Hrg 12318 Trial BriefBriefCal. Super. - 6th Dist.January 11, 201710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17CV305017 Santa Clara - Civil R. Arg Richard Alexander, Esq. (48432) Electronically Filed by Superior Court of CA ra@alexanderlaw.com : Nina G. Shapirshteyn, Esq. (251122) County of Santa Clara, ns@alexanderlaw.com on 11/30/2018 12:26 PM ALEXANDER LAW GROUP, LLP Reviewed By: R. Aragon 99 Almaden Boulevard, Suite 575 Case #17CV305017 San Jose CA 95113 Envelope: 2228324 Telephone: 408.289.1776 Facsimile: 408.287.1776 Attorneys for Plaintiffs SUPERIOR COURT — STATE OF CALIFORNIA COUNTY OF SANTA CLARA — UNLIMITED CIVIL JURISDICTION MURRAY WALKER, ALLISON GONG, CASE NO. 17CV305017 ALEXANDER JOHNSON and CAROL WALKER, PLAINTIFF’S TRIAL BRIEF Plaintiffs, Vv. KEVIN MASARU COWELS, ROBERT J. Complaint Filed: January 11, 2017 COWELS JR., ANN HIRATA COWELS, Trial Date: December 3, 2018 and DOES 1 to 100, Defendants. L STATEMENT OF THE CASE On May 21, 2016, at approximately 11:00 a.m., Defendant Kevin Cowels was driving northbound on 7® Avenue, Santa Cruz, when he made an abrupt left turn, crossing over the centerline into oncoming traffic and colliding with plaintiff Murray Walker’s car. Both front occupants of the Walker vehicle, plaintiffs Allison Gong and Murray Walker, suffered traumatic brain injury. Back seat passenger Alexander Johnson sustained soft tissue injuries. II. PARTIES Plaintiffs Murray Walker, Allison Gong and Alexander Johnson are represented by -1- PLAINTIFF'S TRIAL BRIEF gon 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Richard Alexander and Nina G. Shapirshteyn with Alexander Law Group. Defendants Kevin Masaru Cowels, Robert J. Cowels and Ann Hirate Cowels are represented by Deborah Bjonerud by Phillip Anderson and Associates. III. SUMMARY OF FACTS Defendant Kevin Cowels was driving a Honda Accord around 30 mph when he suddenly crossed the double yellow line into oncoming traffic and collided into a Honda Fit. The left front corner of the Honda impacted the left front corner of the Honda Fit, tossing the occupants of plaintiffs’ vehicle forward and then clockwise. All frontal airbags deployed, and side curtain airbags deployed in the plaintiffs’ vehicle due to the impact. Accident reconstruction places the speed of the Cowels and Walker vehicles at time of the impact at between 25 and 30 miles per hour. The impact caused severe front-end damage to both cars, totaling them. The delta-V to plaintiffs’ vehicle is calculated at 20-22 miles per hour, more than enough force to substantiate plaintiffs’ traumatic brain injury claims. Defendant Kevin Cowels and Ann Cowels, the owner of the Honda Accord, admit that defendant Kevin Cowels’ actions were the sole proximate cause of the collision and that there is no evidence plaintiffs may have caused or contributed to the collision. IV. INJURIES AND DAMAGES SUSTAINED A. Murray Walker Murray Walker was in the front driver’s seat at the time of the collision and suffered an acceleration-deceleration injury to his head and cervical spine, causing traumatic brain injury as well as orthopedic/musculoskeletal injury to his neck, shoulders, and left hip. Murray Walker had suffered an AVM (arteriovenous malformation) stroke with subsequently corrective brain surgery in 1999. He had returned to work full-time in 2000 and was fully-recovered by 2003, as confirmed by 2002 neurocognitive testing. There were no complaints about his performance in the ensuing 13 years up until this May 2016 incident. Post-accident, Murray was diagnosed with post-concussion syndrome. Murray was evaluated by Dr. Robert Quinn, physical medicine and rehabilitation, within a month of the 2. PLAINTIFF'S TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Incident. Dr. Quinn noted irritability, frustration, distractibility, and confirmed “MV A with concussion.” He followed Mr. Walker and documented post-concussion encephalopathy, possibly more significant due to the prior cerebral involvement. Dr. Quinn noted that Mr. Walker’s performance deteriorated when he was feeling fatigued. He noted “there is no doubt in my mind that Murray is permanently partially disabled.” Murray’s primary care physician documented “concussion secondary to MV A” and “post-concussive encephalopathy.” Neuropsychological