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Defense argued driver was reasonably careful in parking lot
Los Angeles County
Superior Court of Los Angeles County, Los Angeles
other-arthroplasty; other-labrum, tear; other-physical therapy; shoulder; shoulder-shoulder impingement (subacromial impingement)
Motor Vehicle - Pedestrian, Parking Lot, Reversing Vehicle
Peter Ly v. Paul Fleming, Bistagne Brothers Body Shop Inc, and Does 1-25, No. BC569998
February 8, 2017
Peter Ly (Male, 35 Years)
Henry A. Peacor; Carpenter Zuckerman & Rowley LLP; Beverly Hills, CA, for Peter Ly ■ Pejman A. Ben-Cohen; Carpenter Zuckerman & Rowley LLP; Beverly Hills, CA, for Peter Ly
Bistagne Brothers Body Shop Inc.
Michael G. Hogan; Raffalow, Rhoads & Bretoi; Long Beach, CA, for Paul Fleming ■ None reported; for Bistagne Brothers Body Shop Inc.
Mercury Insurance Group for Paul Fleming
At around 11 a.m. on Feb. 7, 2013, plaintiff Peter Ly, 35, an appraiser for Access Insurance Co., was in the parking lot of the Bistagne Brothers Body Shop, located at 1400 East Chevy Chase Drive, in Glendale. The parking lot is located at the southeast corner of East Chevy Chase Drive and North Verdugo Road, and there are five parking stalls, which are arranged to allow tandem parking. Ly claimed he was inspecting the damage under the rear of a vehicle in the lot when the front of the vehicle was struck by Paul Fleming, who was backing his 2010 Lexus HS 250h into the fourth stall from the west, directly in front of the parked vehicle Ly was allegedly behind. Ly claimed injuries to his right shoulder. Ly sued Fleming and the owner of the parking lot, Bistagne Brothers Body Shop Inc. Ly alleged that Fleming was negligent in the operation of his motor vehicle. Bistagne Brothers Body Shop was ultimately dismissed from the case. Plaintiff's counsel contended that Fleming struck the vehicle that Ly was inspecting, causing it to impact Ly's shoulder. Ly testified that he was on his knees at the rear of the vehicle struck by Fleming, taking pictures of the undercarriage of the vehicle. He alleged that at the time of the accident, he was holding a camera in his right hand and his head was underneath the vehicle. He also alleged that he was directly behind the middle of the rear bumper with his right shoulder next to a large dent in the middle of the bumper. Ly claimed that as he was taking a picture, the rear bumper made contact with his right shoulder, but did not make contact with any other part of his body. Ly claimed that he did not fall as a result of the impact and that he stood up and walked to the driver's side of the vehicle he was inspecting and observed Fleming exiting his vehicle. He claimed that, upon making eye contact, Fleming initiated the conversation by stating, "Oh my God, were you behind the Camry!" Ly alleged that he replied, "Yes and the bumper hit my right shoulder," and that he then stated he thought his shoulder would be "alright." Fleming claimed he carefully backed into the parking stall at idle speed. He allegedly looked in all his mirrors and over his shoulder before backing up his vehicle, and, at one point, he exited his vehicle to make sure he had enough space to get closer to the vehicle behind him. However, as he was inching back into the stall, the rear of his vehicle "bumped" the front of the vehicle behind him at less than one mile per hour. After the impact, Fleming pulled forward one to two feet, exited his vehicle to inspect the vehicles, and did not notice any damage to either vehicle. Thereafter, he walked to the front office to report the incident. Upon returning to the vehicle with an owner of the body shop, they inspected the vehicles for damage. Fleming claimed that only after inspecting the vehicles did he and body shop owner observe Ly emerge from the space between vehicles in the second and third parking stalls. Ly was holding his right shoulder with his left hand, while rotating it like a windmill. Fleming claimed that at no time did he see Ly behind him as he was backing into the parking stall. Defense counsel argued that Ly was not behind the vehicle at the time of the accident and that Fleming's conduct was reasonable. Counsel contended that Fleming had no duty to walk around the parking lot before parking his vehicle to determine whether someone was "crouching down" behind the vehicle in front of which he parked and that even though Fleming "tapped" the vehicle behind him, his conduct (inching backward while modulating the idle speed with the brake pedal) did not constitute negligence under the "reasonably careful and prudent person test." Thus, defense counsel argued that Ly was negligent for failing to put any cones in front of the vehicle he was inspecting or to otherwise warn anyone entering the parking space in front of the vehicle he was inspecting that he was behind the vehicle.
