Street sweeper sideswipes vehicle, causing major injuries. Liability disputed. $8.4 million. Napa County.

Summary

Despite extensive, life-long injuries suffered by plaintiff, defendant fails to make reasonable offers until trial, when it finally admits liability.

The Case

Case Name: Melissa Alvarez and Lorenzo Alvarez, a minor v. Syar Industries, Inc.
Court and Case Number: Napa County Superior Court / 26-67154
Date of Verdict or Judgment: Wednesday, February 01, 2017
Type of Case: Vehicles - Lane Change, Vehicles - U Turn
Judge or Arbitrator(s): Hon. Diane M. Price
Plaintiffs:
Melissa Alvarez, 33, juvenile hall counselor.
Lorenzo Alvarez, 3-year-old passenger, son of Melissa.
Defendants:
Syar Industries, Inc.
Type of Result: Jury Verdict

The Result

Gross Verdict or Award: Melissa Alvarez: $8,313,685; Lorenzo Alvarez: $129,048.
Economic Damages:
Melissa Alvarez:

Past economic loss: (unanimous jury) $340,805

Future economic loss: (11 - 2) $2,222,880



Lorenzo Alvarez:

Past economic loss: (unanimous jury) $4,048
Non-Economic Damages:
Melissa Alvarez:

Past non-economic loss: (10 - 2) $1,750,000

Future non-economic: (11 - 1) $4,000,000

Lorenzo Alvarez:

Past non-economic loss: (11 - 2) $100,000

Future non-economic: (9 - 3) $25,000
Trial or Arbitration Time: 19 court days.
Jury Deliberation Time: 1 day.

The Attorneys

Attorney for the Plaintiff:
Dreyer Babich Buccola Wood Campora, LLP by Roger A. Dreyer and Noemi Esparza, Sacramento.
Attorney for the Defendant:
Lewis Brisbois Bisgaard & Smith LLP by Shawn A. Toliver and Devera L. Petak, San Francisco.

The Experts

Plaintiff’s Medical Expert(s):
Chad MacLachlan, M.D., sports medicine, Valejo.

Thomas Lee, DPM, podiatry, Oakland.

Carol Hyland, M.A., C.D.M.S, C.L.C.P, medical rehabilitation.
Defendant's Medical Expert(s):
Victor Prieto, M.D., orthopedic surgery, San Francisco.

Alex Barchuk, M.D., medical rehabilitation, Kentfield.
Plaintiff's Technical Expert(s):
Barry Ben-Zion, Ph.D., economics, Santa Rosa.
Defendant's Technical Expert(s):
Maria Brady, M.S., C.R.C, C.L.C.P, vocational rehabilitation, Walnut Creek.

Diana Bubanja, D.P.T., C.L.C.P, C.F.C.E, life care planning, Walnut Creek.

Phillip H. Allman, III, economics, Oakland.

Facts and Background

Facts and Background:
This matter arose out of a motor vehicle versus street sweeper collision that occurred on State Highway 221 in Napa County on April 17, 2015. Thirty-three-year-old Melissa Alvarez was driving her 2005 GMC Yukon northbound on Highway 221 in the number two (right) lane with her son, three-year-old Lorenzo, in the rear middle passenger child seat.

Harold Heimbingner, a Syar Industries employee was driving a street sweeper to clean up gravel previously spilled in the merge lane and the right-hand lane on northbound Highway 221 by truck traffic out of the Syar Industries Napa Quarry. At this location, Highway 221 has two northbound lanes and a merge lane. Mr. Heimbingner, attempting to make a U-turn, turned left into the number two lane of traffic, striking the Alvarez vehicle in the process.

Mr. Heimbingner was dismissed from the case on November 22, 2016 in exchange for a waiver of costs.
Plaintiff's Contentions:
That the collision and resulting injuries were caused solely by the Syar truck driver; that he was in the course and scope of employment during the collision, and thus employer defendant Syar Industries was liable.
Defendant's Contentions:
Defendant Syar contested liability throughout the litigation up to trial. In that regard, defendant’s carrier, AIG, retained and disclosed Joel Wilson, Ph.D., P.E., an accident reconstructionist from Exponent and James Jay Todd, Ph.D., a human factors expert also from Exponent, to create a video simulation of the collision. The defense was trying to create a defense that Ms. Alvarez was distracted by her hands-free cell phone call and was slow to react. Defendant made this comparative fault argument against Ms. Alvarez until the first day of trial when it admitted liability after plaintiffs exposed the weaknesses of defendants’ experts’ opinions.

Injuries and Other Damages

Physical Injuries claimed by Plaintiff:
As a result of the collision, Ms. Alvarez sustained several seat belt contusions, abrasions to various areas of her body, neck pain, chest pain, abrasions to her left hand, right-sided rib fractures, back pain, a right mid-shaft transverse femur fracture with lateral displacement, a right tibial plateau fracture, a right comminuted fibula fracture, a right bimalleolar ankle fracture, and displaced fractures of the 4th and 5th phalanges in her left foot. She never lost consciousness and as she struggled to remove her seat belt to get to her crying son, her vehicle began to catch fire.

