MIST case - aggravation of shoulder injury in senior tennis player. Defense. Orange County.
Driver fails to yield right-of-way when pulling out onto street from driveway.
- Case Name: Chi Chang v. Anh Bao Tran
- Court and Case Number: Orange County Superior Court / 30-2016-00886556-CU-PA-CJC
- Date of Verdict or Judgment: Tuesday, June 05, 2018
- Date Action was Filed: Monday, November 14, 2016
- Type of Action: MIST (Minor impact, soft tissue)
- Judge or Arbitrator(s): Hon. Thomas A. Delaney
Plaintiffs: Chi Chang
Defendants: Anh Bao Tran
- Type of Result: Jury Verdict
- Gross Verdict or Award: Defense verdict.
- Trial or Arbitration Time: 5 days.
- Jury Deliberation Time: 1 1/2 hours.
Attorney for the Plaintiff:
Nguyen Lawyers, ALC by Minh Nguyen and Megan Klein, Long Beach.
Attorney for the Defendant:
Brown, Bonn & Friedman, LLP by Keith L. Allen, Santa Ana.
Robert Baird, M.D., orthopedic surgery, Irvine.
Plaintiff's Technical Expert(s):
Rami Hashish, Ph.D., biomechanics, Los Angeles.
David King, accident reconstruction.
Defendant's Technical Expert(s):
Kenneth Solomon, Ph.D., biomechanics and accident reconstruction, Woodland Hills.
Facts and Background
Facts and Background:
Minor impact sideswipe accident on Newport Blvd. in Tustin. Plaintiff was driving North on Newport Blvd. Defendant exited a parking lot from the right side of the street and was merging to the center turn lane to enter another parking lot on the southbound side of Newport Blvd.
That defendant, in failing to yield right-of-way, violated VC 21804 and was therefore 100 percent liable. Also, that plaintiff suffered an exacerbation of his pre-existing rotator cuff tear that was asymptomatic prior to the accident and became symptomatic as a result of the accident.
That plaintiff was contributorily negligent because his eyes had been dilated only 30 minutes before the accident. That due to blurry vision, plaintiff didn't see defendant's vehicle and failed to brake when he could have; that he failed to avoid the accident. Defendant further contended that plaintiff was not injured in the accident and that his pre-existing condition was not exacerbated by the accident.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Exacerbation of pre-existing full thickness rotator cuff tear, ongoing pain and suffering.
Plaintiff initially claimed that the impact caused the rotator cuff tear. In his initial written discovery responses, plaintiff claimed he struck his shoulder on the dashboard. At deposition plaintiff changed his claim and stated that it was the steering wheel upon which he struck his shoulder and that the impact caused the rotator cuff tear.
Plaintiff's treating orthopedic surgeon thereafter testified that the rotator cuff tear was a pre-existing condition. Plaintiff then changed the claim to an exacerbation of the pre-existing condition. Plaintiff also testified that he has been playing tennis for 35 years and that he continued to play tennis even after the accident. He testified that he continued to make overhead serves when playing tennis and that he continues to lift weights at the gym and does push-ups. While on the stand during cross-examination, plaintiff was seen by the jury raising his arm overhead, demonstrating how he serves and he didn't show any signs of discomfort. Defense medical expert Dr. Baird testified that given the extent of the tear, is was a medical probability that plaintiff felt pain in his shoulder before the accident and that he probably associated the pain in his shoulder with muscular pain from too much tennis.
Emotional distress associated with the accident and not being able to pick up his grandchildren. Plaintiff sought non-economic damages for past and future pain and suffering totaling approximately $500,000.
- Special Damages Claimed - Past Medical: Not sought.
- Special Damages Claimed - Future Medical: Not sought. Plaintiff testified he would not have surgery to repair the rotator cuff.
- Special Damages Claimed - Past Lost Earnings: None.
- Special Damages Claimed - Future Lost Earnings: None.
Demands and Offers
- Defendant §998 Offer: $15,000
The jury specifically stated that plaintiff was not credible due to his changing his story several times and this was a primary reason for not believing he was asymptomatic before the accident. The jury also saw plaintiff demonstrating his overhead serve without showing signs of discomfort. Additionally, the jury found that plaintiff was impaired by the eye drops that dilated his eyes and that he shouldn't have been driving at the time of the accident.