Case details

Plaintiff claimed injuries and aggravations from rear-ender





Result type

Not present

cervical, elbow, fusion, herniated disc, lateral epicondylitis, left elbow, neck, right wrist, torn, triangular fibrocartilage complex, wrist
On Sept. 15, 2010, at approximately 4:25 p.m., plaintiff Mark Epstein, 57, a self-employed painter, was stopped in his vehicle on Niguel Road, waiting to make a right turn at the intersection with Crown Valley Parkway in Laguna Niguel, when he was rear-ended by a landscaping truck operated by Kevin Rhoads. The impact pushed Epstein’s vehicle into the intersection, allegedly causing to his neck, right wrist, and left elbow. Epstein sued Rhoads, individually and doing business as Kevin Rhoads Heritage Landscape etc. Epstein alleged that Rhodes was negligent in the operation of his truck in that Rhodes failed to stop, crushing the rear of his vehicle and pushing him into the intersection. Rhoads admitted liability for the accident., Epstein was taken by ambulance to an emergency room with complaints of neck, right wrist, and left elbow pain. He then followed up with his general practitioner a few days later and was ultimately diagnosed with disc herniations at C3-4 and C4-5. He was also diagnosed with a triangular fibrocartilage complex tear of his right wrist, as well as an aggravation of pre-existing lateral epicondylitis (tennis elbow). Epstein’s treatment consisted of physical therapy, an injection for his left elbow, two cervical epidural injections, and eventual surgery that consisted of a two-level anterior discectomy and fusion at C3-4 and C4-5. He also underwent a surgical repair of his TFCC tear. Epstein claimed that he will continue to require physical therapy as he recovers from his surgeries and that he will also need at least two visits with a neurosurgeon every year, as well as imaging studies to track his cervical spine. He claimed he will also require an adjacent level fusion within the next 15 years and then continuing physical therapy thereafter. Thus, Epstein sought recovery of $87,000 in past medical costs and $250,000 in future medical costs (for neck surgery and ongoing treatment). He also sought recovery of $800,000 in damages for his past pain and suffering, and $2.2 million in damages for his future pain and suffering. Defense counsel conceded to Epstein’s wrist injury and surgery, as well as the exacerbation of Epstein’s lateral epicondylitis. However, defense counsel argued that Epstein sustained only a soft-tissue injury to his cervical spine, for which surgery was not indicated at all. Furthermore, counsel argued that the main reason for Epstein’s fusion surgery, according to his own treating surgeon, was left arm weakness and pain, which defense counsel argued was caused by Epstein’s pre-existing lateral epicondylitis. The defense’s expert radiologist showed Epstein’s MRIs to the jury and opined that nothing on the MRI — such as impingement on the spinal cord — showed a need for cervical surgery. The defense’s expert orthopedic surgeon explained that Epstein’s complaints were not consistent with a disc injury requiring surgery and opined that Epstein sustained only a soft-tissue whiplash injury. The expert further opined that the proper treatment for Epstein’s cervical would have been physical therapy, followed by a comprehensive home exercise program. Defense counsel further argued that Epstein was able to continue working after the accident as a self-employed printer and that, per Epstein’s own testimony, he was able to work eight to 10 hours per day, six or seven days per week, consistently for nearly two years following the accident. Counsel argued that Epstein then stopped working these hours for reasons not related to his alleged .
Superior Court of Orange County, Santa Ana, CA

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