Case details

Plaintiff’s ongoing complaints not caused by accident: defense





Result type

Not present

back, lumbar elbow, neurological, radicular pain, radiculitis, strain
On April 16, 2015, plaintiff John Plume, 46, a driver for movie production studios, was riding a bicycle in a marked bike lane when a door from a parked DISH Network van opened in front of him. Plume allegedly tried to push the door closed so that he could safely pass between the parked van and a city bus in the adjacent traffic lane. However, he claimed he injured his elbow on the door and hurt his back trying to close it. Plume sued DISH Network California Service Corp., which was initially erroneously sued as “DISH Network Corp.” and “DISH Network LLC,” and the installer that was using the van, Melvin Campos. Plume claimed that Campos walked quickly into the street and “flung” open the door, creating an emergency. He alleged that since he had no time to react or avoid the door, he attempted to push it close as he passed, but he injured his elbow and back. Plume further claimed that warning cones should have been placed at the front and rear bumpers of the van and that although post-accident photos showed the warning cones, they were not present at the time of the incident and were placed in position after he left the scene. Campos claimed that he walked along the side of his van and looked before opening the driver’s side door, but that he never saw Plume until he was inside the van and closing his door. The defense’s accident reconstruction expert did a time and distance analysis that showed that Plume should have seen Campos walking into his path of travel at least 4.8 seconds before the impact, and likely even earlier. Based on the expert’s finding, defense counsel argued that Plume was contributorily negligent, in that Plume had plenty of time to slow down, move to his left, or simply yell at Campos to not open the door, but chose not to do so. Counsel contended that, instead, during the five seconds before the impact, Plume took no action at all until he decided to swat at the open door., Plume sustained a laceration of his right elbow. He also claimed the accident caused back strains, resulting radicular pain into his legs. After the accident, Plume called an ambulance and medical personnel bandaged his elbow and advised him to get stitches, which he did. Plume claimed that he started to experience back pain within a week of the accident, so he underwent about a month of physical therapy for a back strain. Later, in July 2015 and August 2015, he complained of shooting pain into his legs, eventually resulting in the placement of a spinal cord stimulator to control this alleged pain. Plume underwent prior lumbar surgeries and had not yet returned to work at the time of the April 2015 accident. However, plaintiff’s counsel argued that the spinal cord stimulator was needed because of the accident, and presented the treating physician who placed the implant. The non-retained physical medicine expert testified that the April 2015 accident caused the need for Plume’s implant. Plaintiff’s counsel argued that the entire $54,000 in post-accident medical costs was attributable to the April 2015 accident and that there was no contributory negligence on the part of Plume. Plume sought recovery of $904,000 in total damages, including $54,000 in past medical costs, $175,000 for his past pain and suffering, and $675,000 for his future pain and suffering based on his life expectancy. Jennifer Hodges initially presented a derivative claim, seeking recovery for her loss of consortium, but her claim was dismissed before trial. Defense counsel contended that Plume had a long-standing history of back problems, including two prior lumbar surgeries. Counsel also contended that Plume’s medical records, including records from his treating expert, diagnosed Plume with “post-laminectomy syndrome,” also known as “failed back surgery syndrome.” Based on the records, defense counsel argued that Plume continued to have leg symptoms after his prior back surgeries and that the condition was not a result of any trauma. Defense counsel noted that during the first two instances where leg pain was mentioned after the accident, in July 2015 and again in August 2015, Plume mentioned the van door incident, but also mentioned bicycle riding and surfing in connection with leg pain starting just before the visits. Although Plume claimed that he had given up surfing and that surfing was not responsible for his complaints, defense counsel presented an unrelated medical questionnaire, filled out by Plume in August 2015, which confirmed that even after making his leg complaints, his hobbies were “biking and surfing.” Defense counsel asked the jury to only award Plume under $5,000 in total damages. Counsel argued that only the urgent care bills for the placement of the elbow stitches and the early physical therapy were related to the accident and that the confirmation that Plume was able to take over 20 mile bike rides and surf in July 2015, as reported to his doctor, limited Plume’s past pain and suffering damages to about two months. In addition, defense counsel argued that because the stimulator was unconnected to the subject incident, there was no future pain and suffering.
Superior Court of Los Angeles County, Torrance, CA

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