eddief
02-21-2018, 07:19 AM
another from Bodega Ave in Petaluma, CA
Kemiji v. Schmitt, Sonoma Superior Action Number SCV-259392. Dept. 17, Judge Arthur Wick.
Scott Sumner for plaintiff Steve Kemiji; Daphne Beletsis for defendant Richard Schmitt/RJ Schmitt Trucking (dba).
This case came to me with a traffic collision report dated September 9, 2014, in which a truck/trailer going uphill tried to overtake and pass a bicycle ahead of it, but in passing, passed too close, and the right rear tire of the trailer side-swiped the cyclist, causing three non-displaced fractures of the 2nd, 3rd and 4th metatarsals (under $10,000 in Kaiser charges, including ambulance from scene). The scene was bodega Avenue, a two-lane highway outside Petaluma, CA.
The reporting officer did not speak with the cyclist at the scene, nor did she see the bicycle, but based on her own assumptions, opinions and conclusions, blamed the cyclist.
The negative police report gave the carrier, Progressive, an excuse to not treat the claim as legitimate, and indeed, as trial drew nearer, counsel for Progressive canceled a mediation, then appeared at a Mandatory Settlement Conference with a $15,000 offer, and while they indicated more was available, they were adamant they would never reach six figures.
I served a CCP 998 Offer of $199,500, and received a responsive CCP 998 Offer of $65,000.
My client was an extremely active 52 year old when injured – running 3-4 x/week, for 90-120 minutes each time, playing tennis weekly for 1-2 hours, hiking, mountain biking, and occasionally road cycling.
I had retained a foot and ankle specialist in Santa Rosa, who opined the foot suffered a Lisfranc injury, despite the non-displaced metatarsal fractures. A Lisfranc injury is an injury to the tarsometatarsal joint or joints at the base of the long metatarsals, where they meet the ankle.
Ultimately, I realized that because the cyclist was wearing a rigid-soled bicycle shoe, his foot had been crushed, but not displaced.
Complications arose in the cyclist’s recovery, as when he first tried to return to running activities, more than a year out from the original injury, he developed knee pain, stopped running, then when he tried again, more than two years out from original injury, he developed sciatica and back pain.
Neither knee nor back injury were caused by the collision.
I had Paul Herbert retained as a trucking industry and trucking safety expert; Joe Yates for accident reconstruction; Mark Schakel, MD (foot specialist); and Tracy Albee for cost of care.
Defense counsel is Daphne Beletsis, out of Santa Rosa, offices of Perry, Johnson, Anderson, Miller & Moskowitz. She retained Jay Mandell of San Jose for reconstruction, and Michael Oechsel, MD, of Mt. Tam Orthopedics, as her medical expert.
Luckily, the defendant trucker refused to admit liability, and so we went in on a liability and damages fight. The jury ultimately was unanimous that the trucker was at fault, and that the cyclist had zero fault.
The fact that the reporting police officer’s opinions, findings, and conclusions were excluded from evidence was key, but the officer’s unavailability for trial was also important, as the deposition read-in included all of my questions and her agreement to what a cyclist was entitled to do, what the obligations of overtaking vehicles was, etc., with none of the reporting police officer’s attitude coming through. Had she testified live, I am sure her attitude would have been apparent, even though her findings would have been kept out.
The defense also gave me a gift in a physical therapy record from 17 weeks post-injury. At that time, my client had just begun doing supported exercises to flex the injured foot – both water/pool activities, and supported heel-lifts. He had by this time built up to being able to walk around his neighborhood block, and was riding a stationary bike in the gym 9and in PT), but could not stand on the pedal due to foot pain. The record, however, had two troubling entries: (1) a notation that pain was 0-/10; (2) a notation “cannot run without foot pain.”
