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Firm achieves gratifying result for Sears following jury trial in Santa Clara County in March, 2006 San Jose, CA, 03.15.06 – Plaintiff John Silva claimed permanent disability as a bartender for Hyatt Hotel as a result of head, neck, shoulder and back injuries (including an L5-S1 disc herniation) following a high speed freeway rear-end accident in December of 2001. Plaintiff was allegedly traveling at a speed around 60 to 65 mph in his 1978 Chevy Camper/Van vehicle when he was rear ended by a Sears' 1997 Ford Econoline Service van driven by a Sears driver who was allegedly traveling between 80-90 mph. Plaintiff's driver's seat failed/detached rearward as a result of impact forces but, at the accident scene, plaintiff denied significant injury and refused an ambulance. Plaintiff later sought extensive/long term care from an orthopedist, who prescribed a course of care which primarily consisted of medications consisting of Soma and Vicodin over the four plus years since the accident. Over time, the plaintiff's symptoms expanded, to where he had seen a neurologist and neuro-psychologist in summer 2005 diagnosing head injury, post traumatic brain injuries and depression, despite the fact plaintiff had never complained of any head injuries or experienced neurological symptoms for several months after the accident. Sears contended that plaintiff had improperly modified his camper/van, replacing the original driver's seat and seat belt which had actually caused his driver's seat to fail. Further, Sears contended the seat failure (rather than the 10-15 mph Delta-V/difference in velocity of vehicles) added to the extent of his injuries, which were, in any event, relatively minor soft tissue sprains/strains/contusions and abrasions. At the beginning of trial, plaintiff withdrew both his expert neurologist and neuro-psychologist. Defendant's expert neurologist testified as well as defendant's expert orthopedist, establishing that plaintiff was exaggerating his injury claims, claiming back pain when objective tests were not designed to elicit the use of his back muscles. Both defense medical experts emphasized the absence of anything objective to support claims of pain and disability, beyond four months or so post accident. In closing plaintiff's attorney told the jury, cases like this can result in verdicts of a million dollars. Defense counsel argued liability should rest primarily on the plaintiff for failure to maintain his vehicle/seat and seat belt. Had plaintiff's seat been properly anchored to the frame, plaintiff would not have suffered extent of damages. Plaintiff's injuries were really minor soft tissue which should not render him disabled from work. Defendant's attorney recommended 50/50 liability and $5,000 in gross damages (given Medi-Cal covered almost all of medical specials) for a net verdict of $2,500. Gross damages awarded by the jury were $4,500 (consisting of $3,500 specials and $1,000 general damages) but the jury found plaintiff 60% comparatively at fault for seat/seat belt failures; only holding Sears liable for 40%. Net verdict was only $1,800. Since Sears had offered over $35,000 to settle via CCP 998, plaintiff will likely wind up owing defendant Sears several thousand dollars in costs. < Back to Alerts & Publications About Van De Poel, Levy & Allen, LLP
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