Work Vehicle vs. Bicycle: Selman Breitman Prevails, Establishing Plaintiff's Fault & Minimal Damages
After a four day trial in Los Angeles Superior Court, Torrance Courthouse, Selman Breitman LLP Partner Bill Mall, obtained a trial win in the case of John Plume v. DISH Network California Service Corporation and M. Campos. After plaintiff's counsel argued for no contributory negligence and a $900,000 award, Bill argued for a finding of plaintiff's own negligence, and an award under $5,000. The jury agreed, awarding only $2,336.03, and finding plaintiff 55% responsible for this accident.
The case arose from a collision between Plume, who was legally riding a bicycle in a marked bike lane, and a parked DISH van on April 16, 2015. Campos, a former DISH installer, testified that he walked along the side of his van and looked before opening the driver's side door, but never saw plaintiff until he was inside the van and closing his door. Plaintiff Plume claimed that he was riding along when Campos walked quickly into the street and "flung" open the door, creating an emergency. Plume claimed that he tried to push the door closed so that he could safely pass between the parked van door and a city bus in the adjacent traffic lane. In the process, he cut his elbow on the van door, requiring stitches. Plume called an ambulance, which is visible in the post accident photos that Campos took to document the presence of warning cones at the front and rear bumper. Plume claimed the cones were not present, but were placed in position after he left.
As to liability, Plume claimed that this all happened so fast, he had no time to do anything other than try to hit the door. Throughout trial, plaintiff's counsel argued that Plume was not negligent. To combat this, the defense presented an accident reconstruction expert to attack the theme that plaintiff had "two seconds" to react. The time and distance analysis showed that Plume saw Campos walking into his path of travel at least 4.8 seconds before the impact, and likely even earlier than that. During the following five seconds, the defense argued that plaintiff took no action at all until he decided to swat at the open door.
Plume had a long standing history of back problems, including two prior lumbar surgeries, and had not yet returned to work at the time of the April, 2015 accident. He made back complaints within a week of the accident, and received physical therapy for a strain for about a month. Later, in July and August 2015, he began making complaints of shooting pain in his legs, eventually resulting in the placement of a spinal cord stimulator to control this pain. His medical specials were $54,000. Plaintiff argued that the stimulator was needed because of the accident, and presented the treating physician who placed the implant, as a non retained expert. This doctor testified that the accident caused the need for the implant. The defense argued that the records, including records by his treating expert, diagnose Plume with "post laminectomy syndrome," meaning he continued to have leg symptoms after his prior back surgeries, and not as a result of any trauma. They successfully highlighted the first two instances where leg pain was mentioned after the accident, in July and again in August, noting that in both, Plume mentioned the van door incident, but in both he mentioned later bicycle riding and surfing in connection with leg pain starting just before these visits. When Plume claimed that he had given up surfing and that surfing was not responsible for his complaints, the defense presented an unrelated medical questionnaire, filled out by Plume in August confirmed that, even after making leg complaints, his hobbies were "biking and surfing."
Plaintiff's counsel argued that the entire $54,000 in post-accident medical specials, $175,000 in past pain and suffering, and $675,000 in future pain and suffering based on his life expectancy. The defense argued that only the urgent care bills from the placement of the elbow stitches, and the early physical therapy were related to the accident, and that the confirmation that Plume was able to take 20+ mile bike rides and surf in July as reported to his doctor limited his pain and suffering to about two months. The defense argued that because the stimulator is unconnected to the door incident, there is no future pain and suffering. The jury adopted the defense position completely, only awarding the urgent care bill for the stitches, rejecting even the one month physical therapy bill, and awarding $2000 for past pain and suffering. The jury also found Plume 55% responsible for the accident. The net verdict is $1,284.82. Defendant served a 998 offer to compromise for $45,000 before trial.
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