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888-504-0157 At approximately 8 a.m. on July 24, 2008, plaintiff Cynthia, 47, an inspector for the Alameda County District Attorney’s Office, was driving east on Highway 24, approaching the Caldecott Tunnel in Oakland, when she was rear-ended by a vehicle operated by Douglas Harelson. Cynthia did not report any injury to the investigating officer.
On April 24, 2009, Cynthia was parked outside the main courthouse in downtown Oakland when she was rear-ended by a vehicle operated by Geraldine Kyles, who was trying to pull into a parking space behind Cynthia.
At roughly 5 p.m. on May 14, 2009, Cynthia was involved in another rear-ender, when she was struck by a vehicle operated by Dennis Rugg, while in stop-and-go traffic on northbound Interstate 680, just south of Sycamore Valley Road.
Cynthia was in the course and scope of her employment during each accident, and received worker’s compensation benefits. She claimed she was promoted to Captain of Inspectors after the third accident, but that due to her upper extremity weakness and tingling in her fingers, she was forced to take medical retirement in December 2011.
Cynthia sued Harelson, Kyles and Rugg, as well as Rugg’s employer and owner of his vehicle, ACME Press Inc. She alleged that Harelson, Kyles and Rugg were negligent in the operation of their respective vehicles, and that ACME was vicariously liable for Rugg’s actions.
The matter proceeded to a bench trial.
Cynthia contended that the impact speed of the Harelson accident was between 10 to 12 mph, creating $1,300 in property damage, and that the speed of the Kyles accident was between 3 to 5 mph. Cynthia further contended that the speed of the Rugg accident was 8 to 10 mph, causing $380 in property damage.
Harelson claimed that the impact speed of his collision with Hall was 3 to 5 mph, which was below the threshold for a cervical disc injury.
Rugg contended that the speed of his collision was 3 to 5 mph.
Kyles, who appeared pro per, did not dispute the plaintiff’s assertions.
In March 2009, Cynthia began treating for progressively worsening neck pain, which she claimed was from the first accident. Her family practitioner then referred her for physical therapy to treat her epicondylitis. During her therapy, it was noted that Cynthia had possible radicular symptoms stemming from her C5-6 nerve root.
On April 24, 2009, one hour before the second accident, Cynthia was referred to a physiatrist for nerve conduction velocity and electromyography (NCV/EMG). As a result, she claimed that the second accident caused an exacerbation of neck pain, requiring her to undergo a cervical MRI that showed degenerative disc disease in her spine, including desiccation and osteophytes. Cynthia’s initial NVC/EMG was negative for radiculopathy, but positive for carpal tunnel syndrome. While a repeat NVC/EMG, performed one year later, was positive for chronic cervical radiculopathy.
Months after undergoing the tests, Cynthia began receiving more physical therapy and epidural injections. On March 21, 2011, she underwent a cervical arthroplasty at C4-5 and C5-6, with artificial disc replacement. Following the surgery, Cynthia claimed she experienced minimal post-operative discomfort and regained complete range of motion, but that she suffered from upper extremity weakness and hand tingling/numbness, causing her to retire.
Cynthia claimed that she can no longer work as an inspector since her residual symptoms prevented her from tasks like arresting and controlling suspects. Thus, she claimed $9,800 in damages for her past medical costs (post-Howell), $125,000 in damages for her future medical costs (revision surgery), $150,000 in damages for her past lost earnings, and $700,000 to $1.1 million in damages for her future lost earnings and benefits.
Counsel for Harelson and Rugg argued that Cynthia sustained no more than cervical sprains in each respective accident, as the forces from each were insufficient to cause a cervical structure injury. They further argued that Cynthia had a pre-existing degenerative condition stemming from a work-related motor vehicle accident in 1984, as well as wear and tear caused by her occupation (including training) and athletic endeavors. Defense counsel contended that Cynthia was destined for cervical spine surgery, irrespective of the subject accidents, as she had been intermittently symptomatic for more than a decade with recurrent radicular symptoms.
Defense counsel contended that Cynthia could return to all required job tasks of a Lieutenant of Inspectors, since she had a successful surgery. In addition, counsel argued that the promotion to Captain was speculative and that Cynthia would have only worked up to three more years, regardless.
On the second day of trial, Cynthia settled with Rugg and ACME for $700,000, and on the third day of trial, settled with Harelson for $75,000. Thus, the jury was dismissed and Cynthia proceeded to judgment against Kyles only. The court determined that all three accidents caused a single indivisible injury and that the plaintiff damages totaled $1.7 million. It also determined that Kyles apportionment of fault was 15 percent.
After reduction for the settlements, and based upon an apportionment of fault of 15% on Kyles, Cynthia obtained a judgment of $767,358. Specifically, the court noted that, pursuant to Espinoza v. Machonga, (1992) 9 Cal.App.4th 268, and based upon the Entry of Judgment, the judgment was calculated as followed: $400,000 was awarded for general damages and $1.3 million was awarded for special damages, which created a ratio of .2353 for general damages and .7647 special damages. Therefore, the court determined that Kyles enjoyed a credit of 76.47% of $775,000, or $592,643, toward the plaintiff’s total recovery from settling defendants on the special damages. Thus, Kyles was liable for $1.3 million less $592,643, which equaled $707,358, plus 15 percent of $400,000, which equaled $60,000, making the total judgment $767,358.
Thus, Cynthia’s total recovery, including the prior settlements, would be $1,542,358.