testing confirmed a cognitive disorder. Loss of Income In the aftermath Murray has had classic post-concussive problems with poor energy level, attentional difficulties, problems multi-tasking, memory complaint, depression, and anxiety. To his credit he did not pursue disability but attempted to return to work. However, he was unable to keep up his normal schedule, had to drop classes and other activities, could not drive very far, had little cognitive energy, and eventually was taken off work by his doctors. At the time of the collision Murray Walker, then 63 years, of age, was Director of Music and Head of Fine Arts at York School, a private secondary school in Monterey, California, and also Director of Music at Calvary Episcopal Church in Santa Cruz. Following the May 21, 2016 collision, Murray Walker attempted to return to work on August 8, 2016. He quickly discovered that due to a combination of post-accident problems— fatigue, difficulty with memory and concentration, other cognitive deficits—he was unable to perform his job functions and was placed on leave September 3, 2016 to January 2, 2017. He returned to work on modified (50-60% of full time) status January 3, 2017. He worked 50-56% of full time status through the end of academic 2016-2017, and for academic 2017-2018, but was never able to function at his pre-accident level. He took a disability retirement May 2018. But for the accident, assuming a normal work-life capacity, he would have been expected to continue teaching until 2023. Murray Walker’s wage loss, both past and future, as a consequence of the incident, totals $743,254. 3- PLAINTIFF'S TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Allison Gong Allison Gong was seated in the front passenger seat at the time of the incident. She suffered traumatic brain injury; contusions of the left knee, right shin, right cheek, left and right hips; whiplash to the neck, shoulders, and upper back; sprained or cracked ribs on left and right sides; abrasions of the head; and post-traumatic stress disorder. By far, the most debilitating is the traumatic brain injury. Since the crash, Allison’s existence has been plagued by daily hours-long headaches, sensitivity to light, noise, motion, memory failure, inability to focus and make decisions, loss of confidence, extreme fatigue, poor memory, and depression. Allison is a marine biologist and university professor; these deficits have had a profound impact on her life. Neurologist Michael Gansaeuer evaluated Allison one month post-accident and noted that she continued to have difficulty with attention, concentration, memory, word finding and feeling easily overstimulated since her MV A. She has a dull headache most of the time which is worse when she is tired or overstimulated. Dr. Gansaeuer’s conclusion: “She has typical symptoms of an acceleration/deceleration brain injury.” He advised that there is no specific therapy for her symptoms and recommended that she should attempt to return to function gradually, and that “it may be a prolonged course to full recovery.” Allison’s condition had not improved by August, and the assessment by her physicians was: “Postconcussion Syndrome — symptoms continue, and she is unable to work at this time.” Allison was evaluated by neuropsychiatrist Richard Alloy in November 2016. He concluded that she demonstrated ongoing symptoms in cognitive (memory and problem solving) affective (irritable, over-reactive, and anxious) and somatic (headaches and sensory oversensitivity to visual and auditory stimuli) clusters. Loss of Income Due to these multiple issues, Allison was unable to teach for two semesters following the accident. Her condition has gradually improved, and she returned to teaching in the fall of 2017. 