Mediation Submission

For the last few weeks, we have been posting about our efforts to get money for a young lady who was stopped in traffic when she was rear ended by a bread truck. Our three prior posts are here, here, and here.

While the motion to dismiss was pending, the parties tried to resolve the case through mediation. In preparation for our day with the mediator, we prepared a mediation packet containing the most important evidence. In our prepared materials, we tried to describe our case in the most favorable terms possible, so that the mediator would be impressed with the relative strength of our case and would push the bread truck’s insurance company to make a fair settlement offer.

Here is the mediation submission, without exhibits, in its entirety. I hope it helps you in your effort to understand your own case.

MARTIN + COLIN, P.C.
(914) 771 7711
44 Church Street
White Plains, NY  10601

SETTLEMENT PURPOSES ONLY

NOT TO BE USED FOR ANY OTHER PURPOSE

                                                                        July 7, 2016

Luke Voit, Esq.

Arbitrator

NAM (National Arbitration and Mediation)

990 Stewart Avenue, First Floor

Garden City, New York 11530

   Re:               Mediation Submission

  Client:         Selena Calderon Ortega, Plaintiff

                       Calderon Ortega v. Riley Baumes et ano

                        Supreme Court, Westchester County, Index No.:  52648/2015

D/Accid:        September 16, 2017

Dear Mediator Voit:

Mediation Submission

            The following serves as our review and analysis of this case and includes documentation to support our reasonable demand for settlement in the amount of $100,000.  The facts and data in this letter, together with the attached exhibits and documents, are intended to be utilized and discussed in the mediation conference.  This letter is intended to be used solely for purposes of mediation and settlement of this claim, and is therefore not admissible in any subsequent trial or proceedings.

FACTS

           On September 16, 2014 at approximately 11:11 am, the plaintiff, then 19-year-old Selena Calderon Ortega was stopped in traffic when her vehicle was struck from behind by the defendant.  Selena had been traveling southbound on Route 9A in the Village of Briarcliff Manor, County of Westchester, when the defendant, Riley Baumes, driving a delivery truck, rear ended the plaintiff’s vehicle (see Police Report annexed hereto as Exhibit “1”). 

           The impact caused extensive damage to Ms. Calderon Ortega’s vehicle, smashing the rear body and bending the bumper and breaking it off the car (see damage photos annexed hereto as Exhibit “2”).  The impact was so severe that Ms. Calderon Ortega’s vehicle, which had been stopped at the moment of impact, was shoved forward into the car directly in front of her car.  Ms. Calderon Ortega remained at home in pain for several days until, on September 23, 2014, Ms. Calderon Ortega went to the Phelps Memorial Hospital Center Emergency Department complaining of increasing back pain.  After examination she was discharged with the instructions to take 3 Advil every 6 hours as needed, to avoid strenuous activity, and to follow up with her doctor.

LIABILITY

           Liability in this case clearly lies with the defendants.  At the time of the accident, defendant was operating his vehicle southbound on Route 9A at a speed not reasonable and prudent and did not allow for enough stopping distance, causing his vehicle to strike the plaintiff’s car in the rear. Thus, since Ms. Calderon Ortega’s vehicle was rear ended by the defendant, liability rests with the defendant. See Plummer v. Nourddine, 82 A.D.3d 1069, 1069-1070, 919 N.Y.S.2d 187 (2d Dept. 2011) ( “[A] rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision.”).

VTL 1129(a) states, “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.” The failure of a driver to do so constitutes negligence as a matter of law, entitling the plaintiff lead driver whose vehicle was rear-ended to summary judgment on the issue of liability in the absence of an adequate non-negligent explanation (see Inzano v Brucculeri, 257 AD2d 605 [2nd Dept 1999]; Aromando v City of New York, 202 AD2d 617 [2nd Dept 1994]).  VTL 1129 imposes upon drivers the duty to be aware of traffic conditions, including vehicle stoppages.  Johnson v. Phillips, 261 A.D.2d 269 (1st Dept. 1999).

           The defendant did not provide a non-negligent explanation for the collision.  An assertion that the lead vehicle “stopped suddenly” is insufficient to rebut the presumption of negligence on the part of the offending vehicle.  Francisco v. Schoepfer, 2006 NY Slip Op 04966 (Sup Ct, NY Couny 2006), citing Woodley  v. Ramirez, 25 AD3d 451, 452 (2006); Malone v. Morillo, 6 AD3d 324 (2004).  While the defendant claims that Ms. Calderon Ortega’s vehicle “stopped suddenly”, the defendant also testified at his Examination Before Trial that prior to the collision he saw plaintiff’s brake lights, that he applied his brakes before the moment of impact and that he moved his vehicle to the right to try to avoid the impact.  See EBT of Riley Baumes annexed hereto as Exhibit “3”, pg. 23-24.

