SF215152 MIL TRIAL BRIEF July 16, 2024 (2024)

 
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 KEVIN J. GRAY, ESQ. (SBN 142685) kgray@tysonmendes.com IAN P. WILSON, ESQ. (SBN 271075) iwilson@tysonmendes.com SHELLEY A. KRAMER, ESQ. (SBN 83542) skramer@tysonmendes.com TRACI A. OWENS, ESQ. (SBN 200283) traciowens@tysonmendes.com TYSON & MENDES LLP 371 Bel Marin Keys Blvd., Suite 100 Novato, CA 94949 Telephone: (628) 253-5070 Facsimile: (628) 299-7764 Attorneys for Defendants SAN MATEO COUNTY TRANSIT DISTRICT and TAMMY COOPER erroneously sued as TAMMI COOPER10 [Exempt from filing fees pursuant to Government Code $6103]1112 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA13 COUNTY OF SAN MATEO14 CHRISTINE FERRERA, Case No. 20-CIV-0168815 Plaintiff, Assigned to the Hon. Jeffrey Finigan Dept. 2416 VS. TRIAL BRIEF OF DEFENDANTS SAN17 TAMMI COOPER, SAN MATEO COUNTY MATEO COUNTY TRANSIT DISTRICT TRANSIT DISTRICT AKA SAMTRANS; and AND TAMMY COOPER18 DOES | through 10, inclusive,19 Defendants. Date: August 5, 202420 Time: 2:00 p.m. Dept: 242122 Defendants San Mateo County Transit District, and Tammy Cooper, respectfully submit the23 following brief for the assistance of the trial judge.24 I SUMMARY OF THE CASE FOR THE JURY25 This personal injury lawsuit arises out of a two-vehicle accident that occurred on May 1, 2019 in26 San Mateo County. The plaintiff, Christine Ferrera, driving a 2003 Mercedes-Benz, was pulling out of a27 gas station onto a frontage road, when she was hit from behind at a low speed by an articulated, San Mateo28 County Transit District bus, driven by Tammy Cooper, who was leaving a bus stop. 1 TRIAL BRIEF OF DEFENDANTS SAN MATEO COUNTY TRANSIT DISTRICT AND TAMMY COOPERPlaintiff claims substantial damages, alleging that this accident caused her to suffer a traumatic brain injury, as well as neck and back pain, with residual problems that continue, to date. IL. PARTIES AND COUNSEL The following represent counsel who will be present at trial: Plaintiff Christine Ferrera is represented by Walter Haynes, IV, Esq. of the Law Offices of Albert Stoll in San Francisco, California. Defendants Tammy Cooper and San Mateo County Transit District are represented by Ian Wilson, Esq. and Traci Owens, Esq., of Tyson & Mendes, in Novato, California.10 Til. SUMMARY OF THE ISSUES Fault for this rear-end collision is admitted. The only issues for jury trial are causation and11 damages.12 The plaintiff claims, among other things, neck and back pain, concussion, traumatic brain injury,13 vision problems, depression and anxiety, all allegedly resulting from the accident, with lasting issues in14 terms of pain and memory problems.15 Defendants accept that Ms. Ferrera may have sustained soft tissue injury to her neck as a result of16 the modest impact with Ms. Cooper’s bus. Attached as Exhibit A are photographs of the plaintiff's car17 and of the bus at the scene and an excerpt from the AMR and Mills emergency treatment notes. Expert18 testimony will quantify the force associated with this impact, as equivalent to common events in daily life.19 Defendants dispute that the plaintiff sustained traumatic brain injury. At the scene, in the20 ambulance, and at the emergency room, Ms. Ferrera reported that she had no head injury and no loss of21 consciousness.22 The defendants further assert that plaintiff has failed to mitigate her damages, by seeking an23 abundance of medical treatments and evaluations, on a lien basis, rather than utilize her available treatment24 providers and medical coverage.2526 Iv. THE PLAINTIFF At the time of the accident in May, 2019, Ms. Ferrera was grappling with the death of her father,27 after having served as his primary caretaker for seven or eight years. Indeed, she was driving her brother’s28 2 TRIAL BRIEF OF DEFENDANTS SAN MATEO COUN TY TRANSIT DISTRICT AND TAMMY COOPERcar, going to pick up a family member for the funeral. Her father had passed away less than one week before the accident, causing many life changes for Ms. Ferrera, who was close to turning 66 years of age at the time of the accident. Newly unemployed, unmarried and faced with family issues and finding a new place to live, as her father’s house was no longer available, she had a lot on her mind. It is this confluence of factors that is the cause of her lasting problems, which have been embellished and exaggerated. The contemporaneous medical records reflect a modest soft tissue injury — nothing else. Ms. Ferrera was involved in two other traffic collisions, one of which, a 2021 rear-end collision, was