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Motorist and scooter-driver faulted each other for collision

Amount:

$2,500,000.87

Type:

Verdict-Plaintiff

State:

Florida

Venue:

Miami-Dade County

Court:

Miami-Dade County Circuit Court, 11th

Injury Type(s):

back-annular tear; back-herniated disc (herniated disc at L3-4), lumbar (herniated disc at L3-4);
back-herniated disc (herniated disc at T1-2), thoracic (herniated disc at T1-2);
back-herniated disc(herniated disc at T3-4), thoracic (herniated disc at T3-4);
neck-annular tear; neck-fusion, cervical;
neck-bulging disc, cervical;
neck-herniated disc (herniated disc at C3-4), cervical (herniated disc at C3-4);
other-chiropractic; other-massage therapy; other-epidural injections; other-decreased range of motion; other-aggravation of pre-existing condition; shoulder-glenoid labrum, tear;
shoulder-dislocation; surgeries/treatment-discectomy

Case Type:

Motor Vehicle – Right Turn, Motor Scooter

Case Name:

Oswaldo D. Rojas Perez v. Richard S. Wolfson,
No. 14-14468-CA01

Date:

June 15, 2017

Parties

Plaintiff(s):

Oswaldo D. Rojas Perez (Male, 38 Years)

Plaintiff Attorney(s):

Gregory Ward;
The Ward Law Group, PL;
Miami Lakes,
FL,
for
Oswaldo D. Rojas Perez ■ Adam T. Dougherty;
Dougherty Law Firm, P.A.;
Hollywood,
FL,
for
Oswaldo D. Rojas Perez

Plaintiff Expert(s):

Miles Moss; P.E.; Accident Reconstruction; Miami,
FL called by:
Gregory Ward, Adam T. Dougherty ■ Samuel Hess; M.D.; Orthopedic Surgery; Coral Springs,
FL called by:
Gregory Ward, Adam T. Dougherty ■ Roberto Moya; M.D.; Orthopedic Surgery; Hialeah,
FL called by:
Gregory Ward, Adam T. Dougherty

Defendant(s):

Richard S. Wolfson

Defense Attorney(s):

Peter R. Restani;
Restani & Dalmanieras, P.A.;
Coral Gables,
FL,
for
Richard S. Wolfson

Defendant Expert(s):

John Malloy IV;
Orthopedic Surgery;
Pompano Beach,
FL called by:
Peter R. Restani ■ David Keyes;
Orthopedic Surgery;
Miami,
FL called by:
Peter R. Restani ■ Kenneth Bynum;
Accident Reconstruction;
Miami,
FL called by:
Peter R. Restani

Insurer(s):

Liberty Mutual Insurance Co. primary insurer;
Hudson Insurance Group excess

Facts:

On April 9, 2014, plaintiff Oswaldo Rojas Perez, 38, a construction manager and student, was driving a motorized scooter south on Biscayne Boulevard (Route 1) toward Sans Souci Boulevard, in Miami. Rojas Perez claimed that a Toyota Highlander sport utility vehicle pulled out from a parking lot on his right, cutting him off, and he laid down his Vespa scooter to avoid striking the SUV. He was thrown more than 30 feet and his Vespa slid about 80 feet away. He claimed multiple injuries to his shoulders, neck, and back. Rojas Perez sued the driver, Richard Wolfson, alleging that he was negligent in the operation of a vehicle. Rojas Perez’ expert in accident reconstruction opined that he was proceeding at about 35 mph in a reasonable and safe manner when Wolfson suddenly emerged in front of him, cutting him off. Rojas Perez, without sufficient time to avoid colliding into the SUV, was forced to lay down his Vespa, the expert concluded. Wolfson testified that he had looked to his left before turning onto the road, and he did not see Rojas Perez. Wolfson’s expert in accident reconstruction maintained that Rojas Perez was speeding, which caused the accident. The expert concluded that, based on his calculations, Rojas Perez was traveling 51 mph in a 35 mph zone, a fact that Rojas Perez and his expert denied.

Injury:

Rojas Perez’ wife drove him to an emergency room, where he received treatment for road rash to his left leg, back, and shoulders X-rays were negative for fractures. The next day, Rojas Perez, complaining of pain to his shoulders, neck, back, and left hip and knee, presented to a medical facility, and was prescribed chiropractic care, including spinal manipulation and massages, which he treated in the ensuing months. He underwent MRIs, and was diagnosed with bilateral glenoid labral tears and shoulder dislocations; a herniation at cervical intervertebral disc C3-4 (with an annular tear); bulging at C4-5, C5-6, and C6-7 (with an annular tear); herniations at thoracic discs T1-2 and T3-4; an aggravation of pre-existing bulging at discs T5-6 and T8-9; and aggravations of a pre-existing herniation at lumbar disc L3-4 and of pre-existing bulging at L4-5 and L5-S1. In June, Rojas Perez underwent surgical repair of his left shoulder, and in August he had surgical repair of his right (dominant) shoulder. In October, he received a cervical fusion and discectomy. In 2015, and up until trial, Rojas Perez regularly consulted with his surgeons and treated with a pain-management specialist, who administered a series of epidural injections to his cervical and lumbar spine and left hip. He sought to recover $328,551.87 in past medical costs. Rojas Perez’ neck surgeon (Samuel Hess) causally related his neck injury and aggravation to his low- back injury to the crash. According to the physician, Rojas Perez will need an additional two-level cervical fusion and a lumbar fusion for the worsening of his low back. Rojas Perez’ shoulder surgeon discussed his labral tears and shoulder dislocations and how they resulted from the accident. According to the physician, the left shoulder did not heal as expected and requires a future revision surgery. Rojas Perez sought future medical costs of upward of $450,000 for the three needed surgeries, physical therapy, and other treatment. Rojas Perez testified that he is in constant pain, and his injuries forced him to stop exercising and lead a more sedentary lifestyle; as a result, he has gained over 30 pounds. His counsel presented photographs of Rojas Perez before and after the accident to demonstrate how he has changed physically. He sought to recover damages for past and future pain and suffering. Wolfson’s expert in orthopedic surgery (John Malloy), who performed a records review, cited Rojas Perez’ prior MRIs, which showed extensive pathology in his cervical, thoracic, and lumbar spine. The expert concluded that Rojas Perez’ alleged injuries and treatment were solely due to his pre-existing conditions. Wolfson’s other expert in orthopedic surgery, who examined Rojas Perez, acknowledged the tears documented in the operative reports, but opined that the tears were pre-existing. The expert further based the opinion on pre-existing cysts that were found in Rojas Perez’ shoulders.

Result:

The jury found Rojas Perez and Wolfson were each 50 percent liable. Rojas Perez was determined to receive $2,500,000.87, which would accordingly be reduced to $1,250,000.44. Wolfson had a primary insurance policy with Liberty Mutual Insurance Co. and an excess policy with Hudson Insurance Group.

Oswaldo D. Rojas Perez: $328,552 Personal Injury: Past Medical Cost; $450,000 Personal Injury: Future Medical Cost; $150,000 Personal Injury: Past Pain And Suffering; $1,571,449 Personal Injury: Future Pain And Suffering

Actual Award:

$1,250,000.44

Trial Information:

Judge:

Monica Gordo

Trial Length:

3
 days

Trial Deliberations:

2.5
 hours

Jury Composition:

4 male/ 2 female

Editor’s Comment:

This report is based on information that was provided by plaintiff’s counsel. Defense counsel did not respond to the reporter’s phone calls.