As a result of the multiple fractures to Ms. Alvarez’s right leg, she was unable to open her door, get out of her seat or take her son out of the burning vehicle. Two Good Samaritans came on the scene and forced the driver door open and dragged Ms. Alvarez out of the vehicle, causing abrasions and road rash on her buttocks and legs. Ms. Alvarez begged them to go back into the burning vehicle to save her child, which they did.

Alvarez was transported to the emergency room via ambulance where she underwent a retrograde intramedullary nailing of her right femur and open reduction of her bimalleolar ankle fracture. On April 22, 2015, Ms. Alvarez underwent ORIF of her right bimalleolar ankle fracture and ORIF of her Tibia Plateau fracture. On October 16, 2015, Ms. Alvarez underwent ORIF of her fibula as a result of fibular fracture nonunion and ORIF of right ankle syndesmosis as well as removal of right ankle hardware. As a result of ongoing right knee and right hip pain, Ms. Alvarez underwent a right knee Corticosteroid Injection on January 14, 2016 and a Corticosteroid Injection in her right hip on February 8, 2016. Ms. Alvarez underwent an Arthroscopy and Debridement of her right knee on March 23, 2016 and an Arthroscopy and Debridement of her right ankle on August 1, 2016.

Alvarez’s treating physicians opined her future care needs include two to three knee arthroscopies, a knee replacement, an ankle arthroscopy, an ankle fusion and/or ankle replacement in her lifetime. Future care needs and timing of procedures depend on Ms. Alvarez’s ability to tolerate her pain. Ms. Alvarez’s physician opined the ankle fusion would occur three to five years from the date of incident. He further opined the fusion could be taken down at approximately age 55 at which time an ankle replacement could be accomplished with revisions once the life of the replacement had run its course with subsequent revisions to take her out to the rest of her life expectancy.

Defendant’s initial medical experts’ reports did not contain any recommendations for a knee replacement or ankle fusion. At the time of defendant’s medical expert deposition, he changed his opinion and testified to the need for a partial knee replacement and ankle fusion in the future.

Lorenzo Alvarez was examined at the emergency room for left foot pain. He underwent X-rays that were negative. Lorenzo was diagnosed with probable left foot contusion. He was given a splint. Lorenzo did not undergo any further treatment.
Melissa Alvarez

Past medical expenses were stipulated to in the amount of $295,000 for Ms. Alvarez. Ms. Alvarez claimed past loss of income in the amount of $28,000 and loss of household services.

Alvarez claimed future medical expenses in the range of $700,000 to $1,400,000. Ms. Alvarez also claimed she was losing her career as a Juvenile Hall Counselor with the Probation Department at Napa County with no current prospect of staying with the County of Napa resulting in a future income loss range of $800,000 to $3 million, depending upon whether she would be able to return to some type of a job with Napa County. She also claimed a future loss of household services.

Alvarez claimed past and future non-economic damages ranging from $5 million to $7 million.

Defendant’s position:

Defendant did not dispute the past losses claimed by Melissa Alvarez.

Defendant’s number for future medical expenses was $200,000 to $300,000. Defendant’s number for future income loss was $600,000 to $900,000.

Defendant’s amount of past and future non-economic damages was $1,000,000 to $2.5 million.

Lorenzo Alvarez

Past medical expenses were stipulated to, on the third day of trial, in the amount of $4,047.67.

Lorenzo Alvarez claimed past non-economic damages in the range of $100,000 to $125,000 and future non-economic damages in the range of $50,000 to $100,000.

Defendant’s position:

Defendant’s amount of past non-economic damages was $15,000 and future non-economic damages in the amount of $5,000.

Additional Notes

Defendant carried insurance coverage with National Union Fire Insurance Company of PA, a subsidiary of AIG, who disclosed coverage in the amount of $1.2 million in discovery responses dated March 17, 2016. It was later revealed just before trial there was a significant excess policy. Plaintiff Melissa Alvarez served a 998 offer to compromise for $1.9 million and plaintiff Lorenzo Alvarez made a demand in the amount of $50,000 on September 2, 2016. These demands were ignored and no offer was made in response to these demands. Plaintiff Melissa Alvarez served a subsequent demand on November 3, 2016 in the amount of $7 million after the depositions of her treating doctors.

The parties participated in mediation on December 15, 2016 which failed. Defendant’s last offer going into trial was $600,000 and plaintiff pretrial demand was $6.9 million.

Defendant’s carrier, AIG, never engaged in meaningful negotiations throughout the pendency of this case. Defendant’s counsel during litigation, Lisa Cappelluti, Esq. of Lorber, Greenfield & Polito, LLP, repeatedly emphasized the comparative fault claim which plaintiff rejected. On the eve of trial, new counsel, Shawn Toliver, Esq. of Lewis Brisbois Bisgaard & Smith, LLP, was associated into the case with Devera Petak, Esq. Defendant stipulated to liability on the first day of trial and before a jury was selected. During trial and before plaintiff testified, AIG started to finally make significant offers which were rejected.