits. They also testified that there were no underlying congenital abnormalities. In addition, the plaintiffs’ neuropsychologist, using some of his findings and some of defense’s neuropsychologist’s findings, opined that Karen had mild visual spatial processing and attentional deficiencies. Thus, plaintiffs’ counsel asked the jury to award $6,162 in medical costs, and $425,000 in past and future non-economic damages. Plaintiffs’ counsel noted that in spite of strong objections and motions in limine to exclude it, the court allowed testimony regarding Karen’s prior history of marijuana use, sales and general “partying” behavior. Counsel claimed that this improper character testimony was allowed under the guise that the defendants’ neuropsychologist attributed any cognitive deficits to a general “unstable” home/social situation. The defense’s pediatric neuroradiology expert agreed with the plaintiffs’ neuroradiology experts regarding the acute findings, but that the findings of partial/complete absent septum pellucidum and enlarged/malformed ventricles were congenital findings. The defense’s expert also opined that both the acute and congenital/developmental findings were consistent with neurocognitive deficits. However, he deferred to the neuropsychologists as to whether there were any deficits, and whether they predated or postdated the accident. The defense’s neuropsychology expert testified that based on his testing; the testing of the plaintiffs’ neuropsychologist; and a review of pre-accident and post-accident medical, emotional, behavioral, educational and developmental history, Karen had no deficits and that if she did, as opined by the plaintiffs’ psychological expert, one could not say they were caused by the accident. Defense counsel admitted that Karen suffered a mild traumatic brain injury, but argued that Karen suffered no permanent residuals. Thus, counsel suggested that the jury award $6,162 in medical expenses, $11,000 in past non-economic and nothing for future non-economic damages.
Superior Court of Tulare County, Tulare, CA

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