California Verdicts

Plaintiff(s):

Gail Romero (Female, 67 Years), 

Ba’Shay Ward (Male), 

Irene Taffolla (Female, 13 Years), 

Mercedes Perez (Female, 64 Years), 

Nicanor Romero (Male, 68 Years), 

Gerardo M. Aguilar (Male, 35 Years), 

Tricor America Inc. , 

Audrey Briann Aguilar (Female, 6 Years), 

Latrell Huddleston-Romero (Female)

Plaintiff Attorney(s):

Dennis A. Schoville;
Dennis A. Schoville, A.P.C.;
San Diego,
CA,
for
Gerardo M. Aguilar, Audrey Briann Aguilar ■ Richard L. Bisetti;
Magaña, Cathcart & McCarthy;
Los Angeles,
CA,
for
Mercedes Perez ■ Vincent J. Bartolotta Jr.;
Thorsnes Bartolotta McGuire LLP;
San Diego,
CA,
for
Gail Romero, Irene Taffolla, Nicanor Romero ■ Brett J. Schreiber;
Thorsnes Bartolotta McGuire LLP;
San Diego,
CA,
for
Gail Romero, Irene Taffolla, Nicanor Romero ■ None reported;

for
Ba’Shay Ward, Latrell Huddleston-Romero ■ Juan J. Ordaz, Jr.;
Ordaz Law, APC;
San Diego,
CA,
for
Gerardo M. Aguilar, Audrey Briann Aguilar ■ Nelse T. Miller;
Lorber, Greenfield & Polito, LLP;
Poway,
CA,
for
Tricor America Inc.

Plaintiff Expert(s):

Ed Ruzak;

Traffic;
Fountain Valley,
CA called by
Dennis A. Schoville, Vincent J. Bartolotta Jr. ■ Amy Magnusson;
M.D.;
Physical Medicine;
San Diego,
CA called by
Dennis A. Schoville ■ Jon Landerville;
M.S., P.E.;
Accident Reconstruction;
Torrance,
CA called by
Dennis A. Schoville, Richard L. Bisetti, Brett J. Schreiber, Nelse T. Miller ■ Liz Holakiewicz;
R.N.;
Life Care Planning;
Carlsbad,
CA called by
Brett J. Schreiber ■ Dale Ten Broeck;

Highway/Street Maintenance;
Rogue River,
OR called by
Dennis A. Schoville, Brett J. Schreiber ■ John O’Donnell;

Civil;
San Diego,
CA called by
Brett J. Schreiber, Nelse T. Miller ■ Mark McDonough;
Ph.D.;
Neuropsychology;
San Diego,
CA called by
Brett J. Schreiber ■ Maya Pring;
M.D.;
Orthopedic Surgery;
San Diego,
CA called by
Brett J. Schreiber ■ Sara Frampton;
Ph.D.;
School Psychology;
San Diego,
CA called by
Dennis A. Schoville ■ Nancy Markel;
Ph.D.;
Neuropsychology;
La Jolla,
CA called by
Dennis A. Schoville ■ Andrew Skalsky;
M.D.;
Physical Medicine;
San Diego,
CA called by
Dennis A. Schoville ■ Calvin Colarusso;
M.D.;
Pediatric Psychiatry;
La Jolla,
CA called by
Dennis A. Schoville ■ Dennis Carlson;
P.E.;
Tires;
Tucson,
AZ called by
Dennis A. Schoville, Brett J. Schreiber, Nelse T. Miller ■ Doreen Casuto;
R.N.;
Life Care Planning;
San Diego,
CA called by
Dennis A. Schoville ■ Philip Wang;
M.S.M.E.;
Photogrammetry;
Torrance,
CA called by
Nelse T. Miller ■ Robert Hall;
Ph.D.;
Vocational Rehabilitation;
La Mesa,
CA called by
Dennis A. Schoville ■ Walter Strauser;
M.D.;
Physical Rehabilitation;
San Diego,
CA called by
Brett J. Schreiber ■ Jeffrey Smith;
M.D.;
Orthopedic Surgery;
San Diego,
CA called by
Brett J. Schreiber ■ Richard Gill;
Ph.D.;
Ergonomics/Human Factors;
Spokane,
WA called by
Dennis A. Schoville, Vincent J. Bartolotta Jr., Nelse T. Miller ■ Richard Boehme;
M.D., Ph.D.;
Neurology;
Jacksonville Beach,
FL called by
Dennis A. Schoville, Brett J. Schreiber ■ Roberta Spoon;
C.P.A.;
Economics;
San Diego,
CA called by
Dennis A. Schoville, Brett J. Schreiber

Defendant(s):

Tricor America Inc., 

Granite Construction Co., 

State of California – California Department of Transportation

Defense Attorney(s):