The incident was neither reported to, nor investigated by, any police agency. No emergency medical personnel were called to the scene and no independent witnesses were identified. Ly claimed he sustained a superior labral tear of the right, dominant shoulder, resulting in a shoulder impingement. He subsequently filed a workers' compensation claim against his employer and treated his injuries with workers' compensation's medical providers. As a result, Ly was initially examined at a U.S. Healthworks Medical Group facility five days after the accident. He was initially diagnosed with sprains and strains of the right shoulder and received physical therapy on six occasions. Ly claimed that when therapy did not resolve his shoulder pain, he underwent a series of MRI's and magnetic resonance angiographies, which revealed a subacromial impingement and a superior labral tear. As a result, he underwent arthroscopic surgery to repair the torn labrum (2.5 years post-accident) and followed up with post-operative therapy on 52 occasions over a three-month period. Even though he had full range of motion in his right shoulder following the surgery, Ly claimed he continues to experience constant pain. He did not seek further treatment following his completion of the post-operative therapy since his family doctor told him there was nothing further that could be done. Aside from the 18 weeks he missed from work as a result of the surgery and follow-up care, Ly did not miss any time from work. The plaintiff's orthopedic surgery expert opined that Ly sustained a torn labrum as a result of the accident and that the medical treatment Ly received, and the charges therefor, were reasonable and necessary. While the expert testified that Ly's ongoing pain was a result of the accident, he could not say, based on a reasonably certain medical probability, what, if any, future care Ly would require. Ly testified that his shoulder injury has greatly affected his family life. Among other things, he claimed he was unable to play catch with his son (who was only 1.5 years old at the time) or lift him. He also testified that he frequently argued with his wife because of his inability to help her take care of their son. Ly claimed that as a result of his on-going shoulder pain, he became very depressed. Ly claimed that his past medical expenses totaled $47,247, but the amount was reduced by Hanif reductions to $17,211. Thus, Ly sought recovery of $867,911 in total damages, including $17,211 for past medical costs, $20,700 for his past loss of earnings for the 18 weeks he was off work, $250,000 in damages for his past pain and suffering, and $580,000 in damages for his future pain and suffering. The defendant purchased the workers' compensation lien, taking an assignment for past benefits paid and future benefits to be paid to, or on behalf of, Ly (which had a value of $41,037.83) for $7,500. Defense counsel argued that most, if not all, of the medical services rendered to Ly were neither reasonable nor necessary as a result of the accident. The defense's accident reconstruction expert testified that the magnitude of the force imposed on Ly (assuming he was behind the vehicle at the time of the accident) was 1.9 g's, which is at the lower end of the range of forces a person experiences in their everyday activities. Thus, he opined that there was no mechanism for a torn labrum since there were insufficient axial forces on the humerus to result in a tear of the labrum. Thus, defense counsel argued that if Ly had injured his shoulder, he would have injured it doing normal activities that Ly performs on a daily basis. The defense's orthopedic surgery expert performed a defense medical examination of Ly and reviewed Ly's medical records. He also opined that Ly could not have torn his labrum in the accident since there was no mechanism of injury, as there was no lateral force imposed on the humerus bone necessary to cause a labral tear. He also opined that the surgery done to repair the labrum was premature and inappropriate without first placing Ly on a conservative treatment program involving a cortisone shot and therapeutic exercise. The expert further opined that Ly suffered from a pre-existing impingement syndrome of the shoulder, which usually can be resolved with a cortisone shot and several weeks of therapeutic exercises. Defense counsel noted that on cross-examination, the plaintiff's expert orthopedic surgeon testified that he testifies, on average, four times per year as a medical expert for Carpenter, Zuckerman & Rowley. However, he admitted he testified for the firm four times in October 2016, but claimed that was an "anomaly." The expert also admitted that the plaintiff's firm represented him, on behalf of his son, in a lawsuit against the Los Alamitos Unified School District. Defense counsel further noted that the plaintiff's expert admitted that the defense's orthopedic surgery expert was his clinical professor at the University of California, Irvine Medical Center during his residency. In addition, the plaintiff's expert claimed that the defense's medical expert was a "good doctor" and that he would not hesitate to refer patients to him. Defense counsel contended that Ly's personality changed during cross-examination, in that Ly became extremely defensive and argumentative. Defense counsel pointed out that Ly had testified that he had experienced "aching" in his right shoulder ever since he was 10 years old, but that Ly claimed it was only occasional and did not involve "pain." Ly also admitted to having gone on an Alaskan cruise with his family several months after the accident, during which he went on a one-day deep sea fishing excursion with his brother and his nephew. When shown a picture Ly posted on Facebook during the cruise, in which Ly was holding a 40-pound fish in the air, Ly denied catching the fish, but claimed he only held the fish in the air for the photograph since he did not want to "spoil his brother's trip." Ly also claimed that even though he was "smiling" in the photograph, he was in great pain and had to take pain medication immediately thereafter. Thus, defense counsel contended that Ly was impeached with his deposition, during which Ly testified that he "had never been on a boat" following the accident and could no longer go deep sea fishing, which he did regularly before the accident. Defense counsel contended Ly's wife initially denied having met with plaintiff's counsel, but during cross-examination, when it was noted that she was observed on another floor of the courthouse one hour before trial that morning talking with plaintiff's counsel, she allegedly appeared somewhat shocked and nervous. However, Ly's wife claimed the plaintiff's attorneys merely introduced themselves to her. Defense counsel also noted that while Ly's wife claimed to know her husband better than anyone else in the world, when asked how much Ly earned, she claimed she did not know since it was "none of her business." She testified that they had separate bank accounts and that "his money is his" and that "[her] money is [hers]." Counsel further noted that when questioned about Ly's therapy, Ly's wife claimed that therapy was her husband's business since she had to work every day as a school teacher, take care of their son, and cook for the other family members with whom they lived. She claimed that she had "too much on her plate" to be concerned with his therapy. When defense counsel asked how her husband was able to play catch with their 1.5-year-old son before the accident, she claimed Ly would "roll a beach ball across the room" and their son would push it back. In addition, defense counsel noted that Ly's wife could not explain how her husband could not lift their child, but yet was able to lift a 40-pound fish in the air.
At the end of the second day of jury deliberations, the jurors informed the court that they were evenly split, six to six, on negligence. Judge David Cunningham read the "hung jury instruction" to the jury and told them to return the following day. He informed them that if they could not reach a verdict by noon, he would declare a mistrial and release them. The jury then returned for a third day and after deliberating for two hours, returned a verdict in favor of Fleming with a vote of 9 to 3 finding that Fleming was not negligent. Thus, it rendered a defense verdict.
David S. Cunningham
$250,000 (policy limits)
waiver of the workers' compensation lien, including future benefits (which had a value of $41,037.83 at the time of the offer)
This report is based on information that was provided by defense counsel. Plaintiff's counsel did not respond to the reporter's phone calls.