DAMAGES

           As stated above, due to the accident, Ms. Calderon Ortega’s vehicle sustained substantial damage to the rear end and had to be repaired.  Due to the fact that the parties were traveling on a limited access road, and the speed limit was 45 mph, the cars were traveling at a fairly high speed at the time of the impact, causing serious damage to Ms. Calderon Ortega’s vehicle.  The extent of the vehicle damage is evidence of the violent and substantial nature of the impact.

Ms. Calderon Ortega’s injuries clearly meet the serious injury threshold.  It Is well settled that the defendant in a personal injury case involving a motor vehicle accident is entitled to summary judgment if the defendant can show that “the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)”. Gutierrez v. Yonkers Construction Co., 2009 NY Slip Op 03135, No. 2008-02304 (2d Dept. April 21, 2009).  However, after the defendant establishes the initial burden of showing that the plaintiff did not suffer serious injuries, the burden shifts to the plaintiff to show that a triable issue of genuine fact exists by submitting admissible medical evidence of plaintiff’s serious injury. Shinn v. Catanzaro, 1 A.D.3d 195, 107, 767 N.Y.S.2d 88 (1st Dept.  2003).

After the accident, Ms. Calderon Ortega went home and remained there.  Her back began to hurt and, after failing to recover after several days, Ms. Calderon Ortega sought treatment at Phelps Hospital Emergency Department (see Hospital Records annexed hereto as Exhibit “4”).  During this visit, Ms. Calderon Ortega complained of increasing back pain.

Shortly after the accident, on October 16, 2014, Ms. Calderon Ortega began treating with neurologist Maxwell Dolan.  (Exhibit “5”).  Plaintiff presented complaining of middle and lower back pain with muscle spasms.  (Exhibit “5”).  Ms. Calderon Ortega treated regularly and consistently with Dr. Dolan following the accident.  Ms. Calderon Ortega also began physical therapy treatments in attempts to relieve the pain.

Ms. Calderon Ortega had an MRI of her lumbar spine performed on November 12, 2014.  Recently, the MRI images were reviewed by a board certified radiologist, Dr. Charles J. Burns, M.D.  Dr. Burns states in his affirmed report dated April 7, 2016 regarding Ms. Calderon Ortega’s lumbar spine:

The MRI of the lumbar spine was performed on 11/12/2014 following the injury of 9/16/2014.  It was performed on a mid-field strength unit with excellent resolution and technique.  It demonstrated the loss of the normal lumbar curvature as seen on T2 weighted sagittal images.  This latter structural change is due to traumatic soft tissue injury, muscle spasm, or pain that caused straightening to the lumbar alignment.  They are accompanied by chronic disk herniations at L3-L4 and L4-L5 noted on the axial and sagittal T2 weighted images.  These changes resulted in bilateral neural foramina narrowing at L4-L5 and L5-S1 which were precipitated by the loss of the lumbar curvature/lordosis.  Accompanying the prior change is the annular tear of L4-L5, which is a definite cause for back pain.  These myriad of findings all contribute to the patient clinical symptoms.  There were no accompanying fractures, dislocation, or metastatic changes detected.

Thus, the above findings confirm traumatic soft tissue injury as indicated by annulus tear and loss of lumbar curvature.  The above findings are superimposed on chronic disk herniations of the lumbar spine as confirmed by the MRI performed after injury on 11/14/2014.  The findings are directly and causally related to the date of loss of 9/16/2014 in my professional opinion.  The clinical outcome depends on the natural evolution of her clinical symptoms and if surgery will be necessary. (Exhibit “7”).

Ms. Calderon Ortega followed up with Dr. Dolan on November 13, 2014, following the MRI of her lumbar spine.  As noted in the attached reports, Dr. Dolan diagnosed thoracic muscle spasms; lumbar spine injury with signs of radiculopathy; L3-L4 disc bulge; L4-L5 & L5-S1 disc herniation.  Dr. Dolan observed Ms. Calderon Ortega’s limitation with bending and lifting, and determined that Ms. Calderon Ortega was totally disabled as a result of the accident.  Dr. Dolan prescribed continued physical therapy treatments, Flexeril 10 mg for pain and stiffness caused by the muscle spasms, and Mobic 7.5 mg for pain relief.  (Exhibit “5”). 

At Ms. Calderon Ortega’s January 22, 2015 office visit with Dr. Dolan, four months after the accident, Ms. Calderon Ortega was still complaining to her treating physician that the pain hurt her so much that although she was going to physical therapy, she could not do the exercises.  In addition, Ms. Calderon Ortega complained to Dr. Dolan that her back hurt her so much that her sleep was interrupted from the pain.  Ms. Calderon Ortega also complained to Dr. Dolan that the pain so severely affected her daily life, causing her to feel angry.  Also, Dr. Dolan observed that the Ms. Calderon Ortega was walking with an antalgic gait due to the pain in her back.  Based on all of these observations, Dr. Dolan found Ms. Calderon Ortega to be totally disabled, with her limitations and functional disabilities causally related to the accident.  (Exhibit “5”). 