Karen L. Bilotti;
CalTrans Legal Division;
San Diego,
CA,
for
State of California – California Department of Transportation ■ None reported;

for
Tricor America Inc., Granite Construction Co. ■ Lindsay R. Van Housen;
CalTrans Legal Division;
San Diego,
CA,
for
State of California – California Department of Transportation

Defendant Expert(s):

Dean Delis;
Neuropsychology;
Encinitas,
CA called by
Karen L. Bilotti, Lindsay R. Van Housen ■ John Brault;
Biomechanics;
Mission Viejo,
CA called by
Karen L. Bilotti, Lindsay R. Van Housen ■ Saul Levine;
Pediatric Psychiatry;
San Diego,
CA called by
Karen L. Bilotti, Lindsay R. Van Housen ■ Laura Dolan;
Economics;
San Diego,
CA called by
Karen L. Bilotti, Lindsay R. Van Housen ■ Steve Molina;
Vocational Rehabilitation;
Santa Ana,
CA called by
Karen L. Bilotti, Lindsay R. Van Housen ■ Joseph Capell;
Physical Medicine;
Fresno,
CA called by
Karen L. Bilotti, Lindsay R. Van Housen ■ Merkel Weiss;
Accident Reconstruction;
Altadena,
CA called by
Karen L. Bilotti, Lindsay R. Van Housen ■ Stacey Helvin;
Life Care Planning;
Yorba Linda,
CA called by
Karen L. Bilotti, Lindsay R. Van Housen ■ Thomas Giapponi;
Tires;
Lancaster,
OH called by
Karen L. Bilotti, Lindsay R. Van Housen ■ Kenneth Berner;
Traffic;
Livermore,
CA called by
Karen L. Bilotti, Lindsay R. Van Housen ■ Geoffrey Rowe;
Civil;
Blooming Glenn,
PA called by
Karen L. Bilotti, Lindsay R. Van Housen

On Aug. 28, 2012, plaintiffs’ decedent Mary Aguilar, 33, was driving the family minivan on eastbound State Route 78 in rural San Diego. She was accompanied by her foster mother, plaintiff Gail Romero, 67, the registered owner of the vehicle, who was sitting in the front passenger seat. Mary Aguilar was also accompanied by her four daughters, plaintiffs Irene Taffolla, 13, and Audrey Aguilar, 6, and plaintiffs’ decedents Jennifer Aguilar, 9, and Camryn Aguilar, 7. Other family relatives also in the vehicle included plaintiffs Latrell Huddleston-Romero, 10, and Ba’Shay Ward, 3. At approximately 3:15 p.m., when it was two miles west of Santa Ysabel, the Aguilar minivan was struck head-on by a Pontiac Vibe, which had veered into oncoming traffic. The Vibe was operated by Francisco Perez, who was in the scope of his employment as a transport courier with Tricor America Inc. Perez and two of the children in the Aguilar vehicle, Jennifer and Camryn, were killed instantly in the impact. Mary Aguilar also died after being extracted from the minivan. In addition, Audrey suffered a traumatic brain injury, as well as other injuries, and was paralyzed in the accident; Romero suffered multiple fractures and a traumatic brain injury, resulting in brain damage; Irene suffered orthopedic injuries to her upper extremities; Latrell suffered a neck abrasion; and Ward suffered an orbital fracture and head injury. The survivors of the accident claimed that the accident occurred when Perez veered off the paved surface of westbound SR-78, causing Perez to steer his vehicle hard to the left, lose control, and shot across the double-yellow line. Thus, they claimed the roadway’s dangerous condition caused or contributed to the accident. The injured parties and family members of the decedents filed multiple lawsuits against the state of California and the California Department of Transportation, as well as against Perez’s employer, Tricor America Inc., and a subcontractor that worked on the subject repaving project of SR 78, Granite Construction Co. The lawsuits were ultimately consolidated for the purpose of trial. As part of the consolidation, an action brought by Mercedes Perez, the mother of decedent Francisco Perez, who brought claims against Caltrans only, was added to the case. However, prior to trial, Granite Construction was dismissed from the case after summary judgment was entered in its favor on the basis that its work was completed and accepted by Caltrans. Also, the surviving occupants of the Aguilar vehicle and Gerardo Aguilar, the father of decedents Camryn and Jennifer, settled with Tricor for the defendant’s full insurance policy limits of $5 million. As a result, Latrell and Ba’Shay dismissed their remaining claims against the defendants. Thus, the matter proceeded to trial against Caltrans only. The remaining plaintiffs at trial included Rosie Aguilar, acting as Audrey’s guardian ad litem; Gerardo Aguilar, the father of decedents Camryn and Jennifer; Gail Romero; Joseph Romero, acting as Irene’s guardian ad litem; and Ms. Perez, the mother of Francisco Perez. However, Tricor remained in the case throughout trial in order to pursue an indemnity claim, as well as a property damage claim for the loss of Mr. Perez’s vehicle, against Caltrans. At trial, plaintiffs’ counsel argued that the subject area of eastbound SR-78 constituted a dangerous condition of public property. Specifically, counsel contended that as a result of a paving surfacing project during the summer of 2011, which was performed by Caltrans, a dangerous pavement edge drop measuring approximately 4 inches was left on the north edge of the roadway. Counsel also contended that Caltrans had "shoulder backed" the south edge of the roadway, such that a smooth transition existed between the edge of the roadway and the shoulder, but that for reasons unknown, Caltrans never performed the shoulder backing on the north edge. Thus, plaintiff’s counsel argued that when Mr. Perez veered off the paved surface of westbound SR-78, just east of milepost-marker 49.50, he attempted to steer his vehicle hard to the left to mount back onto the paved road surface, but was unable to control his vehicle due to the pavement edge drop-off of roughly 4 inches that existed at that location. Counsel argued that as a result, Mr. Perez’s vehicle shot across the double-yellow line and resulted in the head-on collision. Plaintiffs’ counsel argued that Caltrans knew of the phenomenon where vehicles drifted off the subject paved travel lane for a variety of reasons and knew that when drivers encounter such pavement edge drop-offs, they instinctively attempt to mount back on the paved surface, but that drivers encounter resistance with steep drop-offs, similar to the subject 4-inch drop-off. Counsel contended that the resistance prompts the driver to input a higher degree of steering and that once they are able to mount back onto the road, drivers are no longer in control of their vehicle and shoot across lanes of traffic. In addition, counsel argued that Caltrans knew that shooting across rural two-lane roads, such as SR-78 result in a high amount of fatal traffic collisions, such as the subject accident. Thus, plaintiffs’ counsel argued that even though Caltrans’ own maintenance manuals state that any drop-off above 2 inches is a safety concern, Caltrans ignored the condition for 14 months up until the date of the accident. Caltrans argued that the subject roadway was not a dangerous condition of public property. It contended that there were no witnesses to the collision and that no one who survived the collision remembered the crash itself or the events immediately before the accident. Caltrans also contended that there was no physical evidence of the Tricor vehicle ever leaving the paved portion of the roadway or that a tire scrubbing event was the cause of the Tricor vehicle crossing the centerline. Caltrans further argued that even if the Tricor vehicle did leave the paved portion of the roadway, a tire scrubbing event did not occur because it requires a vertical edge and the edge of the paved roadway was angled. Caltrans contended that none of the children in the Aguilar minivan were properly seat-belted, except for Latrell, who only suffered minor injuries. Specifically, it contended that Audrey and Irene were sharing a seat and seat belt and that the rest of the children had the shoulder portion of the seat belt tucked under their arm. Furthermore, Caltrans contended that Audrey should have been in a booster seat. Thus, Caltrans argued that had the children been properly belted, they all would have survived the collision with minor injuries.

