On May 4, 2016, the team of Irwin R. “Rob” Miller (Law Offices of Irwin R. Miller, Oxnard) and Augusto Focil Jr. (Focil Law Firm, Oxnard) obtained a verdict of $1,436,403 at the Santa Maria courthouse. The case is Alvarez v. Santa Ynez Feed & Milling, Santa Barbara County Superior Court Case No. 1460762. Trial Judge, the Honorable Timothy J. Staffel.
The case arose from an accident that occurred on December 24, 2013 on Highway 154 approximately 2 ½ miles east of Lake Cachuma. Plaintiff, Edwin Alvarez, age 36, was driving southbound having left the Chumash Casino. He was driving a 2011 Nissan Altima.
Defendant James Nielson, an employee of defendant Santa Ynez Feed & Milling, was in the course and scope of his employment with Santa Ynez Feed & Milling. He was operating a 2005 Ford F-450 truck. He had delivered hay to a farm just off highway 154. Leaving the farm, he drove down a dirt improved driveway and intended to make a left onto highway 154 travelling northbound. Defendant Nielson testified that he looked both ways, did not see any oncoming traffic and proceeded to make a left turn. While initiating the left turn, he saw Plaintiff’s vehicle approaching, and he misjudged the speed and distance of the approaching vehicle. Rather than hit his breaks or turn his vehicle away from the oncoming car he accelerated as fast as possible trying to get around Plaintiff’s oncoming vehicle. His maneuver was not successful and a substantial impact occurred. Plaintiff was traveling between 40-45 miles per hour and defendant Nielson was accelerating right to the point of impact.
Plaintiff was transported via ambulance from the scene to Santa Barbara Cottage emergency care. Chest x-rays and CT of the abdomen were negative of any fractures. Two weeks later, Plaintiff first consulted Dr. Okada, a chiropractor, with complaints of low back pain, radiculopathy, right shoulder pain, neck pain and headaches. After several weeks of physical therapy with no relief, Dr. Okada referred Plaintiff for an MRI which was positive for an L4-L5 4-5 mm broad based posterior disc herniation. The MRI also noted an annular tear at the L4-L5 disc with mild spondylosis and muscle spasm.
Due to ongoing low back pain, Dr. Okada referred Plaintiff to Dr. Pejman Shirazi for an orthopedic evaluation and pain management. Dr. Shirazi initiated a series of three lumbar epidural injections. This did provide substantial but only temporary relief from the pain.
After the epidurals were unsuccessful in providing long term relief Dr. Shirazi referred the plaintiff for an orthopedic surgical evaluation. His opinion was that Plaintiff would require a lumbar L4-L5 fusion.
In May 2014, Plaintiff was referred to Dr. Moshe Wilker, a board certified orthopedic surgeon. Due to ongoing low back pain with radiating numbness to the legs, and pain rated at 7 over 10, Dr. Wilker reviewed the prior medical history, MRI findings and recommended an L4-L5 interbody fusion. The fusion was performed on June 30, 2014 at the Miracle Mile Surgery Center. The procedure involved a 2 level fusion at L4-L5 and L5-S1. During follow up examination with Dr. Wilker, Plaintiff continued to have complaints of right shoulder pain, and in May 2015, Dr. Moshe Wilker performed rotator cuff shoulder surgery with excellent results.
During follow up examinations regarding the lumbar surgery, Dr. Wilker ordered a CT of the lumbar spine in June 2015 that showed a lack of a bony bridge and non-fusion at the L5-S1 level. Additional studies also showed broken screws at S1 bilaterally. Because of the non-fusion and the broken screws Dr. Wilker recommended an anterior posterior revision fusion at L5-S1. Plaintiff wanted a second opinion and was referred to Dr. Richard Kahmann in Santa Barbara. Dr. Kahmann evaluated Plaintiff and reviewed the diagnostic studies and agreed with the recommendation of Dr. Wilker. A lumbar CT scan was ordered by Dr. Kahmann which was again positive for a non fusion and broken screws at L5-S1.
On January 22, 2016, Plaintiff underwent revision surgery at Cottage Hospital. Dr. Kahmann testified at trial that all medical treatment rendered by all prior treating medical care providers were reasonable, necessary and were causally related to the auto accident and that the charges were usual and customary for the services rendered.
