Driver pulls out of parking lot and crosses traffic lanes to turn left in front of oncoming motorcycle.
- Case Name: Carlos Diaz v. Shemin Gau
- Court and Case Number: Santa Clara Superior Court / 17CV312555
- Date of Verdict or Judgment: Tuesday, November 12, 2019
- Date Action was Filed: Monday, July 03, 2017
- Type of Case: Vehicles - Motorcycle
- Judge or Arbitrator(s): Hon. William Monahan
Plaintiffs: Carlos Diaz
Defendants: Shemin Gau
- Type of Result: Jury Verdict
- Gross Verdict or Award: $5,332,215
- Net Verdict or Award: $3,732,550.50
- Contributory/Comparative Negligence: Defendant: 70%; Plaintiff: 30%
Past lost earnings: $438,000
Past medical: $738,215
Future lost earnings: $4,102,000
Future medical: $54,000
None. Prop 213 case.
- Trial or Arbitration Time: 2 weeks.
- Jury Deliberation Time: 4 hours.
- Jury Polls: 12-0 negligence; 11-1 causation; 12-0 on damages
- Post Trial Motions & Post-Verdict Settlements: Plaintiff served a CCP 998 for $999,999 in May, 2018; Plaintiff will be filing a motion for CCP 998 costs and interest
Attorney for the Plaintiff:
Bisnar | Chase, LLP by H. Gavin Long, Newport Beach.
Attorney for the Defendant:
Cholakian & Associates by Kevin Cholakian, South San Francisco.
Plaintiff’s Medical Expert(s):
Fernando Miranda, M.D., neurology.
Sharon Berry, Psy.D., neuropsychology.
Defendant's Medical Expert(s):
Plaintiff's Technical Expert(s):
Raymond Merala, accident reconstruction.
Ronald Morrell, vocational rehabilitation.
Philip Allman, economics, Oakland.
Carol Hyland, future medical costs.
Defendant's Technical Expert(s):
William Woodruff, accident reconstruction, Mountain View.
Tate Kubose, human factors, Los Gatos.
Jason Fries, animation/camera matching.
Lisa Suhonos, vocational rehabilitation.
Facts and Background
Facts and Background:
On November 18th, 2016, around 5 p.m., defendant pulled out of his office driveway with the intention of crossing 2 lanes of traffic to make a left turn. As the defendant was crossing the second lane of traffic in his 2012 Subaru Outback, he blocked the right of way of 32-year-old plaintiff who was riding a motorcycle, causing a crash.
That defendant failed to stop before pulling into traffic, cut off plaintiff's right of way and caused the crash. As a result, plaintiff suffered a TBI and could no longer do the work of an IT manager and earn the $165,000+ per year that he had been earning when the crash happened.
That plaintiff was traveling at 60-65 mph before he applied his brakes to avoid defendant who was entering traffic. The dash cam in defendant’s car showed he did not stop before entering traffic. Defendant contended he did look for a split second just before entering traffic and that he had the right of way. The speed limit where the crash occurred was 35 mph. Plaintiff acknowledged he was going 37-46 mph before he applied the brakes.
That had plaintiff not been speeding, there would have been no crash since plaintiff impacted the left rear driver's side of defendant's car. Also, that plaintiff would have been difficult to see given the "looming" created by the headlights being cast by other vehicles travelling behind plaintiff and his likely distance when he viewed the plaintiff.
Defendant disputed the nature and extent of plaintiff's TBI. Defendant’s neuropsychologist thought plaintiff was worse off than plaintiff’s neuropsychologist opined. Defendant’s vocational expert disputed the mitigation damages of plaintiff’s expert (future earnings of $25,000-30,000 per year), indicating there were jobs available that would pay more; that with the right cognitive training, plaintiff could mitigate earnings damages between $60,000 and $100,000 per year.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Traumatic brain injury (TBI).
- Special Damages Claimed - Past Medical: $738,215
- Special Damages Claimed - Future Medical: $54,000
- Special Damages Claimed - Past Lost Earnings: $438,000
- Special Damages Claimed - Future Lost Earnings: $4,102,000 – Defense vocational expert $2.3 million.
Demands and Offers
- Plaintiff §998 Demand: $999,999 in May of 2018
- Defendant Final Offer before Trial: $25,000 (policy limit offered prelitigation by State Farm). The week before trial defendant increased the policy limit offer $100,000 new money for a total offer of $125,000.