Defense wins in rear-ender, claims over-treatment and no causation. Los Angeles County.
Million-dollar policy limits at stake after rear-ender causes only minor damage to vehicles.
- Case Name: Davis v. Harano
- Court and Case Number: Los Angeles Superior Court / BC638726
- Date of Verdict or Judgment: Monday, February 10, 2020
- Date Action was Filed: Tuesday, February 06, 2018
- Type of Case: Vehicles - Auto vs. Auto, Vehicles – rear-ender
- Judge or Arbitrator(s): Hon. James A. Kaddo
Plaintiffs: Anthony Davis
Defendants: Tyler Harano
- Type of Result: Jury Verdict
- Gross Verdict or Award: Defense verdict.
- Trial or Arbitration Time: 6 days.
- Jury Deliberation Time: 4 hours.
- Jury Polls: 10-2
- Post Trial Motions & Post-Verdict Settlements: Defense intends to file a Memorandum of Costs. Plaintiff is filing a Motion for New Trial and a Motion for Judgment Notwithstanding the Verdict.
Attorney for the Plaintiff:
Engstrom, Lipscomb & Lack by Christopher Kanne and Andrew Jacobson, Los Angeles.
Attorney for the Defendant:
Gates, Gonter, Guy, Proudfoot & Muench, LLP by Gina Y. Kandarian-Stein and Vincent H. Brunello, Irvine.
Plaintiff’s Medical Expert(s):
Farshad Hekmat, M.D., orthopedic surgery
Tod Gravori, M.D., neurosurgery
Arthur Croft, D.C., biomechanics
Andrew Morris, D.C., medical billing
Defendant's Medical Expert(s):
Steven Nagelberg, M.D., orthopedic surgery
Stephen Rothman, M.D., neuroradiology
Agnes Grogan, RN, medical billing
Plaintiff's Technical Expert(s):
Arthur Croft, D.C., biomechanics
Facts and Background
Facts and Background:
On January 6, 2017, plaintiff was driving a Nissan Altima westbound on Sunset Boulevard when it was rear-ended by defendant’s Honda Civic. The impact pushed plaintiff’s vehicle into the rear of a Toyota Corolla and the Toyota Corolla was pushed into the rear of a Nissan Sentra.
Plaintiff did not have complaints of pain, discomfort or problems at the scene. The damage to plaintiff’s vehicle amounted to $4,159.33. Damage to defendant’s vehicle amounted to $4,792.52.
That the subject accident caused plaintiff's injuries, for which he sought and underwent appropriate treatment.
Defendant admitted liability for rear-ending plaintiff’s vehicle, but argued all of plaintiff’s medical treatment was attorney-referred and on a lien.
Plaintiff also had a history of diabetes. He worked as a handyman in construction and admitted that his job was physically intensive. Plaintiff also admitted that in August 2017, just eight months after the subject accident and in the middle of his course of treatment, he was able to remodel an entire bathroom without any help. He waited five days before seeking any medical treatment. He never had any radicular complaints throughout his course of treatment with chiropractor Darmo which consisted of 52 treatments.
His pain level throughout the chiropractic treatment was never more than 3/10. In fact, just one day before receiving his first facet block, plaintiff’s reported pain to chiropractor Darmo was 1/10. Plaintiff began treatment at Hekmat Orthopedics and first saw Farshad Hekmat, M.D. Interestingly, plaintiff’s own attorney referred to plaintiff’s treatment with the Hekmats as a “collaboration.” His alleged complaints to Dr. Hekmat were inconsistent with his complaints to chiropractor Darmo while he treated with each medical provider concurrently. On his first visit to Dr. Hekmat, Dr. Hekmat’s examination was normal. Despite the benign examination, Dr. Hekmat ordered an unnecessary MRI of the neck which showed nothing but longstanding degenerative changes that were not made worse by the subject accident.
Plaintiff also treated with Farshad Hekmat’s brother, Jamshid Hekmat, M.D. who recommended plaintiff undergo a set of three epidural injections. However, Farshad Hekmat, M.D. performed five facet blocks and never provided the epidural injections. The facet blocks were all performed at Beverly Hills Center for Arthroscopic and Outpatient Surgery, a surgery center owned by the Hekmats. The anesthesiologist for the facet blocks was Shirin Hekmat, M.D., sister of the Hekmats.
Plaintiff also had several gaps in treatment, ranging from three months to ten months. He would return from these gaps to Farshad Hekmat, M.D. for an injection without an interim examination. Jamshid Hekmat, M.D. recommended a left shoulder surgery despite a normal examination of the shoulder. He referred plaintiff for an MRI of the left shoulder which showed longstanding degenerative changes which were not made worse by the accident. Plaintiff underwent the shoulder surgery. Again, Farshad Hekmat, M.D. was the assistant surgeon and Shirin Hekmat, M.D. was the anesthesiologist. The shoulder surgery was also performed at Beverly Hills Center for Arthroscopic and Outpatient Surgery.
Plaintiff received post-surgical therapy at Hekmat Orthopedics. However, there were no records documenting the physical therapy and only bills were produced for the therapy. Plaintiff was then referred by his attorneys to Tod Gravori, M.D who he saw two years after the subject accident. In a patient questionnaire completed by plaintiff on his initial visit to Dr. Gravori, plaintiff completed a pain diagram and only circled that he had pain in the neck – he did not identify any radicular pain, numbness or tingling. Despite the normal examination, plaintiff’s lack of radicular complaints and the lack of conservative care, Dr. Gravori recommended a foraminotomy on plaintiff’s first visit. The C6-7 foramintomy was performed at Starpoint Surgery Center. Before undergoing the foramintomy, Dr. Gravori referred plaintiff for a second unnecessary MRI of the neck which was conducted just one year after plaintiff’s first MRI. The second MRI was no different from the initial MRI and was unnecessary.