The remainder of the 4-page record made it clear that pain was not a 0/10, since pain was noted repeatedly in the record. The remainder of the record also clearly showed that the patient was not running. However, defense counsel felt that the phrase “cannot run without foot pain” meant that my client WAS running, and his inability to run was his biggest claim for damages, so she went for it.
On cross, I spent a long time going through every detail in the PT record that documented pain, and contrasted that to the 0-/10 entry. I also went through every aspect of the record that said to me he was not running, and then sprung the statement on the defense doctor: “That means he is not running at this point, doesn’t it?” The doctor dissembled, stumbled, stuttered, and said he would have to look through the rest of the records to place it in context, etc. On redirect after a break, they didn’t touch it.
The accident reconstructionist tried to pull a cute trick, too. The police had recorded the area of impact (AOI) by reference to a GPS coordinate and by odometer from a roadway 0.7 miles distant. The defense wanted to move the AOI up the hill, so the trucker would have had better visibility of oncoming traffic (i.e., it would not have been as bad to try and pass), and would have had more time to execute the maneuver safely. The liability argument of the defense was that the cyclist veered leftward while the truck was passing, and steered into the truck. The GPS coordinate was unfortunately about 50-60 feet off the roadway. Mandell then found a GPS coordinate with only a single digit different that placed the AOI where he and his counsel wanted it… however, while Mandell carefully said “close” and “about’ the AOI he was citing, his GPS coordinate was also off the roadway, and he was trying to dupe the jury into believing the reporting officer had written the GPS coordinate down wrong.
The problem was that everything happened for the cyclist in the space of three seconds.
My theme from the get-go was choice of the trucker versus no choice for the cyclist. The trucker came around a curve in the road, saw the cyclist, knew the shoulder was unusable, but chose to pass anyway, and passed too close. The cyclist saw the truck in his rear-view mirror (helmet mounted, get one if you ride), and looked down to make sure he was as far right as he could be, and probably moved a few inches right then left due.
Once the truck began to overtake the bicycle position, only a second or less transpired before contact. That was not enough time for the cyclist to do anything.
The trucker at trial claimed he had pulled out to where he was straddling the center line of the roadway (8 feet from the fog line), and that the cyclist came out and hit his rear trailer wheel at a 90-degree angle.
I was able to argue in closing that I had spoken with every witness before coming to trial, and to defense counsel as well, and that every single person the jury heard from – except one – believed what they testified to and what they said, but that some witnesses’ beliefs were based on mistakes.
Defendant was a 45 year trucker, a business owner, proud of his clean record. He remembered things in a way that favored him, and frankly, the same tendency afflicts us all, and applied to my client as well, but the preponderance of the evidence showed that one party’s account was both believed by them AND true, while the other party’s account, while believed by them, was not true.
The defense doctor and counsel both believed incorrectly that my client was running at 17 weeks post-foot injury, and it blinded them to the reality reflected in the medical records that he did not recover enough to try and run for over a year, and never actually was able to return to his pre-injury activities.
The exception was the defense ax recon, who actually knew what he was saying was false.
One thing that was notable during voir dire was that when I ventured into the tort reform query realm, I literally received a collective shrug from the 18 jurors I was facing.
I had the opportunity on the last Saturday during trial to speak with jury consultant Karen Jo Koonan, who told me that this is apparently pretty widespread suddenly. That it seems to be a Trump-reaction, and juries in California at least are not in an anti-lawsuit frame of mind presently.
I also want to thank John Rice, Boone Calloway, Tom Paoli, Chuck Geerhart, John Roach, and Larry Knapp, all of whom I had a chance to speak with during trial, and whom conversation helped me to synthesize all the evidence I had been dealing with and see the way to communicate to the jury that no one was lying (other than D ax recon), but the truth was clear.
The jury awarded only $11,000 in past wage loss (client’s supervisor testified to $45,000 in lost commissions and bonuses, but hard evidence was lacking, since these depended on sales), $10,259.70 in past medical, only $5,000 in future medical, but $60,000 past noneconomics, and $150,000 future noneconomics. Total award, $236,259.70.
