The Traumatic Brain Injury Case: Preparation and Trail - Plantiff's Perspective

. The TBI Case -- Initial Interview and Assessing the Case
Because traumatic brain injury cases raise so many complex and specialized issues, it is important to spend adequate time evaluating the case initially. The case will represent an investment of tens of thousands of dollars in your time and probably tens of thousands of dollars in expenses for experts, including physicians, therapists, biomechanical engineers, vocational experts, life care planners, economists, neuropsychologists, and perhaps other experts necessary to prosecute these cases successfully.

The initial interview with the client is critical to assess the client, liability, damages and coverage issues. Enough time must be spent with the client and/or friends and family to obtain the client's complete medical, familial, social, vocational and educational background. All of this background information will be relevant in the case. It is necessary to work with the client and the client's family to address their expectations and attempt to dispel any misconceptions that they may have.

In evaluating the case, it is important to keep in mind the following:

A person does not need to be "knocked out" or in a coma to have sustained a traumatic brain injury; there does not need to be a direct blow to the head in order to sustain a brain injury; often the neurological examination done at the Emergency Room and otherwise will be normal - a gross neurological examination is not designed to pick up the type of subtle cognitive impairments that can result from a diffuse axonal injury; similarly neuroradiological diagnostic tests may be perfectly normal - these tests are also often unable to pick up the type of microscopic damage that results from an acceleration/deceleration injury to the brain; that there are certain classic symptoms such as headaches, dizziness, blurred vision, tinnitus, fatigue, impaired consciousness, confusion, personality changes, impulsivity, etc. associated with post concussion syndrome; that even though the plaintiff suffers a "mild traumatic brain injury" the resulting cognitive and emotional impairments can have a devastating effect on the person's ability to function and work; that because each individual is unique and the number and location of brain cells injured may be unique for each individual, although there are certain typical symptoms associated with post-concussion syndrome, each individuals symptoms and impairments will be somewhat individualized and effect the individual in different ways; there need not be a big collision - crashes at 10 mph can exert a force ten times the force of gravity on the skull and are competent to cause diffuse axonal injury; the person himself may not realize that he has sustained a traumatic brain injury or make the association between his symptoms and dysfunction and the accident until weeks or months later; that the traumatic brain injury may not be accompanied with any visible injuries or evidence of trauma to the head or body; the person may be able to continue to function adequately particularly on trained or familiar tasks and it is not until the person is challenged that his or her deficits become recognized; that there are often associated hearing or vision difficulties although there is no injury to the eyes or ears since the injury is to the brain and that part of the brain which controls these functions; there are often associated vestibular injuries, which result from the same forces that caused the brain injury; there are often emotional sequelae associated with traumatic brain injury and just because the person becomes depressed does not suggest that the etiology of the problems are psychological rather than neurological; the injured individual often may be a poor historian as to the amount of time or whether in fact there was a loss of consciousness; many of the treating neurologists or interns that see the person may not diagnose a traumatic brain injury or post- concussion syndrome because they are unfamiliar with and untrained in minor as opposed to more severe forms of brain injury; that the amount of anatomical injury to the brain, which is all that "mild", "moderate" or "severe" refers to, does not correspond exactly with the functional consequences of the injury; and that there are often personality and behavioral changes associated with post-concussion syndrome.

II. Investigating the Case
Investigation of the traumatic brain injury case is critical and often timing is an important consideration. One must act quickly. Photographs of the client's injuries, the vehicles involved, the scene, and witness statements must be obtained before they become unavailable. Bruises, contusions and other signs of injury should be photographed. The condition of the vehicle should be photographed and, in the appropriate case, the vehicles preserved in their damaged condition. The scene should be photographed and, in the appropriate case, analyzed as soon as possible by an accident reconstructionist. Because witnesses disappear and memories fade, it is essential to obtain written statements preferably from an investigator. If there is evidence that is not within your control that is critical to the case, as may be the case in a products liability case where the product may be controlled by the employer or some other third party, measures should be taken to preserve and produce the evidence even prior to instituting suit on the underlying claim. If the third parties are not cooperative, an action may be brought under Mass.R.Civ.P. 34(e) for the preservation and production of evidence prior to instituting suit on the underlying claim.