quite serious [see below]. Some of Ms. Ferrera’s complaints, notably her vision complaints like convergence insufficiency, emerged only after the occurrences of these other collisions.10 Traumatic Brain Injury Is Disputed.11 Not every accident causes traumatic brain injury. Ms. Ferrera reported no loss of consciousness,12 displayed a perfect Glasgow Coma Scale, and showed no altered behavior or confusion at the scene, as she13 interacted with the investigating officer and called family for assistance. She appeared visibly upset and14 crying upon the arrival of family members at the scene; she also reported nausea. Ferrera appears to base15 her TBI claims on nausea and the development of further symptoms, namely headaches, as clinical16 indicators of a brain injury.17 Attached as Exhibit B is a copy of the police report, which includes Ms. Ferrera’s statements at the18 scene. Neither EMTs nor the emergency room doctor saw any indication of injury to Ms. Ferrera’s head or19 face; no such thing was reported at the time. By the time of her deposition in November 2021, however,20 Plaintiff could not recall whether she hit her head on the headrest or her face on the steering wheel.21 Plaintiff’s counsel construes Ms. Ferrera’s failure of recollection in 2021 as evidence that she “lost time”22 during the accident, and in fact hit her head, lost consciousness, and lost memory, so as to meet the criteria23 for a traumatic brain injury. To the contrary, in response to questions from the officer, the EMTs, and the24 emergency room doctor, Ms. Ferrera did not say “I don’t know,” or “I don’t remember.” She consistently25 reported that she did not hit her head and did not lose consciousness.26 Plaintiff’s accident reconstruction expert Dr. Bahram Ravani, Ph.D. will offer testimony at trial that27 the accident caused a 10 m.p.h. change in velocity of Ms. Ferrera’s vehicle, despite testifying on July 12,28 2024 that he did not know for certain how far Ms. Ferrera’s vehicle travelled forward after being struck by 3 TRIAL BRIEF OF DEFENDANTS SAN MATEO COUNTY TRANSIT DISTRICT AND TAMMY COOPERthe bus or knowing with the location of the point of contact on either vehicle. What’s more, Dr. Ravani determined that the change in velocity of Ms. Ferrera’s vehicle was caused, at least in part, by a collision with a bus travelling at a constant rate of acceleration. That is simply not possible based upon the videos in defendants’ receipt. Finally, the change in velocity also rests upon the puzzling assumption that the two vehicles did not separate after the crash, but instead, rotated, more or less, after the two made contact with each other. Juries do not need to be experts in the field of mechanical engineering to see that this assumption is incorrect, and they will see video evidence of the crash, early and often. Regarding Ms. Ferrera’s injuries, she intends to offer reporting from neuro-radiologist Murray Solomon, MD, that plaintiff’s imaging studies, specifically a DTI imaging study performed by Dr.10 Solomon, showed asymmetry between left and right, which Dr. Solomon considers a “red flag” for11 traumatic brain injury. Plaintiff subsequently withdrew Dr. Solomon as a witness on July 3, 2024, despite12 disclosing him on June 17, 2024. It is anticipated that plaintiff will still attempt to introduce Solomon’s13 findings through the testimony of either Dr. Angelone or Dr. Miranda, neither of whom is qualified to14 testify about said imaging and, thus, neither of whom can lay a foundation for its introduction at trial. (Dr.15 Solomon’s testimony, and indeed all reference to DTI imaging, is the subject of motions in limine.)16 The defense will be offering further testimony from David Wilson, M.D., Ph.D., a professor in17 residence at the Department of Radiology and Biomedical Imaging at the University of California, San18 Francisco. Dr. Wilson will opine that the available imaging data cannot be used to substantial a diagnosis19 of traumatic brain injury. Diffusion tensor imaging (DTI) is an exploratory technology that should not be used20 clinically in the prospective evaluation of patients, especially asymmetries of fractional anisotropy (FA) that21 are poorly validated in the peer-reviewed literature. Hyperintensities and asymmetries of the brain are not22 validly used as evidence of prior trauma, or more specifically, evidence of a particular traumatic event. More23 importantly, Dr. Wilson will explain that the absence of typical acute workup for intracranial trauma (i.e.24 evaluation in the emergency