Ms. Calderon Ortega continued treating continuously with Dr. Dolan until she left the country to study abroad, over a year after the date of the accident.  At her last appointment with Dr. Dolan in October 2015, Ms. Calderon Ortega continued to complain of severe back pain which interrupted her sleep.  Ms. Calderon Ortega reported feeling anxious as a result of her injury.  Once again, Dr. Dolan personally observed limitations in Ms. Calderon Ortega’s range of motion, lumbar spine injury with signs of radiculopathy, as well as spasm and tenderness of the paraspinal muscles.  Dr. Dolan opined that Ms. Calderon Ortega was partially disabled as a result of the accident.  (Exhibit “5”). 

           Ms. Calderon Ortega has been diagnosed with disc herniations at L3-4 and L4-5, bilateral neural foramina narrowing at L4-L5 and L5-S1, loss of the lumbar curvature/lordosis, and annular tear of L4-L5.  See Report of the MRI of the Lumbrosacral Spine annexed hereto as Exhibit “6”.  These findings, by a duly licensed neurologist and duly licensed radiologist, standing alone, are sufficient to defeat a motion for summary judgment based on the serious injury threshold.  For example, in Gutierrez v. Yonkers Construction Co., the appellate court held that the defendant was not entitled to summary judgment based on the serious injury requirement of Insurance Law § 5102(d) where plaintiff submitted a medical report stating plaintiff suffered from a single disc herniation and lumbar spine range of motion limitations.  2009 NY Slip Op 03135, No. 2008-02304 (2d Dept. April 21, 2009).  

           However, due to this accident, Ms. Calderon Ortega suffered from two disc herniations, straightening of the lumbar curvature/lordosis, annular tear of L4-L5, and has a permanent partial disability.  Ms. Calderon Ortega is experiencing muscle spasms in her cervical, thoracic and lumbar spine, and has decreased range of motion in the cervical and lumbar regions.  See Narrative Report of Dr. Dolan annexed hereto as Exhibit “5”.  Ms. Calderon Ortega was found to be totally disabled from the date of the accident to the date of the August 2015 exam by her neurologist Dr. Dolan, and permanently partially disabled by Dr. Dolan at his October 2015 exam.  These findings, and Ms. Calderon Ortega’s deposition testimony, establish that Ms. Calderon Ortega was prevented from performing her usual and customary daily activities for not less than 90 during the 180 days immediately following the accident.  Since Ms. Calderon Ortega has suffered more serious injuries than the plaintiff in the Gutierrez case, and such injuries have been document and diagnosed by Ms. Calderon Ortega’s physician, it is clear that the Defendants would not prevail on a motion for summary judgment and that Ms. Calderon Ortega’s injuries are substantial, permanent, and life-altering. 

SETTLEMENT DEMAND

The Plaintiff makes a mediation settlement demand of $100,000.00.  Our legal research suggests that if we proceed to trial, we would likely get a verdict in excess of $300,000.00, even in a more conservative county.  Therefore, our pre-trial value of this case would more nearly approximate $200,000.00.

Awards based on similar physical injuries:

  • Jury verdict in excess of $350,000 affirmed on appeal from Orange County where plaintiff suffered “‘flexion extension’ injuries, a herniated disc at the C5-C6 level of the cervical spine, and a bulging disc at the L-5/S-1 vertebra of the lumbar spine” due to a car accident.  Orris v. West, 189 A.D.2d 866, 593 N.Y.S.2d 58 (2d Dept. 1993);
  • On appeal from Queens County, after jury awarded $426,000 for four bulging discs of the cervical spine and two bulging discs of the lumbosacral spine, appellate court ordered new trial unless parties stipulated to reduce damages to $175,000. The reduced award consisted of $100,000 for past pain and suffering and $75,000 for future pain and suffering. Maisonaves v. Friedman, 255 A.D.2d 494, 680 N.Y.S.2d 619 (2d Dept. 1998);
  • On appeal from Kings County, after jury awarded $400,000.00 for bulging disc in the lower back with attendant pain in the lower back, neck, and legs (no herniation), appellate court ordered new trial unless parties stipulated to reduce damages to $150,000.00, representing past pain and suffering of $60,000 and future pain and suffering $90,000. Tariq v. Miller, 240 A.D.2d 395, 657 N.Y.S.2d 769 (2d Dept. 1997).

At the time of the accident, Ms. Calderon Ortega was 19-years-old.  She had never treated for back pain prior to the date of the accident.  However, after the accident, she continued to complain of pain to her treating physician for over a year.  The pain Ms. Calderon Ortega experiences interrupts her sleep and causes her to feel angry.  Ms. Calderon Ortega continues to feel the pain in her back every day.

Based on the above cases, it is clear that Ms. Calderon Ortega would be awarded much more than $100,000.00 at trial.  For all the foregoing reasons, our mediation settlement demand is $100,000.00.

Respectfully submitted,

                                                                       MARTIN + COLIN, P.C.

                                                                        WILLIAM MARTIN

WM/cr

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