Case details

Plaintiff only aggravated degenerative condition, defense claimed





Result type

Not present

annular tear, back, herniated disc, lower back, neck
On Nov. 3, 2011, plaintiff John Cloak, 35, a mortgage banker, was driving his 2007 BMW 725i on Newport Boulevard, in Newport Beach. As he traveled into the intersection with Hospital Road, his vehicle struck the left, rear wheel of a 2004 Toyota Avalon, which was making a right turn from Hospital Road onto Newport Boulevard. The force of the impact broke the right tire axle of Cloak’s vehicle and allegedly caused an injury to Cloak’s lower back. Cloak sued the driver of the Avalon, Florence Irwin. Cloak alleged that Irwin made an unsafe right turn in front of him against a red traffic light. Thus, he claimed that Irwin was negligent in the operation of her vehicle. Irwin conceded liability., After the accident, Cloak walked from the scene to a sushi restaurant and then took a taxi to work. He was ultimately diagnosed with a lumbar disc herniation at the L5-S1 level. Cloak alleged that the herniation resulted in an annular tear around the disc, causing a near complete loss of disc height. He subsequently underwent two rhizotomy procedures, two facet block procedures, and general chiropractic treatment. Cloak complains of chronic pain and he claimed that due to his , he has difficulty with many activities of daily living, such as high-intensity exercises and playing golf. However, he acknowledged that although exercise and golf causes him pain, he does continue to perform those activities. He also claimed that may require lower back surgery due to his . The plaintiff’s expert orthopedist testified with “100% medical certainty” that the subject accident caused the Cloak’s disc height loss. However, defense counsel noted that the testimony was based on an incomplete review of Cloak’s imaging studies. Defense counsel argued that Cloak’s injury was an aggravation of pre-existing degenerative , and not the result of trauma. Counsel noted that Cloak did not seek emergency treatment after the accident and that Cloak testified that he had received two epidural steroid injections one year before the subject accident due to progressive lower back pain that became more severe over a six-month period. In addition, over the objection of Cloak’s counsel, the defense was allowed to reference a subsequent rear-end accident, which occurred in 2012. Defense counsel argued that this accident explained Cloak’s increase in pain over time. However, Cloak maintained that the 2012 accident did not aggravate his condition. The defense’s biomechanical expert opined that the subject accident did not provide the mechanism required to injure Cloak’s lower back. Instead, the defense expert opined that the 2012 car accident could have caused Cloak’s lower back injury. The defense’s expert orthopedist opined that, based upon Cloak’s alleged symptoms, Cloak sustained an aggravation of a pre-existing degenerative condition. The expert testified that Cloak’s pain was likely facet mediated and not caused by the L5-S1 disc. He also testified that some of Cloak’s facet blocks and rhizotomies constituted reasonable treatment, but that any future surgery was unnecessary. The defense’s expert radiologist compared all the imaging studies and concluded that there were no changes evident in the MRIs before or after the subject accident. In addition, defense counsel presented evidence, which included social media posts and photographs, which showed Cloak holding a stand up paddle board and visiting batting cages while allegedly undergoing treatment.
Superior Court of Orange County, Orange, CA

Recommended Experts


Get a FREE consultation for your case