Case details
Plaintiffs lied about who was driving at time of crash: defense
SUMMARY
$0
Amount
Verdict-Defendant
Result type
Not present
Ruling
KEYWORDS
back, head, headaches, lower back, mid-back, neck, pain, right arm, right leg, shoulder
FACTS
At around 6:30 p.m. on Jan. 14, 2014, plaintiff Ana Garduno De Nunez, 55, a cook, and her nephew, plaintiff Carlos Perez, 33, a mechanic, were allegedly traveling in a 2000 Nissan Exterra, which was owned by Garduno De Nunez. While they were northbound on Benson Avenue, in Chino, they entered the intersection with Riverside Drive and collided with a Ford Focus operated by Fabio Ortega, who was making a left turn from southbound Benson Avenue onto Riverside Drive. Garduno De Nunez claimed to her head, neck, back, right arm and shoulder, and right leg. Perez claimed to his head, neck, back, and right shoulder. Garduno De Nunez and Perez sued Ortega and Ortega’s mother, the owner of the Ford Focus, Fabiola Marchant. Garduno De Nunez and Perez alleged that Ortega was negligent in the operation of the Ford Focus and that Marchant was vicariously liable for Ortega’s actions. Plaintiffs’ counsel contended that Garduno De Nunez was driving the Nissan Exterra at the time of the accident and that Perez was a front seat passenger in the vehicle. Counsel also contended that Ortega was negligent for attempting a left turn in front of the Nissan, causing the collision. Defense counsel argued that Perez was the driver of the Nissan and the only occupant in the vehicle at the time of the collision. Ortega testified that after the crash, both vehicles pulled into a gas station located at the corner of the intersection and that he observed Perez driving the vehicle as it pulled up next to his vehicle in the parking lot. He also claimed that he observed Perez talking on a cell phone as he drove into the gas station and that although he attempted to talk to Perez, he was unable to communicate with him since Perez did not speak English. In addition, Ortega claimed that shortly after pulling into the gas station, he observed Garduno De Nunez running across Benson Avenue toward the gas station and then Garduno De Nunez claimed that she was driving the Nissan at the time of the collision and that Perez was a front seat passenger. (It was ultimately established that Garduno De Nunez and Perez resided with their families in an apartment one block from the scene of the collision.) After Garduno De Nunez arrived at the scene, Ortega called the police. Defense counsel contended that the accident was investigated by the Chino Police Department, which issued a report concluding that Perez was driving the Nissan without a driver’s license at the time of the collision. The investigating officer also made no mention in the report of Garduno De Nunez being a passenger in the vehicle at the time of the collision. Moreover, the police report made no reference to any by either Garduno De Nunez or Perez. The officer did not issue any citations. However, one month after the crash, Garduno De Nunez and Perez filed a supplemental report with the Chino Police Department, claiming that Garduno De Nunez was the driver of the Nissan and that Perez was a front seat passenger at the time of the crash. Defense counsel argued that Ortega had no reason to lie, since he accepted responsibility for the crash, and that the plaintiffs had a motive, since Perez was an undocumented alien without a driver’s license. Counsel noted that, under California law, Garduno De Nunez’s vehicle could have been impounded and Perez could have been cited. Thus, defense counsel argued that Garduno De Nunez and Perez concocted the story for monetary gain., Garduno De Nunez claimed that she suffered headaches, and pain in her neck, mid-back, lower back, right shoulder, right arm/elbow, and right leg. She subsequently began treating with a chiropractor and presented to an orthopedic surgeon at Cedar Medical Group, in Ontario, Calif., on Jan. 30, 2014. She then underwent 25 sessions of physical therapy between Jan. 30, 2014, and May 25, 2014. While treating at Cedar Medical Group, Garduno De Nunez underwent MRI scans of her cervical and lumbar spine at F&M Radiology, in Encino. She also treated with a neurologist (a non-retained expert) at Westwood Neurodiagnostic Center, in Los Angeles, on April 28, 2014, and May 19, 2014. On each occasion, Garduno De Nunez received lumbar epidural injections. While Garduno De Nunez never saw any medical providers after being discharged from Cedar Medical Group on May 25, 2014, she claimed she still experiences constant pain in her lower back and right leg. Perez claimed that he suffered headaches, and pain in his neck, mid-back, lower back, and right shoulder. On Jan. 30, 2014, Perez also began treatment from the same chiropractor and orthopedic surgeon from Cedar Medical Group that Garduno De Nunez saw. Perez ultimately underwent 29 sessions of physical therapy between Jan. 30, 2014, and May 9, 2014. He also underwent MRI scans of his cervical and lumbar spine at F&M radiology on March 31, 2014, and, on April 28, 2014, underwent one neurological examination by the same neurologist that treated on Garduno De Nunez. Perez testified that after undergoing treatment, he had no residual complaints. The plaintiffs’ medical experts testified about the medical services rendered to both Garduno De Nunez and Perez, and the charges therefore. They also opined that the medical services rendered were reasonable and necessary. Plaintiffs’ counsel noted that the plaintiffs’ Nissan was deemed a total loss. Since Ortega accepted responsibility for the accident, the defendants’ insurance carrier settled Garduno De Nunez’s property damage for $3,261. The defendants’ Ford sustained major damage to the passenger side, the repair estimate for which exceeded $7,000. At trial, Garduno De Nunez sought recovery of $13,290 for past medical expenses. She also sought recovery of damages for her past and future pain and suffering. Perez sought recovery of $11,915 for his past medical expenses and an unspecified amount of damages for his past pain and suffering. Neither Garduno De Nunez nor Perez made claims for loss of earnings or loss of earning capacity. The defense’s expert orthopedic surgeon testified about the medical services rendered to each plaintiff and the charges therefore. However, the expert opined that the medical services rendered were neither reasonable nor necessary. He also opined that there was no indication for the MRI scans that the plaintiffs underwent or the lumbar epidural injections Garduno De Nunez received. The expert further pointed out that Perez told the plaintiffs’ non-retained treating neurologist that he had pain in his left shoulder and left upper chest from the seat belt. The defense’s expert orthopedic surgeon explained that this pain was consistent with an injury to the driver of a vehicle, as opposed to a front seat passenger. The defense’s accident reconstruction/biomechanical expert opined that the forces imposed on the occupant(s) of the Nissan as a result of the collision were within the range of forces a person experiences in his or her everyday activities. Thus, defense counsel disputed the plaintiffs’ alleged and damages, noting that the police report from the Chino Police Department made no reference to any to either Garduno De Nunez or Perez, and argued that Garduno De Nunez and Perez concocted the story for monetary gain.
COURT
Superior Court of San Bernardino County, San Bernardino, CA
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INJURIES:
- anxiety
- brain
- brain damage
- brain injury
- cognition
- depression
- epidural
- extradural hematoma
- face
- facial bone
- fracture
- head
- headaches
- hearing
- impairment
- insomnia
- loss of
- mental
- nose
- psychological
- scapula
- sensory
- shoulder
- skull
- speech
- subdural hematoma
- tinnitus
- traumatic brain injury
- vision
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