In the traumatic brain injury case it will almost always be necessary to obtain the client's complete prior medical records. It will be necessary to meet with the more important clinicians and to make sure that they are aware of the complete medical, school, employment record of the client and can address diagnosis, causal connection, disability and prognosis, either in a report admitted pursuant to Mass.G.L.c. 233, Section 79G or by testimony.

The plaintiff's entire past history must be investigated. This is particularly important in the traumatic brain injury case as often the neuropsychologist's opinion is based upon the plaintiff's current performance on neuropsychological testing as compared with either actual or assumed premorbid capabilities. The more information that the testifying neurologists and medical doctors have regarding plaintiff's actual premorbid functioning, the firmer the basis of their opinions and the less vulnerable to attack on the grounds that the assumptions regarding premorbid performance are not supported by the actual records. Therefore, not only must plaintiff's prior medical records be obtained, but school records, employment records, prior claims and lawsuits and other relevant information must be obtained. The school and employment records will often have the results of standardized testing that can be used by the neuropsychologist as a baseline for comparing post accident IQ and other measures.

Experts who will be needed for trial should be retained earlier rather than later. Such experts may include the accident reconstructionist, biomechanical engineer, vocational and economic experts, etc.

III. Trial of the Case
Openings. There have been studies to show that, due to the effect of primacy, most of the jurors have made up their minds after the openings of counsel. The opening is therefore obviously important in persuading the jury to your position.

The best openings tell a factual story. The lawyer presents the evidence as a storyteller would tell a story. Openings that do not tell a story, but rather, describe the technical nature of the case, the various witnesses that plaintiff expects to call in support of their case and the various stages of the proceedings, and respective roles of the players may be marginally informative, but are not persuasive.

The best openings are made without notes. The opening should be from the heart and convey to the jury the "theme" of the case. To the extent possible, it should personalize the plaintiff and depersonalize the defendant. The use of demonstrative aids with the court's permission is encouraged.

In the trial of a traumatic brain injury case, because the jury often lacks knowledge about traumatic brain injury, it is important to generally cover the following:

The mechanisms and nature of traumatic brain injury. The jury needs to have some information regarding the anatomy of the brain and the mechanisms by which a traumatic brain injury occurs. This must be made as concrete and understandable as possible. Use a model of the skull/brain. Use analogies such as jelly in the bowl to describe the movement of the brain within the skull. Point out that the brain weighs approximately 2 1/2 lbs and rests on a column of bone, muscle and tissue in the skull and is subjected to force when unexpectedly hit from a 2 - 3,000 lb. vehicle. Also describe the connections in the brain and how delicate they are and how cerebral neurons, axons, nerve fibers and blood vessels can be stretched or torn and that these injuries may go undetected by current medical technology. Describe shearing and diffuse axonal injury. Describe the mechanisms of a rear end crash and the movement of the body - the trunk of the occupant moves forward, the head snaps backward and then snaps forward and the brain moves in the same direction of the skull but slightly out of synchronization. Describe the force involved in the collision which depend on the weight and speed of the striking vehicle. Describe open versus closed head injuries and the type of closed head injuries including acceleration/deceleration injuries, direct blows, compression injuries, rotational injuries and anoxia. Point out to the jurors that these concepts are not so foreign and that they are already aware of some of the causes and symptoms of mild traumatic brain injury through their knowledge of the need to use seat belts and helmets, doctors precautions when they suffer a blow to the head, the concept of shaken baby syndrome, boxer's dementia and other examples of trauma to the brain that they are aware of. Point out to the jurors that just because it goes undiagnosed or undetected for a period of time does not mean that it does not exist. We all know that medical science and technology do not necessarily pick up all mental disorders, learning disabilities or other organically based brain deficits. In reinforcing the validity of the injury, describe to the jury the signs associated with brain injury, including the physical, cognitive, personality, social and emotional changes and show how the plaintiff suffered these classic symptoms. Explain to the jury the validity and value of neuropsychological testing as a reliable method to determine brain injury. Describe for the jury the effects on functioning that even a "mild" brain injury can have, and how the jurors know that even when they have a minor interference with their ability to think clearly that can have a dramatic impact on functioning.