Kemiji v. Schmitt, Sonoma Superior Action Number SCV-259392. Dept. 17, Judge Arthur Wick.
Scott Sumner for plaintiff Steve Kemiji; Daphne Beletsis for defendant Richard Schmitt/RJ Schmitt Trucking (dba).
This case came to me with a traffic collision report dated September 9, 2014, in which a truck/trailer going uphill tried to overtake and pass a bicycle ahead of it, but in passing, passed too close, and the right rear tire of the trailer side-swiped the cyclist, causing three non-displaced fractures of the 2nd, 3rd and 4th metatarsals (under $10,000 in Kaiser charges, including ambulance from scene). The scene was bodega Avenue, a two-lane highway outside Petaluma, CA.
The reporting officer did not speak with the cyclist at the scene, nor did she see the bicycle, but based on her own assumptions, opinions and conclusions, blamed the cyclist.
The negative police report gave the carrier, Progressive, an excuse to not treat the claim as legitimate, and indeed, as trial drew nearer, counsel for Progressive canceled a mediation, then appeared at a Mandatory Settlement Conference with a $15,000 offer, and while they indicated more was available, they were adamant they would never reach six figures.
I served a CCP 998 Offer of $199,500, and received a responsive CCP 998 Offer of $65,000.
My client was an extremely active 52 year old when injured – running 3-4 x/week, for 90-120 minutes each time, playing tennis weekly for 1-2 hours, hiking, mountain biking, and occasionally road cycling.
I had retained a foot and ankle specialist in Santa Rosa, who opined the foot suffered a Lisfranc injury, despite the non-displaced metatarsal fractures. A Lisfranc injury is an injury to the tarsometatarsal joint or joints at the base of the long metatarsals, where they meet the ankle.
Ultimately, I realized that because the cyclist was wearing a rigid-soled bicycle shoe, his foot had been crushed, but not displaced.
Complications arose in the cyclist’s recovery, as when he first tried to return to running activities, more than a year out from the original injury, he developed knee pain, stopped running, then when he tried again, more than two years out from original injury, he developed sciatica and back pain.
Neither knee nor back injury were caused by the collision.
I had Paul Herbert retained as a trucking industry and trucking safety expert; Joe Yates for accident reconstruction; Mark Schakel, MD (foot specialist); and Tracy Albee for cost of care.
Defense counsel is Daphne Beletsis, out of Santa Rosa, offices of Perry, Johnson, Anderson, Miller & Moskowitz. She retained Jay Mandell of San Jose for reconstruction, and Michael Oechsel, MD, of Mt. Tam Orthopedics, as her medical expert.
Luckily, the defendant trucker refused to admit liability, and so we went in on a liability and damages fight. The jury ultimately was unanimous that the trucker was at fault, and that the cyclist had zero fault.
The fact that the reporting police officer’s opinions, findings, and conclusions were excluded from evidence was key, but the officer’s unavailability for trial was also important, as the deposition read-in included all of my questions and her agreement to what a cyclist was entitled to do, what the obligations of overtaking vehicles was, etc., with none of the reporting police officer’s attitude coming through. Had she testified live, I am sure her attitude would have been apparent, even though her findings would have been kept out.
The defense also gave me a gift in a physical therapy record from 17 weeks post-injury. At that time, my client had just begun doing supported exercises to flex the injured foot – both water/pool activities, and supported heel-lifts. He had by this time built up to being able to walk around his neighborhood block, and was riding a stationary bike in the gym 9and in PT), but could not stand on the pedal due to foot pain. The record, however, had two troubling entries: (1) a notation that pain was 0-/10; (2) a notation “cannot run without foot pain.”
The remainder of the 4-page record made it clear that pain was not a 0/10, since pain was noted repeatedly in the record. The remainder of the record also clearly showed that the patient was not running. However, defense counsel felt that the phrase “cannot run without foot pain” meant that my client WAS running, and his inability to run was his biggest claim for damages, so she went for it.