Jennifer and Camryn Aguilar, as well as Francisco Perez, all suffered fatal injuries during the accident. The driver of the Aguilar vehicle, Mary Aguilar, ultimately died after being extracted from the vehicle. Audrey Aguilar, Gail Romero and Irene Taffolla, who survived the accident, claimed numerous injuries. Audrey Aguilar, who was 6 years old at the time of the accident, suffered lumbar fractures at the L3, L4 and L5 levels, with residual injuries to the T8 level. As a result, she was rendered paraplegic. She also suffered severe intestinal injuries and a mild traumatic brain injury. Audrey claimed that although she is evidencing strength in her hips that will hopefully allow her to ambulate with braces for short distances around the home in the future, she is currently paralyzed from the waist down and will require care for the rest of her life. She also claimed that she suffers from post-traumatic stress disorder as a result of watching her mother and two sisters die in the accident. Thus, Audrey sought recovery in excess of $10 million for her past and future medical expenses. She also sought recovery of wrongful death damages for the loss of the care, society, companionship and guidance of her mother, Mary Aguilar. Audrey’s father, Gerardo Aguilar, sought recovery of wrongful death damages in regard to the death of his other two daughters, Jennifer and Camryn, who were ages 9 and 7, respectively. Specifically, he sought recovery for the loss of Jennifer and Camryn’s care, society and companionship. Gail Romero sustained bilateral hip fractures, fractures to both arms, and a fracture of left femur. She also sustained a mild traumatic brain injury/concussion, allegedly causing residual brain damage. She claimed she remains in daily pain from her orthopedic injuries, but has reached maximum recovery from those injuries. She also claimed she continues to suffer memory and concentration problems due to her mild traumatic brain injury. Thus, Mrs. Romero sought recovery of $660,000 for her past and future medical expenses. She also sought recovery of damages for her past and future pain and suffering. Mrs. Romero’s husband, Nicanor Romero, sought recovery of damages for his loss of consortium as a result of his wife’s injuries. Irene Taffolla suffered a fractured elbow, a fracture of the right wrist, and lumbar fractures. She ultimately underwent surgery to treat both her elbow and wrist. However, she did not require surgery for her lumbar fractures. Irene claimed that she has largely recovered from her orthopedic injuries and that she is now playing competitive high school sports. However, she claimed the loss of her mother and siblings is something that she will be forced to bear for the rest of her life. (Irene, who was 13 years old at the time of the accident, has since been adopted Gail and Nicanor Romero, her foster grandparents.) Thus, Irene sought recovery of approximately $70,000 for her medical expenses. She also sought recovery of wrongful damages as a result of the loss of her mother. Specifically, Irene sought recovery for the loss of Mary Aguilar’s care, society, companionship and guidance. The mother of decedent Francisco Perez, Mercedes Perez, sought recovery of wrongful death damages as a result of the death of her adult son. Specifically, she sought recovery for the loss of her son’s care, society and companionship. She also sought recovery of economic damages for the loss of Mr. Perez’s financial support and household services, as the two lived together and Mr. Perez provided for his mother. Tricor sought recovery of economic damages for the destruction of its property, the Pontiac Vibe that was driven by Mr. Perez. Caltrans’ counsel argued that the children occupying the Aguilar vehicle would have been less severely injured had they been properly seat belted. Specifically, counsel contended that had they been properly seat belted, Camryn and Jennifer would have survived the collision, Audrey would not have received paralyzing injuries, and Irene’s injuries would have been less severe. Caltrans’ counsel also disputed the residual effects of Audrey’s traumatic brain injury and disputed the extent of future care needs alleged by Audrey and Mrs. Romero.