Direct Examination of Plaintiff's Experts
Plaintiff's experts, particularly the treating neurologist, intern, physiatrist and/or neuropsychologist will play a critical role in presenting the case and persuading the jury. In addition to the medical experts, there may be accident reconstructionists, biomechanical engineers, vocational experts, life care planners, and economists, just to name a few. It is important that these experts be properly prepared and that their examination and presentation be persuasive. The typical examination of a treating/testifying medical expert in a traumatic brain injury case might follow the following format:

I. Background and Training

Current position/specialty
Define specialty
Education and training
Medical licensure
Board Certification (explain)
Related professional experience
Teaching (academic) appointments
Membership in professional organizations
Publications
II. Familiarity with TBI
Particularized training and experience with TBI
Current population he treats
III. Background on TBI
Describe anatomy of brain
Describe function of brain
Describe mechanisms of closed head injury
Describe concussion/categories of TBI
Describe neuropsychology
Describe reliance on neuropsychology to detect TBI
Describe cardinal symptoms of TBI
Describe consequences of TBI on person's functioning
Describe treatment.
IV. Knowledge of the plaintiff
Nature of treatment/evaluations
V. History VI. Records of other providers reviewed for evaluation and testimony
1. Highlight significant findings
VII. Opinion re: diagnosis
Opinion
Basis - explain why other conditions excluded (depression, etc.)
VIII. Opinion re: causation
Opinion whether brain injury causally related to the accident
Opinion whether symptoms/impairments causally related to brain injury
IX. Opinion re: disability
Describe deficits
Describe effect on work functioning
Opinion as to whether plaintiff's injuries disable him from work
X. Opinion re: prognosis
Whether impairments are likely to be permanent
Probable effect on plaintiff's ability to work
Probable effect on other areas of life
Recommended future medical treatment (and likely outcome).
Some general rules should be followed when examining the expert on direct. First, the examination must be understandable to the jury. It should be kept simple and as concise as possible. The expert must understand that, unless he is able to communicate his information to inexperienced and often unsophisticated jurors, it is wasted. Use a medical terminology chart. The expert should make liberal use of demonstrative evidence to illustrate his testimony with photos, drawings, x-rays, anatomical models, charts or anything else that will make the injury understandable. Make sure that you meet at length with the expert in advance of his testimony to develop a rapport and to work with him to make his testimony understandable to the jury. He should be fully informed so as to anticipate and address the opposing parties' medical expert's opinions. He must be prepared for cross-examination, be comfortable with you in what he can expect and understand such things as the difference between "reasonable medical certainty" and scientific certainty.
Cross-examination of defense medical experts. The purpose of cross-examination is to obtain concessions bolstering your case and to discredit testimony harmful to your case. A good cross-examination at trial depends on good pre-trial preparation. Expert interrogatories must be propounded under Mass. R.Civ.P. 26 (b)(4). In addition, an investigation of the expert's prior writings and testimony should be undertaken. The expert's prior writings may be obtained at a medical library. There are various avenues of obtaining an expert's prior testimony (such as other attorneys, MATA, ATLA, etc.).

In addition, it is important to have a working knowledge of the medicine and literature regarding traumatic brain injury.