Plaintiff’s biomechanic expert, Arthur Croft, D.C., testified that the delta-V was 8-12 mph. However, he did not perform any calculations and testified this opinion was simply based upon his review of the photographs and estimates of repair of the vehicles. He also assumed plaintiff was gripping the steering wheel tightly, which caused the SLAP tear. However, on cross-examination, plaintiff admitted he was not gripping the steering wheel tightly. Farshad Hekmat, M.D. testified on behalf of plaintiff. Plaintiff did not call Jamshid Hekmat, M.D. to testify. Farshad Hekmat, M.D. admitted that he did not perform interim examinations after plaintiff’s gaps in treatment. He also testified all of plaintiff’s injections lasted only five minutes and that plaintiff was charged approximately $10,000.00 for each five minute injection. He also admitted there were no records to support the billing for plaintiff’s post-surgical therapy. Dr. Hekmat also admitted that plaintiff never told him about the 2016 accident.
Dr. Gravori admitted that this was the third trial in three weeks that he had testified in which defense counsel’s firm was involved. He also admitted that in two of those trials he recommended the patient undergo spine surgery on the first visit. Dr. Gravori testified that plaintiff never told him about the 2016 accident and he never reviewed records pertaining to the 2016 accident. Dr. Gravori also acknowledged that plaintiff’s pain diagram did not identify any radicular complaints and despite this, in his report, Dr. Gravori wrote that plaintiff had radicular complaints to the left upper extremity.
Defense expert Steven Nagelberg, M.D. testified that he examined the plaintiff and reviewed all of plaintiff’s prior and subsequent records. He confirmed plaintiff did not have any radicular complaints. Dr. Nagelberg’s examination of plaintiff was normal. He also testified that when plaintiff was released from treatment in April 2016 for his prior accident, his neck complaints had not resolved. Dr. Nagelberg testified the left shoulder surgery, facet blocks and C6-7 foraminotomy were unreasonable and unnecessary. He also explained that plaintiff is severely diabetic and the findings regarding the shoulder are consistent with diabetic adhesive capsulitis. He explained that the facet injections were not performed properly because they consisted of diagnostic and therapeutic modalities concurrently. According to Dr. Nagelberg, if plaintiff sustained any injuries at all, it was a neck strain. He testified plaintiff did not need any future treatment.
Defense expert Stephen Rothman, M.D. testified the MRIs of the cervical spine and left shoulder showed longstanding degenerative changes that were not made worse by the accident. Plaintiff’s billing expert Andrew Morris, D.C. testified. He admitted that he did not review any of plaintiff’s records and only reviewed plaintiff’s bills. He also admitted that he was previously disqualified as an expert. He also testified plaintiff’s medical bills were too high and he cut them by $70,000.00.
Defense billing expert Agnes Grogan, RN, testified she looked at plaintiff’s medical records and bills in their entirety. She testified that assuming plaintiff’s medical treatment was reasonable and necessary, the reasonable value of plaintiff’s bills were $137,000.00, approximately $100,000.00 less than what plaintiff’s expert Morris opined. Ms. Grogan also testified the reasonable value of plaintiff’s future treatment, assuming it was necessary, was $100,000.00, a quarter of what plaintiff’s expert Morris opined.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Plaintiff, age 45 at the time of the accident, alleged he sustained injuries to the neck and left shoulder.
He underwent five facet blocks to the cervical spine, performed by Farshad Hekmat, M.D. Plaintiff underwent a surgery consisting of a SLAP repair to the left shoulder, performed by Jamshid Hekmat, M.D. He also underwent a C6-7 foraminotomy performed by Todd Gravori, M.D. Dr. Gravori testified that plaintiff would need a cervical rhizotomy, additional pain management injections and a cervical fusion in the future.
- Special Damages Claimed - Past Medical: Plaintiff’s total medical specials amounted to $305,983.95.
Settlement Negotiations On August 8, 2018, plaintiff served a C.C.P. Section 998 for $100,000. On September 10, 2018, plaintiff served a C.C.P. Section 998 for $200,000. On March 20, 2019, plaintiff made a policy limits demand of $1.1 million. On June 20, 2019, plaintiff served a C.C.P. Section 998 for $500,000. On November 12, 2019, plaintiff made a second policy limits demand of $1.1 million. On December 23, 2019, defendant served a C.C.P. Section 998 for $75,000.
Plaintiff asked the jury to award $1.6 million. Defense asked the jury to award plaintiff nothing. If the jury determined defendant’s conduct was a substantial factor in causing plaintiff’s harm, defense asked the jury to award plaintiff his chiropractic treatment and one MRI for a total of $7,500.00.
Per plaintiff's counsel:
Plaintiff filed a Motion for Directed Verdict on the Issue of Causation, which was denied. The Court then erroneously allowed for a question on the verdict form regarding whether plaintiff’s alleged injuries were caused by the subject accident. Defendant’s own expert, Steven Nagelberg, M.D., admitted on the stand that plaintiff sustained an injury caused by defendant’s negligence. Therefore, the jury’s finding of “no causation” was against the weight of the evidence and against the law. During deliberations, the jury submitted a question for the judge asking whether they could still award plaintiff damages if they answer “no” to the causation question. The Court’s answer to the question was for them to simply read the verdict form. Plaintiff is filing a Motion for New Trial and a Motion for Judgment Notwithstanding the Verdict.