room, computed tomography or CAT scan) immediately following the accident25 suggests that emergency workers and other observers, who saw and interacted with Ms. Ferrera at the time,26 considered brain injury unlikely.27 Howard Friedman, Ph.D., performed a neuropsychological evaluation of the plaintiff, and testified28 at length about his findings on July 8, 2024. In short, Dr. Friedman opined that other potential causes of 4 TRIAL BRIEF OF DEFENDANTS SAN MATEO COUNTY TRANSIT DISTRICT AND TAMMY COOPERPlaintiff's alleged cognitive deficit can largely be discounted, such as Major Depressive Disorder, which was diagnosed before the accident and is more likely due to additional, unrelated factors beyond the accident, such as family or marital stresses or traumas and/or her time spent as a caregiver (made worse by her decision to decline both prescribed antidepressants and/or therapy) and/or Posttraumatic Stress Disorder (“PTSD”), which does not appear likely, given Plaintiff's own denial of hypervigilance or startle reaction and her avoidant symptoms being more likely the product of the events of the period like her father’s passing and her children’s’ absence. Although some mood issues exist, they cannot alone cause the cognitive problems that Plaintiff suggests, absent an exaggeration of her symptoms during the test. Plaintiff now appears to be basing at least part of her injury claims upon vision acuity disorder, in turn based upon whiplash associated disorder , or WAD, from the accident.10 Retained plaintiff's expert Dr. Jeremy Shumaker, D.O. was retained on June 24, 2024 and11 apparently saw the patient only once; however, he manages to opine that Ms. Ferrera’s vision acuity12 troubles are the sole product of the May 1, 2019 bus accident; however it fails to consider several key facts13 or simply gets them wrong. Take for instance, the following:14 1 Ferrera’s intake sheet at Rising Star Optometry and Shumaker’s report both indicate that15 Ms. Ferrera “lost consciousness for less than 30 minutes” following the subject accident, which is16 contradicted by every medical treater on the date of loss and by Ms. Ferrera, herself, in the San Mateo17 County Sherriff’s Department’s collision report;18 2 Ms. Ferrera was diagnosed with convergence excess esophoria by Dr. Fong on or around19 June 10, 2021; this condition is not considered a sequela of traumatic brain injury and is largely attributed20 to the existence of cataracts, which Ferrera had at the time. Cataracts would also explain Ferrera’s21 complaints of light sensitivity; Fong prescribed yoke based prism glasses and referred the patient for22 cataract surgery; it is documented that her condition improved following the use of the glasses;23 3 Ms. Ferrera was involved in another motor vehicle accident on September 23, 2021, in24 which her Nissan Altima was totaled and she sought subsequent medical attention for inter alia worsening25 headaches and pain behind her right eye, over the course of several months following that collision;26 [photographs and medical reporting attached as Exhibit C.]27 4 Ms. Ferrera presented to another eye doctor, Dr. Randall Feurst, O.D., on or around28 November 15, 2022, where she was diagnosed with convergence insufficiency, arguably a potential 5 TRIAL BRIEF OF DEFENDANTS SAN MATEO COUNTY TRANSIT DISTRICT AND TAMMY COOPERresidual symptom of trauma; what is not up for argument: the diagnosis of convergence insufficiency comes (1,294) days after the accident with the District bus. Unfortunately for Dr. Shumaker, he did not have the benefit of a full patient history from Ms. Ferrera before forming his full and final opinions regarding the ultimate medical cause of her vision problems. Accordingly, he has incorrectly attributed the patient’s vison troubles to a five (5) year old fender-bender instead of the more serious accident in 2021. V. SPECIAL DAMAGES Plaintiff's medical bill for the emergency room at Mills Hospital in Burlingame totals approximately $380.00. Plaintiff sought additional treatment six (6) days later and told her doctor that she “wants imaging"10 for back pain, headache, neck pain, nausea and vomiting.11 The plaintiffs treatment does not mention concussion or traumatic brain injury in earnest until she12 starts treating with lien doctors on or around April 19, 2021 when she presents to Dr. Edgar Angelone,13 Ph.D. Only then is post-concussive syndrome discussed, which is approximately (701) days after the14 accident.15 It is anticipated that plaintiff, a Medicare recipient, will claim the