The first area for cross examination is to obtain concessions. Get the expert to acknowledge as many positive points in your case as possible. For example, the doctor may have difficulty disagreeing with much of the information contained in your client's medical records and will have to acknowledge these positive points contained in the medical record. Most experts would concede that just because the symptoms are subjective, they can nonetheless be very real, and that subjective complaints in the patient's history are relied on all of the time in prescribing treatment, making diagnoses, even without positive objective proof of an injury, and that the expert has no reason to disbelieve certain findings made by the plaintiff's treating doctors, etc. The doctor may concede the validity of neuropsychology to determine traumatic brain injury and the scientific community's reliance on neuropsychological findings, and that he works with neuropsychologists in his own practice. He may concede that in determining causation, the plaintiff's history of symptoms and their relationship to the traumatic event is important, that the plaintiff is not malingering but desires to get better and return to work, that plaintiff's symptoms are involuntary, that one can sustain a concussion without loss of consciousness, that plaintiff could have a post- concussion syndrome even with normal neurological examination and normal neuroradiological findings, that plaintiff's symptoms are consistent with post- concussion syndrome, that plaintiff's symptoms are consistent with the neuropsychological test results, the testimony of before/after witnesses and the plaintiff's own dysfunction, that depression is not an appropriate diagnosis and does not explain all of plaintiff's symptoms and that plaintiff's symptoms do not meet the DSM IV criteria for depression. Further, the expert will acknowledge many of the mechanics of concussion, the anatomy and vulnerability of the brain to trauma, the mechanisms of injury in an acceleration/deceleration injury, the validity of diffuse axonal injury, that the traumatic event may have been sufficient to cause a concussion, that even if some of plaintiff's symptoms were alleged to be preexisting, the traumatic event played a prominent role in causing or contributing to plaintiff's symptoms, that because of the duration of these symptoms they are likely to be permanent and that these symptoms interfere with and impair plaintiff's ability to function, and that plaintiff did not report these symptoms prior to the collision and that there is nothing in plaintiff's history to suggest that symptoms were pre-existing. These are just some of the areas where concessions can be obtained.

After positive concessions are obtained, the expert may then be cross-examined with the goal of discrediting those areas in dispute. The expert's qualifications may be addressed, including his or her lack of certification or specialty in a particular area, lack of clinical, professional and educational training etc. Often the defense expert will have a lack of knowledge and experience with persons with traumatic brain injury, particularly mild TBI. They lack education and training in TBI and are not familiar with the prevailing books, articles, and literature written on TBI and post-concussion syndrome. The expert may also be impeached for any bias or interest. Typically defense experts may have a long association with defense counsel. Most defense experts are hired for the sole purpose of giving an opinion to defense counsel in connection with a particular litigation. This should be emphasized and pointed out on cross- examination (and compared to the plaintiff doctors treating status). Show that providing expert testimony on behalf of this particular defense counsel, or for defendants in general, constitutes a significant part of the doctor's practice. Emphasize that he never treated the plaintiff and, perhaps, never saw him or her or saw him or her once on an isolated occasion. Point out the expert's financial interest in this case and in testifying on behalf of defendants generally.

After these "collateral" attacks, the particular opinion or opinions in dispute may be addressed. Often the defense expert will have inadequate understanding of the case and is not adequately prepared. Because he or she has not generally treated the plaintiff, but only seen the plaintiff on an isolated occasion, the expert is personally unable to comment on the plaintiff's condition either prior or subsequent to this isolated visit, and will have no first hand knowledge concerning the vast majority of plaintiff's course of treatment. It may be that the expert has not reviewed all of the medical records or seen actual x- rays or other diagnostic test results. In addition, often the medical expert will have no acquaintance or familiarity with the accident, the severity of the impact or trauma, or the mechanics of the accident, all of which are important factors in determining whether, and the extent to which, the plaintiff was injured. In rendering opinions on disability, the doctor may have little or no knowledge of the plaintiff's job requirements, or the demands to which the plaintiff is exposed at work. Often the defense expert will have spent considerably more time conferring with defense counsel than examining either the plaintiff or his or her records. All of these areas are fertile ground for cross-examination.

In addition, the basis of the expert's opinion can be discredited. Often the expert may have selected certain facts to rely on and discredited or ignored certain other facts, not necessarily based on some expert judgment; but rather on his or her personal predilection or personal assessment of the plaintiff's credibility. Such judgments should be exposed for what they are. The expert may concede that, if he had not discredited or discarded certain facts, his opinion, in fact, would have been the same as plaintiff's expert. Hypothetical questions can be utilized in this fashion to illustrate that the expert would have had an entirely different opinion had he not discarded or discredited certain facts present in the case.

Finally, the expert may be impeached by prior inconsistent statements made by him or her, either in writings in this particular case (such as a prior written report), in prior testimony given in the case (depositions) and prior publications addressing the general topic area. In addition, the witness may have given testimony in other proceedings inconsistent with his current testimony on the topic. Finally, in Massachusetts, an expert can be impeached with a learned treatise.

