Case details

Rear-end crash caused lost business opportunity: plaintiff





Result type

Not present

anxiety, brain, brain damage, brain injury, cervical, closed head injury, cognition, concussion, head, headaches, mental, neck, psychological, strain, traumatic brain injury
On June 1, 2015, plaintiff Margaret O’Kelly, 51, a self-employed business owner, was stopped in traffic on northbound State Route 29, also known in St. Helena as the Silverado Trail, when her sport utility vehicle was rear-ended by a compact vehicle operated by Mariah Bryant. O’Kelly claimed to her head. O’Kelly sued Mariah Bryant and the owner of Ms. Bryant’s vehicle, Randal Bryant. O’Kelly alleged that Ms. Bryant was negligent in the operation of her compact vehicle and that Mr. Bryant was vicariously liable for Ms. Bryant’s actions. Mr. Bryant was ultimately dismissed from the case, and Ms. Bryant conceded liability. The matter proceeded to a trial on damages., O’Kelly claimed she suffered a mild traumatic brain injury with associated cognitive deficits, including short-term memory issues, multi-tasking difficulty, diminution of her executive function capacity and word recall issues. She also claimed she suffered physical pain, including headaches, neck pain, bilateral shoulder pain, and back pain, as a result of the accident. In addition, she claimed she experiences anxiety and fear since the subject crash. O’Kelly initially denied any injury after the collision and drove herself home. Three days later, she presented to the Emergency Department at Adventist St. Helena Hospital, in St. Helena, where she was examined by a physician. O’Kelly presented with headaches and neck pain, but denied any loss of consciousness. She underwent an evaluation and imaging studies, and was diagnosed with an acute cervical strain and a closed head injury. She was then given an anti-inflammatory injection and was discharged home. O’Kelly claimed that her symptoms continued despite following the doctor’s instructions to apply heat, ice, and take pain medications. As a result, she began acupuncture treatment several times a week to help manage her symptoms. However, she claimed her cognitive symptoms were worsening, which greatly concerned her. On June 19, 2015, O’Kelly sought help from a medical clinic in Calistoga for headaches, dizziness, forgetfulness, and pain all over her body, especially in the neck and left shoulder area. She also reported feeling that her brain was “short circuiting.” She was diagnosed with post-concussive headaches and prescribed Hydrocodone. O’Kelly was also diagnosed with a cervical strain, and referred to physical therapy and advised to continue acupuncture. She was also given a trial of Norco and referred for a head CT scan. In July 2016, O’Kelly sought chiropractic treatment for her ongoing physical pain and began seeing a neuropsychologist for her continued cognitive symptoms. By that time, O’Kelly was reporting visual and noise sensitivity, trouble sleeping, headaches with dizziness and nausea, difficulty problem solving, memory issues, speech issues with reduced fluency and sentence structure, difficulty comprehending what she read, and increased anxiety. She also reported difficulty focusing for more than five minutes, at which time she would allegedly experience pressure in her head followed by a sensation of tightening across her head, neck, and the rest of her body. O’Kelly was diagnosed with a concussion leading to post-concussion inflammation and headaches. She was recommended neuropsychological intervention at least once a month. The plaintiff’s treating neuropsychologist opined that despite continued chiropractic, acupuncture and neuropsychological treatment, O’Kelly’s condition had plateaued and that O’Kelly had reached maximum improvement. The expert also opined that O’Kelly would require ongoing neuropsychological therapy and treatment to assist her in developing coping mechanisms for her closed head injury and flare-ups in her neck, shoulder and back, but that O’Kelly would remain limited in her ability to perform her normal functions. As a result, the expert testified that he did not believe O’Kelly would ever return to her prior functioning level such that she could run her own businesses. In early 2018, the expert neuropsychologist referred O’Kelly for a Diffusion Tensor Imaging MRI, which allegedly demonstrated axonal shearing in O’Kelly’s brain. Plaintiff’s counsel used the DTI MRI results, together with the expert’s neuropsychological testing, to support the claim that O’Kelly suffered a mild traumatic brain injury. At the time of the accident, O’Kelly was self-employed as the president of the St. Helena Olive Oil Co., which also owned another company named the Napa Valley Bath Co. She founded the St. Helena Olive Oil Co. and ran it for 20 years. O’Kelly claimed she was in the process of bringing in an investor to purchase newly issued shares of stock in the company, while other shareholders in the company would remain as shareholders. As part of the investment, the agreement called for O’Kelly to remain as an employee with the company for a specified period of time, thereby securing continued employment with the company. Her annual salary was allegedly to be set at $120,000 a year. However, O’Kelly claimed that as a result of the mild traumatic brain injury that she sustained in the collision, she was unable to consummate the deal relative to the company, in that she did not believe she could perform as required by the agreement. She alleged that she would suffer a loss of future income based on what she would have received had the subject collision never occurred and the sale continued based on the agreement between the company and the new investor, which had not yet been signed but was agreed to via email. According to O’Kelly, the agreement and contract was to last a minimum of five years and that, therefore, with her inability to consummate the agreement, she lost what was essentially $600,000 in future salary. O’Kelly testified that she was a trained Certified Public Accountant and that she worked in that capacity in the Bay Area before starting her own businesses. She claimed that she was a successful entrepreneur and businesswoman who had a loyal following for her products and that she knew