4- PLAINTIFF'S TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Allison earned Doctor of Philosophy degree from University of California, Santa Cruz, in 2001. From January 2002, at Cabrillo College and beginning in August 2012 at California State University, Monterey Bay, she has been teaching biology as an Adjunct biology instructor. Due to her injuries, Allison was unable to teach for a full year after the accident (Fall 2016 semester or Spring 2017 semester). She returned to work at California State University, Monterey Bay in August 2017. She returned to work at Cabrillo College in January 2018. Total loss of income is $39,662. While she has been able to return to teaching, what used to come easily now requires much more effort, structure, and concerted energy to complete. Allison continues to experience improved but residual physical (headaches, fatigue, sensory overstimulation) cognitive (decreased attention/concentration, word-finding/naming, sense of time ability to plan and prioritize, decision-making, and memory) and emotional (irritability, anxiety in cars) problems. She continues to use compensatory strategies to most effectively manage her responsibilities, including taking diligent notes, relying heavily on a calendar, sending e-mails to herself, and planning activities and taking time to reset the next day. She has limited her career choices, e.g., not applying for full-day teaching opportunities, due to ongoing fatigue, being more easily overstimulated, cognitive difficulties, and/or difficulty driving long distances. C. Alex Johnson Alexander was riding in the rear passenger seat at the time of the accident. He describes the crash as “having the wind knocked out” of him. Alexander sustained contusions and bruising to the chest and both hips. His neck and shoulder were stiff and ached for one month. Alexander holds a BS in Civil Engineering from University of California, Davis. He is self employed as a GIS and data management consultant for environmental and water resources projects. His lost income in the amount of $3,377. 5 PLAINTIFF'S TRIAL BRIEF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Allison and Alexander have been married for 19 years. Before the accident they enjoyed conventional hobbies of attending sporting events, hiking, traveling, theatre and concerts as well as unique hobbies, such as beekeeping, choral singing, and birdwatching. In the five years before the crash, the couple had taken 18 vacations. Since the accident, Allison’s disability controls their lives. Allison’s entire energy and focus is devoted to trying to maintain her professional status, and she has neither the time nor the energy to participate in the activities Allison and Alexander had previously enjoyed together. Dated: November 30, 2018 ALEXANDER LAW GROUP, LLP re a qd. SHAPIRSHTEYN obs for Plaintiff -6- PLAINTIFF'S TRIAL BRIEF B W M OS OO 0 NN OS 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 X Dated: November 30, 2018 (6 PROOF OF SERVICE I am employed in the County of Santa Clara, State of California; my business address is 99 Almaden Boulevard, Suite 575, San Jose, California 95113. 1 am a citizen of the United States of America, over the age of 18 and not a party to the within action. On this date I served the foregoing on the following parties in the manner shown: Deborah Bjonerud, Esq. Philip M. Andersen & Associates 6210 Stoneridge Mall Road Pleasanton, CA 94588 Ph: 925.225.6838 Fx: 855.732.9437 Attorneys for Defendants (BY FAX) I am readily familiar with the firm’s practice of facsimile transmission; on this date the above-referenced documents were transmitted, the transmission was reported as complete and without error and the report was properly issued. (BY MAIL) I am readily familiar with the firm’s practice for the processing of mail; on this date, the above-referenced documents were placed for collection and delivery by the U.S. Postal Service following ordinary business practices. (BY OVERNIGHT DELIVERY) I am readily familiar with the firm’s practice for the processing of documents for delivery services; on this date, the above-referenced documents were placed for collection and delivery following ordinary business practices. (BY ELECTRONIC FILING) On this date I provided the documents(s) listed above electronically through the Court’s electronic filing service provider pursuant to the instructions on that website. (BY E-MAIL) On this date, the above-referenced documents were converted to electronic files and e-mailed to the addresses shown. (BY HAND DELIVERY) I caused the above documents to be hand delivered. Federal: I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. State: I declare the truth of the foregoing under penalty of perjury pursuant to the laws of the State of California. Tr Mantoura Me PLAINTIFF'S TRIAL BRIEF