Effectively demonstrating the impact of plaintiff's injuries
Generally expert medical testimony will always be necessary to establish the diagnosis, causation, disability and prognosis. The medical expert will be the starting point for conveying to the jury exactly what injuries the plaintiff has suffered as a result of the accident. The symptoms that the plaintiff has and will endure as a result of these injuries, the extent to which these symptoms will interfere with plaintiff's ability to work and the pain and suffering, both mental and physical that the plaintiff has and will continue to endure as a result of his injuries, can all be addressed by your medical expert. In addition to the expert's testimony in this area, a report addressing these issues, which can be taken by the jury into the jury room as an exhibit, should be introduced, pursuant to Mass.G.L.c. 233, 79G.

In order to convey to the jury the impact that this accident has had on the plaintiff, you as the plaintiff's attorney must have intimate knowledge of the plaintiff before and after the accident. You should know the plaintiff's educational, vocational, familial and employment background, and the impact that the injury has had on each of these areas. You should be armed with anecdotal experiences that can be conveyed to the jury which illustrate in human terms the impact which this injury has had on the plaintiff's everyday functioning.

Jurors do not like "whiners" and inevitably there is the risk that, no matter how genuine the plaintiff's injuries, when the plaintiff himself or herself describes these injuries and their impact on the plaintiff's life, the plaintiff comes off as a "whiner" and will not gain the jury's sympathy. It is therefore generally more effective to have other witnesses, so called "before/after witnesses", including the plaintiff's family, co-workers, and physicians testify to the impact which this injury has had on the plaintiff's functioning. Again, this can be done through anecdotes, which convey to the jury the humiliation and embarrassment as well as cognitive and physical limitations that the plaintiff has had to endure.

In establishing damages, demonstrative evidence should be used liberally, chalks, photos, x-rays, anatomical models, day in the life films and other visual aids should all be considered.

Remind the client to prepare a daily diary of medical treatment, pain and disability so that when it comes time to convey this information to the jury, it can be reconstructed. A calendar with overlays can often be used a demonstrative aid chronicling the plaintiff's course of treatment.

Consider preparing a symptom list which is merely a chalk listing plaintiff's symptoms. It can be divided into physical, cognitive, and personality/social problems.

Argument
The argument needs to pull together all that the jury has learned about the plaintiff and the plaintiff's injuries into a compelling, understandable summation. It will focus on the themes developed with the opening and built on with the treating physicians and therapists and neuropsychologist, the before/after witnesses, the plaintiff, vocational experts, life care planners, and economists. It will emphasize that even a "mild" brain injury can have severe impact on a person's functioning. There are many analogies that can illustrate this point, such as the rudder or compass that is one degree off, the typewriter with one broken key, the computer with a minor flaw in its software, which all have a dramatic impact on final functioning. The jury needs to be reminded of the evidence that shows that there can be a brain injury even though there is no direct blow to the head or even with no loss of consciousness and the inability of neurological and neuroradiological tests to detect this injury. The concept of diffuse axonal injury can be reinforced using various analogies. Focus on the plaintiff's functioning prior to the accident and his/her inability or difficulty with functioning after the accident. Point out the consistency in plaintiff's evidence, the medical evidence, the neuropsychological evidence, plaintiff's symptoms, what is known about traumatic brain injury and post-concussion syndrome and their impact on functioning. Argue the consistency of the brain injury with the other evidence of trauma to plaintiff's neck, back and other physical injuries. Argue the consistency of all of the evidence to show frontal lobe or temporal lobe damage in the areas of functioning that they control, i.e. judgment and behavior. Emphasize each element of damages that the jurors are entitled to consider, namely past medical expenses, future medical costs, lost earnings, impaired future earning capacity and non-economic losses, including physical and mental pain, discomfort, suffering, emotional distress, fear and change in life and effect on the pursuit of happiness. Discuss the permanency of these injuries and plaintiff's future life expectancy and the importance we place financially on human life and functioning. Again, personalize the plaintiff.

David P. Dwork, Esq. (dpd@barronstad.com)

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