California Verdicts

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Plaintiff: Treatment of back injuries led to second accident

Amount:

$10,791,332

Type:

Verdict-Plaintiff

State:

California

Venue:

Alameda County

Court:

Superior Court of Alameda County, Oakland

Injury Type(s):

back back-fusion, lumbar;
back-bulging disc, lumbar;
brain-subdural hematoma; brain-traumatic brain injury; other-unconsciousness; other-physical therapy; other-seizure disorder; surgeries/treatment-decompression surgery; mental/psychological-cognition (memory, impairment)

Case Type:

Construction – Accidents; Motor Vehicle – Single Vehicle; Slips, Trips & Falls – Falldown

Case Name:

Brian Leierer v. Harris Salinas Rebar, Inc.,
No. HG 13679708

Date:

November 5, 2015

Parties

Plaintiff(s):

Brian Leierer (Male, 36 Years)

Plaintiff Attorney(s):

Bryan D. Lamb;
Lamb and Frischer, LLP;
San Francisco,
CA,
for
Brian Leierer ■ Richard L. Frischer;
Lamb and Frischer, LLP;
San Francisco,
CA,
for
Brian Leierer

Plaintiff Expert(s):

Mark Holtsman; Pharm.D.; Pharmacology; Sacramento,
CA called by:
Bryan D. Lamb, Richard L. Frischer ■ Santi Rao; M.D.; Orthopedic Surgery; Concord,
CA called by:
Bryan D. Lamb, Richard L. Frischer ■ Gerald Fulghum; C.S.P.; Safety; Sacramento,
CA called by:
Bryan D. Lamb, Richard L. Frischer ■ Robert Cottle; Ed.D.; Vocational Rehabilitation; Walnut Creek,
CA called by:
Bryan D. Lamb, Richard L. Frischer ■ Michael Freeman; Ph.D., M.P.H.; Epidemiology; Portland,
OR called by:
Bryan D. Lamb, Richard L. Frischer ■ Michael Mahoney; P.I.; Accident Reconstruction; Walnut Creek,
CA called by:
Bryan D. Lamb, Richard L. Frischer ■ Phillip Allman, III; Ph.D.; Economics; Oakland,
CA called by:
Bryan D. Lamb, Richard L. Frischer

Defendant(s):

Harris Salinas Rebar Inc.

Defense Attorney(s):

Douglas G. MacKay;
Vitale & Lowe;
Rancho Cordova,
CA,
for
Harris Salinas Rebar Inc.

Defendant Expert(s):

Adam Kaye;
Pharmacology;
Stockton,
CA called by:
Douglas G. MacKay ■ Gary Buffington;
Safety (Construction);
Santa Clarita,
CA called by:
Douglas G. MacKay ■ Van Buren LeMons;
Neurosurgery;
Sacramento,
CA called by:
Douglas G. MacKay

Insurer(s):

Zurich North America for Harris Salinas Rebar Inc.

Facts:

On Oct. 20, 2011, plaintiff Brian Leierer, 36, a carpenter for Ghilotti Construction, a general contractor, was working on the construction of a small bridge on Devlin Road, in Napa. He was performing detail work to ensure that the concrete to be poured the next day would create a level bridge. At the time, Harris Salinas Rebar Inc., the rebar subcontractor, had mostly completed a rebar mat, constructed of horizontal and transverse rebar, into which the concrete would be poured. However, a vertical piece of uncapped rebar rising out of a girder penetrated Leierer’s pant leg, causing him to fall on the rebar mat. As he fell, his foot remained about two feet above the rebar mat and the 50-pound utility belt that he wore added weight to his fall. As a result, Leierer claimed that he sustained a serious back injury, for which he ultimately underwent a fusion surgery. On Sept. 25, 2012, after being discharged and before a second back surgery, Leierer was involved in a solo-vehicle accident on Bollinger Canyon Road, in San Ramon. The accident occurred on a quiet road with a "sweeping," or gradual, left turn and the reconstruction showed that Leierer made a left U-turn directly into a tree at about the speed limit. There were no witnesses, but bystanders who came to the scene afterward noted that Leierer was seizing and not restrained by a seat belt. Thus, Leierer claimed that the car accident was due to a seizure he suffered as a result of the medical treatment he received for the back injury, which he sustained in the prior construction accident. He also claimed that he suffered head injuries as a result of the car crash. Leierer sued Harris Salinas Rebar Inc. Plaintiff’s counsel contended that California Occupational Safety and Health Administration regulation §1712 requires that all vertical rebar up to 6-feet high be capped with 3- to 4-inch wide square caps to protect against hazards of impalement. Thus, counsel argued that Harris Salinas Rebar was negligent for failing to cap the rebar. Plaintiff’s counsel contended that the motor vehicle accident was caused by the medical care and treatment necessitated by Leierer’s back injury. The plaintiff’s safety and accident reconstruction experts also opined that the cause of the accident was consistent with a seizure and, more likely than not, caused by Leierer’s medical treatment for his back injury. Plaintiff’s counsel further contended that in the subject case, the facts and expert opinions proved that the car accident was mostly likely the result of inadequate pain management and withdrawal symptoms caused by discontinuation of pain medication and alcohol use in anticipation of surgery for his back. Thus, counsel noted that California Civil Jury Instructions Number 3929 provides that when a subsequent injury is caused by the care and treatment rendered for the initial injury, even if the care was negligently performed, the defendant is responsible for both injuries. Defense counsel argued that Harris Salinas Rebar did not have a duty to cap vertical rebar and that since Leierer was not actually impaled, CalOSHA §1712 did not apply. Counsel also argued that Leierer was not injured when he fell on the job site, but was injured over the subsequent weekend. The foreman on the construction site even testified that Leierer was not injured at work, but was injured over the subsequent weekend. In addition, defense counsel argued that if even if Leierer did injure his back at work, it was due to lifting pipes, and not from a fall on rebar. In regard to Leierer’s solo car crash, defense counsel argued that the accident was not related to the care and treatment of Leierer’s back injury, but was due to alcohol withdrawal from chronic alcoholism. In response, plaintiff’s counsel argued that the defense’s chronic alcoholism claim was unsupported by the evidence and contradicted by multiple witnesses. Plaintiff’s counsel also argued that the foreman on the construction site was impeached by his neighbor and friend, who testified that the foreman told her that Leierer was injured at work, but that the foreman was afraid to report an injury that occurred on his watch.

