On July 1, 2011, at approximately 1 p.m., plaintiff Mark Cardiel Jr., a busser in his 30s, was walking and/or riding his skateboard along the Great America Parkway in Santa Clara when he attempted to cross the on-ramp to U.S. Highway 101 and was struck by a vehicle operated by Michael Witte. The vehicle was traveling at 40 mph when the accident occurred, causing Cardiel to flip onto the windshield and roof, roll over the car, and then land on the asphalt. Cardiel suffered to his face, neck, vocal cord and left leg. Cardiel sued Witte. He alleged the defendant was negligent in the operation of his vehicle. Cardiel claimed that he was holding his skateboard as he walked within the crosswalk at the Great America Parkway on-ramp to the 101 highway when Witte struck him. Thus, he alleged that Witte was negligent for failing to pay attention and for not noticing him in the crosswalk. Witte claimed that Cardiel was riding his skateboard and not within the marked crosswalk at the time of the accident. He also claimed that Cardiel was wearing earbuds as he entered the roadway. Thus, Witte alleged that Cardiel was not paying attention and should have waited for traffic to clear before entering the street, making the plaintiff negligent for failing to look before entering the roadway. Three eyewitnesses were deposed and provided conflicting opinions as to who was at fault for the accident. The general impression of all the witnesses was that both Witte and Cardiel should have paid better attention, and no witness could confirm whether Cardiel was riding his skateboard at the time of the accident., Cardiel was taken by ambulance from the scene of the accident and brought to an emergency room. He sustained a fracture of his left tibia, damage to his right vocal cord, strains and sprains of his left knee and ankle, and a laceration running from his neck up to the left side of his face. Within a day of the accident, Cardiel underwent open reduction and internal fixation with the placement of an intramedullary nail down the left midshaft tibia, as well as the insertion of rods and pins. He then followed up with three months of physical therapy. In addition, Cardiel underwent plastic surgery for the laceration, but was left with an eight inch scar. Cardiel alleged that he has made a full recovery from the damage to his right vocal cord. However, he claimed that he now has a deformity on his left shin in the form of a knot, which is due to a bony build-up. He alleged that he still experiences residual pain and discomfort due to the knot and hardware in his left leg, prohibiting him from sports and other physical activity. Cardiel also claimed that he seeks a scar revision surgery to improve the appearance of his large facial/neck scar. Thus, Cardiel claimed $188,500 in past medical costs, and sought recovery of additional damages for his future medical costs for the scar revision, and for his past and future pain and suffering. He also sought recovery of a nominal amount of damages for his past loss of earnings, which he claimed was under $500. Defense counsel did not seriously dispute the severity of Cardiel’s .