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Robert W. Johnson & Associates was retained to provide economic testimony in quantifying the present cash value of lost earning capacity and future medical expenses.

Location: Glendale, California

Case: Aidan Ming-Ho Leung, a minor, by and through his guardian ad litem Nancy Leung v. Steven Wayne Nishibayashi, M.D., an individual; Steven Wayne Nishibayashi, M.D., Inc., a Professional Corporation; Verdugo Hills Hospital, a California Corporation; and Does 1 – 50, Inclusive.

Court: Superior Court of Los Angeles County, North Central District, Case No. BC343985

Plaintiff’s Attorneys: Luan K. Phan, Albert T. Liou, and Donald Saltzman of Richardson & Patel, LLP, Los Angeles, California.

Judge: The Honorable Laura A. Matz.

Case Synopsis: This case involves Aidan Ming-Ho Leung, a newborn infant, and Steven Wayne Nishibayashi, MD.

On March 24, 2003, Aidan was born at Verdugo Hills Hospital under the care of Dr. Nishibayashi. Aidan was born a healthy child, but he exhibited numerous risk factors that placed him at high risk to develop kernicterus, a neurological disorder caused by severe jaundice.

The day after Aidan was born, Dr. Nishibayashi examined him and told the Leungs that Aidan was a healthy baby. According to the Leungs’ testimony, Aidan had some bruises on his head, also known as cephalhematomas, which Dr. Nishibayashi stated were potentially caused by coming through the birth canal. He told the Leungs it was nothing to worry about and that Aidan could be discharged.

The Leungs were not told that such bruising can generate high levels of bilirubin, which increases the risk of severe jaundice and kernicterus. Jaundice is a sign of the buildup of bilirubin, a yellow bile pigment, produced in greater quantities than a baby’s liver can excrete.

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According to the Leungs’ testimony, Aidan began to experience jaundice a few days after being discharged from the hospital. Aidan’s mother called Dr. Nishibayishi’s office and spoke to a nurse regarding Aidan’s symptoms. After speaking with Dr. Nishibayishi, the nurse told her that Aidan’s symptoms are very common and not to worry. The nurse said to put Aidan under sunlight and the jaundice would go away.

Two days later, Aidan became lethargic and was barely feeding. Mrs. Leung called Dr. Nishibayashi’s office again, but was unable to communicate with him. She was referred to another doctor, and after discussing the symptoms with this doctor, she was told to take Aidan to the emergency room at another hospital.

Initially, the doctors determined Aidan was dehydrated. Once the doctors did additional testing, they were alarmed at his bilirubin levels. Because of the high concentrated levels of bilirubin, they immediately needed to do a blood transfusion. There were two attempts to remove the buildup through blood transfusions that failed. As a result, Aidan suffered permanent brain damage.

Aidan, now 4, will require constant medical attention for the rest of his life. According to plaintiff’s counsel, this could have all been avoided had the Verdugo Hills Hospital and its medical staff diagnosed his conditions, alerted the parents and provided timely treatment.

Expert Testimony: First, Mr. Johnson was retained to calculate Aidan’s future earning capacity loss. California medical malpractice law requires that both the present value and total future value (gross lifetime payout) be presented to the jury. Since Aidan was still a toddler, he had no earning capacity history. Consequently, Mr. Johnson looked to his parents’ level of educational attainment to establish a range of potential earnings capacity for Aidan. Both of his parents had advanced degrees, with Aidan’s mother holding an MBA and his father a law degree. The data would come from the latest Educational Attainment tables provided by the U.S. Census Bureau. Mr. Johnson was able to calculate three earning capacity scenarios based on educational attainment of a) bachelor’s degree, b) a master’s degree, and c) a professional degree. Mr. Johnson also included a national average fringe benefits package for each scenario. This yielded a present value range of $2.3 to $3.7 million and a future value range of $18.6 to $30.4 million.

Second, Mr. Johnson was asked to calculate Aidan’s future lifetime medical expenses. Mr. Johnson reviewed the 100+ page life care planner’s future medical plan. The plan consisted of three different levels of care. Aidan’s brain damage will make him dependent on 24 hour a day care for the rest of his life. Mr. Johnson presented the three future medical expense scenarios which had a present value range of $18.0 million to $19.4 million and a future value range of $106.5 million to $113.3 million.

Results: After 6 weeks of trial, the jury awarded Aidan $96,410,375 (or present cash value of $15,482,375). The jury award consisted of:

  • $78,375 in past medical expenses,
  • $82,782,000 in future medical expenses,
  • $13,300,000 in future lost earnings and
  • $250,000 in general damages. California has a $250,000 cap on non-economic medical malpractice damages.

Attorney Comments: According to Plaintiff’s attorney Luan K. Phan of Richardson & Patel, LLP, “Having Mr. Johnson on my team of experts was one of the best decisions I made on this case. At first, I was a little concerned when I saw that Mr. Johnson’s future wage and medical damages calculated were over $100 million. Mr. Johnson was able explain to the jury that the reason why the damages were so large was because Aidan still had a long life expectancy and the concept of compounding. He emphasized that not one penny of the over $100 million in future medical expenses would go to Aidan or his parents. But every penny of future medical expenses would go to the doctors, nurses, therapists and equipment needed to maintain Aidan’s quality and dignity of life. Mr. Johnson also shredded the opposing economist’s opinion to the point where it was not credible. First, Mr. Johnson illustrated how the defense economist’s discount rate was actually a ‘fantasy’ number and did not exist in the current financial markets. Second, Mr. Johnson proved to the jury that the reason the defense economist’s numbers were so small was because he wanted the ‘taxpayers’ to pick-up the bulk of the expenses. The jury really believed Mr. Johnson’s testimony and totally dismissed the defense economist.”