Case details

Plaintiff was not injured in multiple vehicle crash: defense





Result type

Not present

lower back, neck, shoulder, soft-tissue injuries
On June 2, 2012, plaintiff Malcom Johnson, 42, a training officer for the Department of Motor Vehicles, was operating his a 2008 Chevy Impala on the northbound San Diego Freeway, also known as Interstate 405, in Costa Mesa, when he came to a stop for traffic ahead of him. Shortly thereafter, a 2008 Volkswagen Rabbit operated by Shayan Safai changed lanes and rear-ended Johnson’s vehicle, pushing the Impala into the rear of a 2000 Chevy Blazer operated by David Harm. As a result, Harm’s vehicle rear-ended a 2009 Honda Civic operated by Ashley Kilgore, who subsequently rear-ended a 2007 Honda Accord operated by Philip Vo. Ultimately, five vehicles were involved in the chain-reaction collision. None of the vehicles had passengers. Johnson claimed to his neck, shoulder and lower back. (The other drivers brought separate claims, which they ultimately settled, and were not part of Johnson’s case.) Johnson sued Safai, alleging that Safai was negligent in the operation of his vehicle. Safai admitted liability by the time of trial., Johnson alleged soft-tissue to his neck and shoulder. He also alleged he sustained a herniated L5-S1 disc with an annular tear and loss of disc height. Johnson underwent one epidural steroid injection, one lumbar facet joint block (an injection of a local anesthetic), and a rhizotomy (a neurosurgical procedure that selectively destroys problematic nerve roots in the spinal cord). He also underwent a discogram, which is a diagnostic procedure in which X-ray dye or contrast material is injected into the discs of the spine. Johnson claimed the discogram supported the decision for surgical intervention. As a result, he underwent a one-level discectomy and fusion surgery about one month later, which was about two years after the subject accident. Plaintiff’s counsel noted that the subject accident caused $7,489 worth of damage to Johnson’s vehicle. As a result, the vehicle was declared a total loss. Safai’s vehicle sustained $14,007.50 worth of total damage. It was also declared a total loss. Thus, plaintiff’s counsel argued that the accident caused an injury to Johnson’s L5-S1 disc, which caused on-going lower back pain that required surgery to alleviate the pain. Counsel contended that Johnson had no history of back pain and, therefore, the only explanation for Johnson’s pain was the subject accident. Counsel further argued that Johnson tried everything to treat his pain conservatively and that surgery was Johnson’s last resort. The plaintiff’s treating neurosurgery expert opined that since there was no prior history of back pain, the accident was the cause of Johnson’s on-going pain. The expert also opined that, based upon the history of Johnson’s complaints, the degenerative changes seen on the MRI two months after the accident were likely caused by the accident. The expert admitted that Johnson did not have any complaints of radiculopathy until 22 months after the accident, but opined that this could still have been attributed to the subject accident. The treating neurosurgeon testified that he referred Johnson out for a discogram, which came back positive, and he explained that if the discogram was negative, he probably would not have done the surgery. In addition, the expert opined that due to adjacent segment disease, Johnson would likely require another lumbar fusion in 15 to 20 years. The plaintiff’s expert radiologist testified that there was a loss of disc height from the first MRI, which was taken two months after the accident, when compared to the one taken about two years later. He opined that the loss of disc height showed that the subject accident caused the initial injury, including the annular fissure, and that the accident was responsible for starting a cascading effect on the lumbar disc that progressively got worse as time went on. He also opined that the discogram was performed correctly. The plaintiff’s treating radiologist, who performed the discogram, also testified that the discogram was performed correctly and was positive for discogenic pain at the L5-S1 level. Johnson claimed that he missed about one week of work after the subject accident, but the past-loss-of-earnings claim was waived. However, he alleged that because of his , he needed to transfer his job from being a trainer at the DMV to an office manager. He also alleged that due to his and back surgery, he would have to retire about 14 years early and would therefore suffer about $530,000 in future lost earnings. The plaintiff’s vocational rehabilitation specialist opined that Johnson was likely to retire early due to his , and suffer a loss of income and fringe benefits, which would include the loss of medical insurance. Plaintiff’s counsel contended that all of Johnson’s treatment was on a lien basis and attorney referred and that the total cost of treatment, including the surgery, was about $280,000. Counsel also contended that Johnson would need a future fusion surgery in about 15 to 20 years due to adjacent segment disease and that the cost of the procedure was about $400,000. The plaintiff’s life care planner also testified that, based upon the amount billed by various area hospitals, the cost of Johnson’s future surgery was about $400,000. Thus, plaintiff’s counsel asked the jury to award Johnson $5.7 million in total damages. Defense counsel argued that Johnson did not sustain an injury to his lumbar disc and that, at best, if Johnson’s symptoms were to be believed, Johnson sustained a non-complicated, soft-tissue injury. The defense’s orthopedic surgery expert opined that Johnson did not have any complaints of radiculopathy for almost two years and it the disc had been injured, Johnson would have suffered immediate symptoms. The expert also testified that the MRI did not show any nerve impingement nor any other indication of a traumatic injury, all of which would have been visible on the scan. Instead, Johnson’s MRI allegedly showed normal degenerative changes. Thus, the expert testified that if Johnson was injured, six weeks of physical therapy and some visits to a physician would have been indicated, which would have resulted in charges totaling only about $5,000. The expert orthopedic surgeon further opined that none of the treatment Johnson received was necessary, including the surgery, and that even with the fusion surgery, no future surgery would be necessary. The defense’s radiology expert testified that after comparing the MRIs, he found that there was no change in disc height and that the MRIs did not reveal any nerve impingement. He also testified that the discogram was done incorrectly because the plaintiff’s treating radiologist failed to inject dye into the nucleus of the disc and that, therefore, the test was unreliable. The defense’s biomechanical expert, who was not contradicted, testified that based upon a database of over 14,000 real world crashes, there was a zero percent chance that Johnson sustained a disc injury with radiculopathy to his lower back as a result of the subject accident. The expert also testified that the mechanism to injure the L5-S1 disc was not present and that to injure this disc, there needed to be extreme flexion and compression. However, he testified that the fact that Johnson was wearing his seatbelt and that the airbag deployed actually prevented the lower back injury. The defense’s expert further testified that the rear impact made Johnson’s spine go into extension, which is the opposite mechanism needed. The defense’s expert economist opined that the plaintiff’s vocational rehabilitation expert used double accounting. The defense’s expert noted that the plaintiff’s expert testified in deposition that he added 48.5 percent to Johnson’s salary as a fringe benefit multiplier. However, the defense’s expert economist testified that the amount represented double accounting, since benefits such as paid time off, vacation and medical insurance are part of the salary, and not in addition too it. The defense’s expert also testified that since Johnson is a member of the state employee union, if Johnson were to retire early, he wouldn’t lose his health insurance, as the plaintiff’s expert stated, but would, in fact, have his insurance paid for by the state of California for the rest of his life. Thus, the defense’s expert economist opined that all of the plaintiff’s vocational rehabilitation expert’s calculations were incorrect and inflated. In addition, the defense’s expert testified that Johnson’s alleged future loss of earnings was based upon the premise that Johnson had a work disability, but that all experts (for both the plaintiff and defense) testified that Johnson had no work disability.
Superior Court of Orange County, Orange, CA

Recommended Experts


Get a FREE consultation for your case