The defense attempted to argue that the first lumbar fusion surgery was not necessary. Dr. Wilker who performed the surgery testified why it was necessary and Dr. Kahmann who performed the revision surgery testified that all of the treatment rendered by Dr. Wilker was reasonable, appropriate and within the standard of care. All medical experts including the defendant’s expert witness, Dr. Lawrence Borelli, agreed that under the best of circumstances and with the best surgeon one of the risks of a lumbar surgery included a non-fusion and broken screws if the fusion was not successful.
The defense IME by Dr. Borelli was done on February 3, 2015. This was after the first lumbar surgery, but before the right shoulder surgery in May 2015 and the revision surgery in January 2016. Dr. Borelli failed to review all of Plaintiff’s records after an examination by Dr. Wilker of July 2015 at which time it was discovered that there was a non union of the fusion with broken screws and there was a need for a revision surgery. Furthermore, Dr. Borelli did not review any actual diagnostic films, but rather relied upon radiologist reports. In deposition two weeks prior to trial, Dr. Borelli acknowledged that he recently reviewed the records of Dr. Richard Kahmann and agreed with the need for the lumbar revision surgery. However, Dr. Borelli was still of the opinion that the need for the revision surgery was not related to the auto accident, but rather was related to the first lumbar surgery which he did not think was necessary.
Plaintiff’s damages at trial included past medical expenses in the amount of $484,000.00. The jury awarded for past medical expenses the net amount of $312,914.34. Plaintiff further claimed the need for future medical care and expenses. Pursuant to a life care plan prepared by Patty Hedrick, RN in consultation with Dr. Richard Kahmann, the life care plan had future medical costs in a range from $133,700 to $214,300. The jury awarded as future medical expenses the net amount of $174,049.14.
As a result of his injuries, Plaintiff was unable to continue in his prior employment. He had worked two jobs: (1) a part time position doing maintenance work; and (2) a full time job which involved heavier labor on an assembly line. Plaintiff claimed past loss of income in the amount of $49,440 and future loss of earning capacity over his lifetime in the amount of $700,000. Plaintiff’s expert regarding economic and vocational issues was Enrique Vega of Vocational Economics. The jury awarded $49,440, for past loss of income, and $500,000 for future loss of earning capacity. In addition, Plaintiff claimed loss of his ability to perform household chores and services, and the jury awarded the net sum of $50,000. In general damages the jury awarded $100,000 for past pain and suffering, and $250,000 for future pain and suffering. The net damage award was $1,436,403.48.
All damages incurred by plaintiff were disputed by the defendants. At trial, defendants, through their expert witness, Jan Roughan, argued that the total amount of reasonable medical expenses incurred to date was only $160,358, but the jury awarded $312,914.34. Defendants’ expert also submitted a future life care plan and argued that future medical costs were only $22,624, but the jury awarded $174,049.
The defendants, through their vocational rehabilitation expert John Meyers, argued that Plaintiff was fully capable of his pre-accident level of employment, even though the defense medical expert imposed substantial restriction on future work related activities including no repetitive lifting in excess of 20 lbs. and no repetitive bending, stooping, twisting or climbing. In the deposition of Dr. Borelli taken two weeks prior to trial, Dr. Borelli was of the opinion that Plaintiff had fully recovered and did not require further treatment. At the same time, the medical records indicated that Plaintiff was still totally disabled due to the surgery of January 2016, was taking prescription pain medication and had not returned to work. Dr. Borelli reported to Mr. Meyers that Plaintiff was essentially pain free and that pain would not be a factor limiting his future employment. The opinions of defense vocational expert, John Meyers were only based upon information and opinions given to him by Dr. Borelli.
The defense economist, David Weiner, based his opinions on information provided to him by John Meyers. Mr. Weiner testified that plaintiff’s past loss of income was $19,146 and that his future loss of earning capacity was $102,500. However, the jury verdict awarded plaintiff $49,400 for past loss earnings and $500,000 for loss of future earning capacity.
In February 2015, plaintiff’s CCP 998 offer to compromise in the amount of $1,000,000.00 was rejected by defendants. Plaintiff has submitted a cost bill in the amount of $279.455.18. Of this amount, approximately $200,966.00 is attributed to interest on the rejected 998 offer to compromise. The defendant filed a motion to tax costs which was denied by the trial judge. The full amount of the judgment plus costs was $1,715.856.66.
According to Mr. Miller, the success of this case was based upon a number of factors.