On cross, I spent a long time going through every detail in the PT record that documented pain, and contrasted that to the 0-/10 entry. I also went through every aspect of the record that said to me he was not running, and then sprung the statement on the defense doctor: “That means he is not running at this point, doesn’t it?” The doctor dissembled, stumbled, stuttered, and said he would have to look through the rest of the records to place it in context, etc. On redirect after a break, they didn’t touch it.
The accident reconstructionist tried to pull a cute trick, too. The police had recorded the area of impact (AOI) by reference to a GPS coordinate and by odometer from a roadway 0.7 miles distant. The defense wanted to move the AOI up the hill, so the trucker would have had better visibility of oncoming traffic (i.e., it would not have been as bad to try and pass), and would have had more time to execute the maneuver safely. The liability argument of the defense was that the cyclist veered leftward while the truck was passing, and steered into the truck. The GPS coordinate was unfortunately about 50-60 feet off the roadway. Mandell then found a GPS coordinate with only a single digit different that placed the AOI where he and his counsel wanted it… however, while Mandell carefully said “close” and “about’ the AOI he was citing, his GPS coordinate was also off the roadway, and he was trying to dupe the jury into believing the reporting officer had written the GPS coordinate down wrong.
The problem was that everything happened for the cyclist in the space of three seconds.
My theme from the get-go was choice of the trucker versus no choice for the cyclist. The trucker came around a curve in the road, saw the cyclist, knew the shoulder was unusable, but chose to pass anyway, and passed too close. The cyclist saw the truck in his rear-view mirror (helmet mounted, get one if you ride), and looked down to make sure he was as far right as he could be, and probably moved a few inches right then left due.
Once the truck began to overtake the bicycle position, only a second or less transpired before contact. That was not enough time for the cyclist to do anything.
The trucker at trial claimed he had pulled out to where he was straddling the center line of the roadway (8 feet from the fog line), and that the cyclist came out and hit his rear trailer wheel at a 90-degree angle.
I was able to argue in closing that I had spoken with every witness before coming to trial, and to defense counsel as well, and that every single person the jury heard from – except one – believed what they testified to and what they said, but that some witnesses’ beliefs were based on mistakes.
Defendant was a 45 year trucker, a business owner, proud of his clean record. He remembered things in a way that favored him, and frankly, the same tendency afflicts us all, and applied to my client as well, but the preponderance of the evidence showed that one party’s account was both believed by them AND true, while the other party’s account, while believed by them, was not true.
The defense doctor and counsel both believed incorrectly that my client was running at 17 weeks post-foot injury, and it blinded them to the reality reflected in the medical records that he did not recover enough to try and run for over a year, and never actually was able to return to his pre-injury activities.
The exception was the defense ax recon, who actually knew what he was saying was false.
One thing that was notable during voir dire was that when I ventured into the tort reform query realm, I literally received a collective shrug from the 18 jurors I was facing.
I had the opportunity on the last Saturday during trial to speak with jury consultant Karen Jo Koonan, who told me that this is apparently pretty widespread suddenly. That it seems to be a Trump-reaction, and juries in California at least are not in an anti-lawsuit frame of mind presently.
I also want to thank John Rice, Boone Calloway, Tom Paoli, Chuck Geerhart, John Roach, and Larry Knapp, all of whom I had a chance to speak with during trial, and whom conversation helped me to synthesize all the evidence I had been dealing with and see the way to communicate to the jury that no one was lying (other than D ax recon), but the truth was clear.
The jury awarded only $11,000 in past wage loss (client’s supervisor testified to $45,000 in lost commissions and bonuses, but hard evidence was lacking, since these depended on sales), $10,259.70 in past medical, only $5,000 in future medical, but $60,000 past noneconomics, and $150,000 future noneconomics. Total award, $236,259.70.