Injury:

Leierer claimed that he suffered bulging lumbar discs at the L4-5 and L5-S1 levels as a result of his fall on rebar. He also claimed that he suffered a subdural hematoma that left him with a moderate brain injury and in a three week coma as a result of his solo car accident. After the fall, Leierer’s employer’s foreman, who saw the accident, allegedly commented that it looked like it hurt. However, he denied making such comment at trial. Leierer told his foreman that he was "okay" in his initial reaction to the fall, and returned to work the next day. However, Leierer realized that he could not do physical work when he attempted to lift a 20-pound pipe. As a result, he first sought medical treatment about 10 days after the fall. Over the following months, he reported pain at a level of nine out 10; took prescription, narcotic pain medication; and attended physical therapy. In February 2012, Leierer underwent a back surgery that involved an L4-5 disc replacement and an L5-S1 fusion with decompression. However, the plaintiff’s treating surgeon testified that the outcome was "less than optimal." Leierer also claimed that his narcotic and non-narcotic pain medication failed to relieve his ongoing severe pain, which he rated as being a seven or eight out of 10. As a result, he claimed he had to resort to drinking alcohol to assist in addressing his pain and depression. In anticipation of a second back surgery in September 2012, Leierer discontinued his narcotic pain medication and compensated the lack of pain relief with alcohol. In addition, on the weekend before the scheduled surgery, Leierer checked himself into an emergency room with severe back pain and narcotic withdrawal. The E.R. doctor testified that the withdrawal was mostly likely due to discontinuing Norco. Two days after discharge, Leierer was involved in the solo vehicle accident, during which he suffered a subdural hematoma that left him in a three week coma. When he awoke from the coma, he was allegedly a different person due to a moderate brain injury. The plaintiff’s treating doctor testified that meeting Leierer again was like meeting someone who looked like Leierer, but was not him. Plaintiff’s counsel contended that Leierer is still able to engage in ordinary conversation, and is kind and gentlemanly, but that Leierer cannot sustain focus enough to read a detailed newspaper article. Counsel also contended that Leierer developed a seizure disorder and has serious memory deficits. Counsel contended that as a result, Leierer can no longer drive or cook, and now requires daily care and has to be reminded of basic grooming. Leierer’s second back surgery ultimately occurred in April 2014. Doctors performed a decompression at the L5-S1 level, on the left side. Leierer claimed that the procedure helped remove some of his left-sided radicular pain. However, a right side decompression surgery was recommended, but he had not yet been performed as of the time of trial. Defense counsel argued that Leierer was not hurt on the day of his fall and that even if Leierer was injured at work, all of the medical treatment was unreasonable and unnecessary. Counsel also argued that Leierer’s withdrawal was due to his alcohol use. In addition, defense counsel contended during opening statements that Leierer voluntarily left the hospital against medical advice. However, plaintiff’s counsel noted that the E.R. physician that was called by defense counsel testified that Leierer stayed at the hospital until he was formally discharged.

Result:

The jury found that Harris Salinas Rebar was 49.5 percent at fault; that Leierer’s employer, Ghilotti Construction, was 49.5 percent at fault; and that Leierer was 1 percent at fault. It also found that Leierer’s damages totaled $10,791,332. After apportionment, the addition of C.C.P. § 998 fees and interest, and the addition of prevailing party costs, Leierer’s recovery should be around $8,295,000.

Brian Leierer: $941,090 Personal Injury: past economic loss; $3,267,642 Personal Injury: future economic loss; $590,400 Personal Injury: past non-economic loss; $5,992,200 Personal Injury: future non-economic loss

Actual Award:

$8,295,000

Trial Information:

Judge:

Frank Roesch

Demand:

$2,300,000

Offer:

$60,000

Trial Length:

12
 days

Trial Deliberations:

5
 hours

Jury Vote:

Unanimous as to liability and past damages; 9-3 as to future damages

Jury Composition:

equal male and female; ethnically diverse

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.