1.) A video deposition was taken of the defendant driver as well as a percipient witness. The defendant produced his driver license at the time of his deposition which required that he wear corrective lenses. At the time of his deposition he was not wearing corrective lenses or contact lenses. He admitted that even though the driver license required wearing corrective lenses he had never obtained them prior to the accident. He also admitted that prior to impact he misjudged the speed of Plaintiff’s approaching vehicle and accelerated to avoid the oncoming car. His action only increased the force at point of impact.
2.) Based upon discovery, plaintiff served a request for admissions and defendants were forced to stipulate to liability. The stipulation as to liability was incorporated into and used as a jury instruction. The special verdict form was submitted to the jury. In question #1, it was admitted that defendants were negligent by stipulation. In special jury form question #2, it was admitted that the negligence of the defendants was a substantial factor in causing harm to Plaintiff by stipulation.
3.) Plaintiff experts at trial included Dr. Okada, the chiropractor who originally treated plaintiff, Dr. Shirazi who administered epidural injections, Dr. Wilker who performed the first lumbar surgery and the right shoulder surgery, as well as Dr. Richard Kahmann who performed the revision lumbar surgery in January 2016. At trial, Plaintiff used a 3D image of the MRI showing the injury to the L4-L5 disc. The use of the 3D image was very effective in showing and explaining the specific disc injury.
4.) An expert opinion is only as good as the foundation upon which it is based. Take away the foundation and the opinion collapses. Defendants’ expert orthopedic surgeon, Dr. Borelli did not review all medical records and never reviewed actual diagnostic films. His opinions at trial were inconsistent with what was stated in his IME report, and with information that he gave to other defense expert witnesses. Dr. Borelli’s opinions were impeached and disregarded by the jury.
5.) Defendants’ vocational expert, John Meyers, both in his report and in his testimony, only relied on Dr. Borelli’s opinions. At trial Mr. Meyers acknowledged that some of the information and opinions given to him by Dr. Borelli were either not correct or inconsistent with his review of recent medical records. Ultimately on cross examination, Mr. Meyers acknowledged that from a vocational stand point, Plaintiff was not capable of doing all of the work Dr. Borelli presumed Plaintiff could do, including returning to his prior level of employment.
6.) Defendants’ expert economist, David Weiner, based his opinions regarding loss of past and future earnings upon information provided to him by Mr. Meyers, who relied upon information from Dr. Borelli. In turn, defendants’ life care planner, Jan Roughan, relied upon information provided to her by Dr. Borelli. The defense experts were all bootstrapping their opinions based upon the opinions and assumptions of Dr. Borelli who was not only inconsistent in certain areas regarding his opinions and assumptions, but in several instances Dr. Borelli was both incorrect and contrary to current medical records regarding plaintiff’s present condition.
7.) The bottom line is the jury did not believe Dr. Borelli, and based upon the lack of foundation for his opinions, ultimately the opinions of other defense expert witnesses were substantially discredited.
Plaintiff’s Attorneys contact information:
Irwin R. “Rob” Miller Law Offices of Irwin R. Miller 1000 Town Center Drive Suite, 300 Oxnard, California 93036 http://www.irwinrrobmillerlaw.com Phone: 805-486-2100 firstname.lastname@example.org
Augusto Focil Jr. Focil Law Firm 200 South “A” Street Suite 200A Oxnard, California 93030 Phone: 805-832-4179 email@example.com
- A) Sonny H. Okada, D.C. Okada Chiropractic
- B) Pejman E. Shirazi, M.D., Pain Management
- C) Moshe H. Wilker M.D., Orthopedic Surgeon
- D) Richard Kahmann, M.D., Orthopedic Surgeon
- E) Enrique Vega, MS, CRC, CDMS, Vocational Economic, Inc.
- F) Patty Hedrick RN, BSN, BA, CRRN, CCM, Nurse Consultant/Life Care Planner
- A) Lawrence Borelli, M.D. Orthopedic Surgeon
- B) David S. Karlin, M.D., Radiologist
- C) Jan Roughan, Vocational and Rehabilitation (Life Care Plan)
- D) John C. Meyers, Vocational & Rehabilitation
- E) David Weiner, Economist
Law Office of Wolf & O’Conner
Brian M. Plessala, Esq.,
21650 Oxnard Street Ste 550
Woodland Hills, CA 91367
Name of Defendants:
Santa Ynez Feed & Milling; James Nielson