The jury determined that State Route 78 constituted a dangerous condition of public property and that Caltrans created a reasonably foreseeable risk for the subject accident. The jury found that Caltrans was 50 percent at fault for the accident and that Mr. Perez/Tricor was also 50 percent at fault. It did not assign any fault to Mary Aguilar in regard to the seat belt and booster seat allegations made by Caltrans. Thus, the jury determined that the plaintiffs’ damages totaled $23,531,335.34, including $14,788,136 in total damages to Audrey, $1.5 million in total damages to Mr. Aguilar; $3,872,733.56 in total damages to Irene; $2,166,465.78 in total damages to Mrs. Romero; $350,000 in damages to Nicanor Romero; $850,000 in total damages to Ms. Perez, and $4,000 in total damages against CalTrans to Tricor. After a reduction based on prior settlements and based on Caltrans’ percentage of fault, the total award should be reduced to $14,123,116.27.

Audrey Briann Aguilar: $388,136 Personal Injury: Past Medical Cost; $7,000,000 Personal Injury: Future Medical Cost; $2,000,000 Personal Injury: Past Pain And Suffering; $2,000,000 Personal Injury: Future Pain And Suffering; $400,000 Personal Injury: future loss of earning capacity; $3,000,000 Personal Injury: loss of Mary Helen Aguilar’s society/companionship; Gerardo M. Aguilar: $750,000 Wrongful Death: loss of Jennifer Aguilar’s society/companionship; $750,000 Wrongful Death: loss of Camryn Aguilar’s society/companionship; Mercedes Perez: $350,000 Wrongful Death: loss of Francisco Perez’s household services; $500,000 Wrongful Death: loss of Francisco Perez’s society/companionship; Gail Romero: $479,466 Personal Injury: Past Medical Cost; $187,000 Personal Injury: Future Medical Cost; $750,000 Personal Injury: Past Pain And Suffering; $750,000 Personal Injury: Future Pain And Suffering; Nicanor Romero: $350,000 Personal Injury: loss of consortium; Irene Taffolla: $64,334 Personal Injury: Past Medical Cost; $8,400 Personal Injury: Future Medical Cost; $400,000 Personal Injury: Past Pain And Suffering; $400,000 Personal Injury: Future Pain And Suffering; $3,000,000 Personal Injury: loss of Mary Helen Aguilar’s society/companionship; Tricor America Inc.: $4,000 Personal Injury: Property Damage

Actual Award:

$14,123,116.27

Judge:

John S. Meyer

Demand:

$9,999,999 by Audrey Aguilar; $1,499,999 by Gerardo Aguilar; $1 million by Gail Romero; $1 million by Irene Taffolla (all via C.C.P. § 998)

Offer:

$500,000 globally to all plaintiffs (C.C.P. § 998), of which $350,000 was tendered to Audrey Aguilar’s claim

Trial Length:

23
 days

Trial Deliberations:

4
 days

Jury Vote:

9-3

Jury Composition:

7 male/ 5 female

This report is based on information that was provided by plaintiffs’ and defense counsel.