that, should she ever wish to leave the private sector as a business owner, she could return to the Bay Area as a Certified Public Accountant. However, she claimed her injury effectively eliminated that option, as one of her main areas of deficit is her mathematic multitasking ability to work complex financial issues, as she had in the past. The plaintiff’s expert economist opined that O’Kelly suffered a loss of earning capacity as a result of her inability to return to working as a certified public account, which was well in excess of $2 million. O’Kelly sought recovery of $26,028.44 in stipulated past medical costs, $120,000 a year in past lost income for the three years between the accident and trial, and $2.5 million in future lost income and earning capacity. She also sought recovery of an unspecified amount of damages for her future medical costs, and past and future pain and suffering. Defense counsel disputed the nature and extent of O’Kelly’s alleged . Counsel contended that O’Kelly did not sustain a concussion, as O’Kelly was able to walk and provide statements to the police at the scene, as well as drive her vehicle home. Counsel also noted that no doctor diagnosed or treated O’Kelly for a brain injury. Defense counsel contended that the accident involved a low-speed collision, which resulted in minor property damage and which caused O’Kelly to strike her head against a “padded” headrest. Counsel argued that O’Kelly could not have suffered a mild traumatic brain injury based on the mechanics of the accident and noted that O’Kelly did not treat with a neurologist or have any positive findings on MRIs of O’Kelly’s brain. The defense’s accident reconstruction and biomechanics expert presented evidence of a low-speed impact with a relatively low change in velocity of 5 to 7.5 from the two impacts. The defense’s expert neurologist opined that there was no brain injury as a result of the subject collision because O’Kelly did not lose consciousness following the event and O’Kelly denied any injury at the scene. The expert also noted that none of the parties involved required immediate medical care and that photographs of the accident showed minimal property damage. The neurologist opined that, at most, O’Kelly had some muscle spasm or soft tissue complaints and that O’Kelly’s headaches were likely due to a cervical strain. The defense’s neuroradiology expert testified that the brain CT scan taken at the end of June 2015 was normal. The expert also testified that DTI MRIs can only be used in studies of multiple subjects and that they are, therefore, misleading and false to use to diagnose a brain injury in an individual. The defense’s expert neuropsychologist evaluated and tested O’Kelly and opined that O’Kelly’s emotional problems were the result of multiple psychosocial stressors in her life. According to the expert, O’Kelly’s alleged cognitive symptoms were not a result of a mild traumatic brain injury, but, in her opinion, were the result of prior depression and anxiety from life events, such as the death of O’Kelly’s father in 2013, not having a husband or a partner, having two daughters graduate from college and move out of the house, a downward spiral in her business, and the Tubbs Fire in October 2017 that resulted in her subsequent relocation. Defense counsel did not dispute O’Kelly’s alleged past medical expenses, and entered into a stipulation as to the reasonable value of the medical bills, but disputed the bills being causally related to the collision. Counsel also argued that O’Kelly businesses, St. Helena Olive Oil Co. and the Napa Valley Bath Co., were failing long before the subject accident ever happened. In closing, defense counsel suggested that the jury award O’Kelly for her past medical costs, and to even round that number up to $30,000, and that it should award $90,000 to $100,000 for O’Kelly’s past non-economic damages. However, counsel also suggested that the jury award null for O’Kelly’s past loss of earnings, future medical expenses, future income loss and future non-economic damages. The defense’s accident reconstruction and biomechanics expert initially testified during depositions that the forces involved in the collision were the same as those involved when a head hits a pillow, which were well below “concussion thresholds” and, therefore, incapable of causing injury to the brain. She also opined at her deposition that “structural damage to the spine is not likely in low-speed impacts of this nature.” However, the expert was precluded from rendering opinions about cause of injury from a collision at the alleged speed or what type of could be produced at that speed. According to plaintiff’s counsel, part of the basis for the defense’s expert’s opinion were studies that involved dissimilar collisions, with one impact, not two, and crash test dummies and cadavers. However, plaintiff’s counsel made a motion in limine to preclude the defense’s expert from testifying about medical causation of injury, and the motion was granted after the parties conducted a 402 hearing. Plaintiff’s counsel also noted that the defense’s neuroradiology expert based his opinion about the DTI MRI being used without scientific basis on an article he read, but the expert did not provide the article or a citation at deposition. The expert also testified about “hundreds of articles” on the topic of the DTI MRI, but did not produce one article or cite to any articles at the time of his deposition, claiming that he was not “charged with doing” literature search. However, at the time of trial, the expert neuroradiologist had the article with him. As a result, plaintiff’s counsel made a motion in limine to preclude him from testifying about any article that he did not produce or cite at his deposition. The judge granted plaintiff’s counsel’s motion following a 402 on the topic, which precluded the defense’s expert from testifying about or citing any articles. In addition, plaintiff’s counsel responded that the defense’s neuropsychology expert’s claims that O’Kelly’s cognitive symptoms were due to prior depression and anxiety were made despite having no evidence of depression, past or present, or treatment for that condition.
Superior Court of Napa County, Napa, CA

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