following past medical16 expenses at trial:17 Past Medical Specials18 Total billed $77,232.57; Total Medicare CMS lien $7,144.3419 Insight Health Corp (Murray Solomon, MD)20 Total Billing: $2,196.0021 Medicare Pay: $ 229.97 Balance: $ 57.49 $287.4622 Dr. Angelone $12,000.0023 Dr. Stephenson $24,552.25 Dr. Fuerst $381.0024 Dr. Fong $2530.0025 Future Medical Specials26 Expert discovery is currently underway; however, the following, paid plaintiff experts have2 produced future care “recommendations” for consideration by a jury. Those future recommendations total28 6 TRIAL BRIEF OF DEFENDANTS SAN MATEO COUNTY TRANSIT DISTRICT AND TAMMY COOPER1 approximately $55,285.00, to date, with no less than three (3) recommendations pending. They are 2 itemized as follows: e Dr. Edgar Angelone, Neuropsychology $13,778.00 [many items are “TBD”] e Dr. Jeremy Shumaker, Optometry $41,507.00 Given the current total, it is anticipated that Ms. Ferrera’s remaining experts are prepared to opine that her future care will likely skyrocket well past six figures. VI. DEFENDANTS’ EXPERT WITNESSES Howard Friedman, Ph.D., ABPP - Neuropsychologist 1855 San Miguel Drive, Suite 23 Walnut Creek, CA 9459610 Tel.: (925) 324-159311 David Wilson, M.D., Ph.D. - Neuroradiologist12 Department of Radiology & Biomedical Imaging University of California, San Francisco13 505 Parnassus Avenue, M-391 San Francisco, CA 94143-062814 Tel.: (415) 476-153715 Dr. Steven L. McIntire, M.D. - Neurologist16 8014 Crowley Road Palo Alto, California 9430417 Tel.: (650) 723-646918 Dr. Andrew Calman, MD, Ph.D — Ophthalmologist19 Premier Eye Care of San Francisco 2480 Mission St #21220 San Francisco, CA 94110 (415) 648-360021 Reg L. Gibbs — Life Care Planning22 Mountain Rehab, PC23 1690 Rimrock Road, Suite I Billings, MT 5910224 Dr. Charles R. Mahla, Ph.D. — Forensic Economics25 Econ One 11335 Gold Express Drive, Suite 140 Gold River, California 956702627 Vil. WITNESS LIST28 Defendant’s witness list is submitted under separate cover. 7 TRIAL BRIEF OF DEFENDANTS SAN MATEO COUNTY TRANSIT DISTRICT AND TAMMY COOPERVil. EXHIBIT LIST Defendants’ exhibit list is submitted under separate cover. IX. JURY INSTRUCTIONS Defendants’ list of requested jury instructions is submitted under separate cover. x. ANTICIPATED TRIAL DAYS Given the number of percipient and expert witnesses, the defense expects plaintiff's case to take no less than ten trial days, once a jury is impaneled. Defendants expect to offer two percipient witnesses and four expert witnesses, which should also take about a week. XI. CONCLUSION10 Ms. Ferrera was involved in a minor collision five (5) years ago. She first alleged neck and back11 problems following the crash. Once the record showed she had prior existing neck and back problems, she12 pivoted to allege myriad neurological complaints based upon a “likely” head strike and/or alleged whiplash related headache, vision impairment and cognitive decline, all which she alleges will require long-term13 care, at great cost. She makes these claims despite innocuous findings from her primary care physicians,14 despite her involvement in a subsequent accident two years later, despite seeking emergency care for that15 accident, despite seeking follow up care, for subsequent related conditions [vision and headaches]16 developing after that accident vision and despite no doctor diagnosing her with acute head injury or residual17 symptoms from it, until 2021.18 Mil19 Mil20 Mil21 Mil22 Mil23 Mil24 Mil25 Mil26 Mil27 Mil28 Mil 8 TRIAL BRIEF OF DEFENDANTS SAN MATEO COUNTY TRANSIT DISTRICT AND TAMMY COOPERTaking all of this into account, Defendants doubt that a jury will not question Ms. Ferrera’s ever- changing narrative or sympathize with her once the accident video is shown and a timeline of events is introduced. Accordingly, Defendants anticipate this case will conclude with a judgement favorable to the defense and the very real possibility that Ms. Ferrera will owe defendants’ expert fees and costs once this matter is said and done. Dated: July 15, 2024 TYSON & NDES, LLP By. KEVIN J. GRAY IAN P. WILSON10 SHELLEY A. KRAMER TRACI A. OWENS11 Attorneys for Defendants SAN MATEO COUNTY TRANSIT DISTRICT12 and TAMMY COOPER13141516171819202122232425262728 9 TRIAL BRIEF OF DEFENDANTS SAN MATEO COUNTY TRANSIT DISTRICT AND TAMMY COOPEREXHIBIT A— % ane Ay cm -_ lf Pad ss a dd =.) — Py} a, 4 lS me —4 = f — os s me / eel rZ eZ i, 9 ad Se. a ye a vA ~ tar i (em — ps Te a ef i a 4 id oe es ae os ar. X if f ait —— - ors, 

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