Trial Magazine

Melissa Alvarez, 33, was driving her SUV northbound on a California highway with her 3-year-old son in a car seat in the second row. The highway had two northbound lanes and a merge lane. Sometime earlier, truck traffic leaving the Syar Industries Napa Quarry had spilled gravel onto the merge and right lanes, and the company had sent a street sweeper to the site to clean the gravel. As Alvarez was driving in the right lane adjacent to the merge lane, a Syar Industries employee operating the street sweeper in the merge lane attempted to make a U-turn into the right lane. The street sweeper struck the SUV.

Alvarez sustained multiple fractures and other injuries, leaving her unable to move. As she struggled to get to her crying son, the SUV caught fire. Two good Samaritans dragged her from the burning vehicle, and then one went back to rescue her son. Alvarez and her son were taken to a hospital emergency room.

Alvarez was diagnosed with multiple fractures to her right leg, including a mid-shaft transverse femur fracture with lateral displacement, a tibial plateau fracture, a comminuted fracture to the fibula, and a bimalleolar ankle fracture. She also suffered fractures to her ribs and left foot, seat belt contusions, abrasions and road rash from being dragged from her vehicle, and neck and chest pain. She underwent fixation of the femur fracture with intramedullary nails. Several days later, she underwent open reduction internal fixation of the tibial plateau and ankle fractures.

The fibula fracture healed with a nonunion and required open reduction internal fixation, which was performed about six months after the incident. Alvarez also underwent additional ankle surgery and removal of hardware. About three months later, she underwent steroid injections for pain in her right knee and hip. Over the next several months, she ­underwent arthroscopic debridement procedures to remove tissue and fragment debris from her right knee and ankle.

Alvarez suffers constant pain in her knee and ankle, which makes it difficult for her to stand or walk long distances. She will require a knee replacement in the future because of joint degeneration, and she will also likely require an ankle fusion and eventual replacement surgery. Her past medical expenses were stipulated at $295,000, and her future medical expenses are estimated at between $700,000 and $1.4 million.

At the time of the incident, Alvarez was working as a juvenile counselor with the county probation department. She missed time from work, incurring about $28,000 in lost earnings, and was unable to return to her job. Her future lost ­earnings are estimated at between $800,000 and $3 million, depending on whether she will be able to obtain a different job with the county.

Alvarez’s son suffered a probable contusion to his left foot, which was splinted. The injury resolved without additional treatment.

Alvarez, individually and on her son’s behalf, sued Syar Industries and its employee, alleging that he was negligent in attempting a U-turn into a lane of traffic and striking her SUV.

The defendant’s insurance carrier initially retained accident reconstruction and human factors experts to try to support an argument that Alvarez was on a hands-free cellphone call at the time and that the call had slowed her reaction time, preventing her from stopping in time. The plaintiffs’ experts were prepared to show that this was not the case, however, and the defense stipulated to liability on the first day of trial. The plaintiffs then dismissed the defendant driver for a waiver of costs, and the case proceeded against Syar Industries on damages.

In addition to testimony regarding her own injuries, Alvarez presented testimony about her son’s emotional trauma as he was trapped in his car seat. She testified that she could hear him calling for her. The good Samaritan who went back to rescue him testified about the intense, overwhelming heat. The plaintiffs were unable to assert a claim for bystander emotional distress per se because of the minor plaintiff’s young age, his lack of recollection, and his inability to articulate what he had lived through. Counsel put him on the stand so that the jury could see him and hear him talk about himself and his family, but he was not questioned about the incident.

The defendant disputed Alvarez’s claimed damages, arguing that her future medical expenses were only $200,000 to $300,000 and that her future lost earning capacity ranged from $600,000 to $900,000.

Before trial, the plaintiff made a statutory settlement demand of $1.9 million on her behalf and $50,000 on her son’s behalf. She later demanded $7 million after her treating doctors were deposed. The defense failed to make any offers.

Subsequent mediation failed, and the case headed to trial. The plaintiff’s last pretrial demand was $6.9 million, and the defendant’s final offer was $600,000.

The jury awarded approximately $8.44 million, including approximately $8.31 million to Alvarez and $129,000 to her son. Alvarez’s award included $4 million for future pain and suffering, approximately $2.22 million for future economic loss, $1.75 million for past pain and suffering, and approximately $340,800 for past economic loss. Her son’s award included $100,000 for past pain and suffering, $25,000 for future pain and suffering, and approximately $4,000 for past economic damages. The verdict has been paid.

Citation: Alvarez v. Syar Indus., Inc., No. 26-67154 (Cal. Super. Ct. Napa Cnty. Feb. 1, 2017).

Plaintiff counsel: AAJ members Roger A. Dreyer and Noemi Esparza, both of Sacramento, Calif.

Plaintiff experts: Chad MacLachlan, orthopedic surgery, Vallejo, Calif.; Thomas Lee, podiatry, Vacaville, Calif.; Carol R. Hyland, life care planning, Oakland, Calif.; and Barry Ben-Zion, economics, Santa Rosa, Calif.

Defense experts: Joel C. Wilson, accident reconstruction, Menlo Park, Calif.; James Jay Todd, human factors, San Mateo, Calif.; Victor Prieto, orthopedic surgery, San Francisco; Alex Barchuk, physical medicine, Kentfield, Calif.; Maria Brady, vocational rehabilitation, and Diana Bubanja, life care planning, both of Walnut Creek, Calif.; and Philip H. Allman III, economics, Oakland.