Case details

Plaintiff claimed toe fracture from employee’s negligence





Result type

Not present

foot, fracture, heel, hip, shoulder, toe
On July 2, 2010, plaintiff Patricia Arias, 36, was looking at vehicles in the parking lot of Sunrise Ford, a car dealership in Fontana, when her foot was run over by a Sunrise Ford porter who backed into her. Arias sued NGP Motors Inc., which was doing business as Sunrise Ford. She alleged the NGP Motors was vicariously liable for the negligent actions of its porter. Defense counsel contended that Arias was distracted on her cell phone, making her comparatively negligent. However, NGP Motors ultimately conceded liability on the first day of trial., Arias sustained a pinky toe fracture to her right foot. She subsequently went to by ambulance to an emergency room on the day of the incident. She then saw her primary care physician a few days later, just one time. At her deposition in May of 2012, one year and 10 months after the accident, Arias testified that her lifestyle had not changed and that she did not plan on seeing any additional doctors. However, two years and one month after the accident, or three months after the deposition, she saw her treating physician and an orthopedics expert that was referred to her by her counsel. Arias was ultimately referred for a foot MRI due to a suspicion of a neuroma, but no neuroma was visible. Instead, according to MRI, Arias had sustained a fracture of her right pinky toe, which had healed, as the mid-foot alignment was normal and the Lisfrac’s ligament was well-seen and normal. Arias also claimed that she injured her shoulder and hip in the accident, but that it resolved within two weeks, after just one physical therapy session. At trial, Arias agreed that her lifestyle had not been affected past the first 2.5 months post-accident, when she was unable to wear high heels or horse around with her kids. The plaintiff’s treating physician and orthopedic surgeon, whom she was referred to, mistakenly testified that there was an effusion of the fifth metatarsophalangeal joint, the small toe, when the MRI reflected an effusion in the first metatarsophalangeal joint, the big toe, and the expert acknowledged the mistake on the stand. Arias claimed that she had $2,564.17 in ambulance bills and Howell medical costs for the emergency room visit, one physical therapy visit, and one visit to her primary care physician. She also claimed her orthopedic bills on lien amounted to $5,142. Thus, Arias sought recovery of damages in excess of $250,000, with $22,500 for a future neuroma resection and $9,463.47 for medical expenses to date. Defense counsel noted that Arias testified that she periodically gets a sharp, stabbing pain in her toe, which she described as a needle piercing through her toe. Counsel also noted that Arias testified that due to her ongoing pain, she would go forward with the surgery. However, defense counsel argued that only two of the orthopedic visits were reasonable, at a reduced cost, in addition to the ambulance, E.R., one physical therapy session, and one primary care physician visit. The defense’s orthopedic expert testified that a neuroma resection would cost $10,000, not $20,000, but that any surgery would be “singularly ridiculous.” However, the expert conceded that with the type of fracture sustained by Arias, she would have ongoing, periodic discomfort in her toe for life. Defense counsel conceded that $5,400 for medical expenses to date was reasonable and necessary. Thus, counsel suggested that the jury award somewhere in the $15,000 to 20,000 range, and that no amount should be allocated for any future surgery. Plaintiff’s counsel noted that the defense’s orthopedic expert was a foot specialist, as opposed to a general orthopedic doctor, like the plaintiff’s expert.
Superior Court of San Bernardino County, San Bernardino, CA

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