The Perez v. Martin case (2014 L 756 – Cook County) concerned a voluntarily dismissed/refiled action involving a low speed rear-end impact occurring on July 17, 2009, with injuries including a claimed acute full thickness left supraspinatus tear and associated tears in the plaintiff’s left shoulder requiring arthroscopic repair, and an aggravation of cervical arthritis leading to a disc herniation at C4-5.
Plaintiff’s attorneys were Bennet Baker and Dan Spector of Goldberg Weisman & Cairo.
Facts: Defendant pulled up behind Plaintiff at a stop sign on Aptakisic Rd. at its intersection with Rt. 83 in Wheeling. At that point, Rt. 83 curves significantly and when one is stopped, it is necessary to look very far to the left for approaching traffic. Plaintiff’s brake lights were on until she lifted her foot off the brake and started to pull forward, seemingly to start her right turn onto Rt. 83. Defendant pulled up to stop line, looked left and seeing no approaching cars, took her foot off brake pedal and when turning her hear forward immediately saw plaintiff’s car stopped 2-3 feet ahead of the stop line, with no brake lights, and could not stop before contacting the rear end of plaintiff’s car. Defendant testified Plaintiff said she was on her way to Sam’s Club to buy a battery for her car – which Plaintiff denied at trial. The PD to the rear of the plaintiff’s vehicle was estimated to require bumper cover repair and painting work in the amount of $478.00.
Medical/Shoulder: Plaintiff was a 55 year old Hispanic female who had worked as a Pace Bus mechanic for 25 years, and on disability for bilateral knee replacements. Much of her mechanic work was done overhead from a pit while working on bus undercarriages. (However, the pre-MVA medical records included only a single complaint of bilateral shoulder pain 4 years before MVA with no treatment or diagnostic testing done at that time.) Plaintiff had an MRI one month after MVA, interpreted to show a “recently appearing full thickness supraspinatus tendon tear, with minor retraction and no atrophy.” Moreover, and notwithstanding plaintiff’s protracted overhead work on buses and heavy lifting, no left shoulder arthritis was found per the MRI, and none was observed during surgery.
Dr. Visotsky performed arthroscopic shoulder surgery two months post-MVA. He testified via videotaped evidence deposition and offered very compelling testimony supporting his opinion that the MVA caused an acute full thickness supraspinatus tendon tear, through his use of a model of a healthy shoulder joint and the plaintiff’s intra-operative photographs. The photographs depicted a very “clean” (rather than frayed) distal end of the tendon. A frayed tendon end would be seen in a slow developing full thickness tear. However, Dr. Visotsky’s chart notes referenced only that Alicia Perez was “in a car accident,” without further qualification as to the relatively nominal force involved in the rear-end impact.
Dr. Visotsky’s lack of knowledge as to the involved forces or lack thereof was significant, as the defense expert, Dr. Brian Cole, held up the vehicle photos during his evidence deposition and testified that the impact could not have caused an acute tear, concluding that the tear had to be pre-existing. Although Dr. Cole responded to plaintiff’s counsel question in his discovery deposition that the MVA “could or might” have aggravated the pre-existing tear to the point where it became surgical, he testified during his evidence deposition that the his could or might answer to the earlier “aggravation question” was theoretical and did not include a number of factors that should have been included in the question to give his discovery deposition answer any significance.
Medical/Neck: Given the plaintiff’s longer history of neck pain and the lack of any post-MVA surgery, the plaintiff minimized the neck injury feature at trial and focused on the operated shoulder, presumably in an attempt to avoid an over-reach. Ms. Perez testified that she only experienced neck pain for two days after the MVA; however, the first question on cross-examination involved impeaching the plaintiff with her 2012 discovery deposition at which she testified at that time that she was still experiencing neck pain for 2 ½ years following the MVA. This impeachment set up a closing argument observation that the Plaintiff would say anything – at any time – to maximize her claim – and that in doing so, she was manipulating the system, which drew affirmative nods from at least three jurors.
Financials: Medical bills totaled $102K (stipulated as to reasonableness of treatment per complaints made and to total charges, but preserving the challenge to medical necessity/proximate causation. Pre-trial demand was $650K – with no offer by State Farm. Bennet Baker asked jury for ($397K) – $102K in meds, $120K past/$60K future P&S, $75K past/$40K future loss of normal life.
Closing Argument Contention: The jury was offered three scenarios by which it could return a verdict in favor of the Defendant, specifically: (1) Given the nature of the intersection and that Defendant saw Plaintiff pull forward when no cars were coming, then Defendant looked to her left to re-confirm the absence of approaching vehicles, only to lift her foot off the brake pedal as she was turning her head back forward and rolled the 2-3 feet to tap the disabled vehicle with no brake lights – such that the Defendant acted as a reasonable person would under the very unusual circumstances, and was not negligent; (2) that because of Plaintiff’s 25 year experience as a mechanic, that she knew she should not have operated a vehicle with a compromised electrical system and as such, her comparative fault was in excess of 50%; and (3) irrespective of who was at fault for causing the accident, that the slight impact was simply not capable of causing any acute injuries or aggravating any pre-existing conditions.
Verdict: Judgment in favor of defendant.
Judge Joan Powell did not invite a post-verdict discussion with the attorneys and jurors – as such a discussion ultimately resulted in a mis-trial two months prior to the Perez trial. As such, we do not know which one (or more) of the three scenarios the jury favored to return a verdict in favor of the rear-ending defendant on April 9, 2015.
