New York Court Again Rejects Defendant’s Motion to Bar DTI Evidence

Posted in Brain Injury Legal Cases, Brain Injury Legislation

A recent decision by the Supreme Court – State of New York, Nassau County, Part 40 rejected a motion by defendants to preclude the plaintiffs from presenting evidence regarding diffusion tensor imaging in support of their claim that the infant plaintiff suffered a traumatic brain injury as a result of a traumatic incident.  Sullivan v. Walters, Index number 6110-2005, Supreme Court-State of New York, Nassau County, Part 40.

There, defendants moved pursuant to Frye v. United States, 293 F. 1013 (1923) to bar the admissibility of plaintiffs’ expert Michael Lipton, M.D., Ph.D., asserting that the use of DTI violated the Frye standard.

In support of their motion, defendants submitted the affidavit of Dr. A. John Tsouris who is a board certified staff neuro radiologist and director of neurological MR imaging at New York Presbyterian Hospital-Weill Cornell Medical Center, and an associate professor of radiology.  Dr. Tsouri has co-authored two articles on DTI and is presently researching the possibility of utilizing DTI to establish mild traumatic brain injury in professional football players and patients suffering from MS, ALS, and brain neuoplasm as part of a collaborative study by the Hospital for Special Surgery and Weill-Cornell Medical Center’s Department of Neurology.  Dr. Tsouris affirmed that “research to date has shown that there is a significant overlap between FA values of individuals with traumatic brain injury and FA values in persons with no history of traumatic brain injury.”  Dr. Tsouris was also of the opinion that while DTI could be used if at all in a group study that individual results were meaningless unless compared to a control group.

Plaintiffs’ expert, Dr. Lipton, explained “MRIs are insensitive to white matter in the brain and so people who have sustained a closed head injury often have normal MRI results despite damage to white matter in their brains.  DTI is far more sensitive than MRI in that it measures the direction of extremely small-scale movement a/k/a diffusion of water molecules within tissue.  It was Dr. Lipton’s opinion that plaintiff’s quantitative analysis of FA images from the MRI/DTI study demonstrated multiple foci of significant low anisotropy consistent with traumatic axonal injury.  Dr. Lipton also explained that DTI does not and cannot, on its own, diagnose mild traumatic brain injury, but that it must be correlated with history and other clinical data to either substantiate or refute the diagnosis.

Plaintiff presented numerous medical literature and other publications which supported the use of DTI in establishing a traumatic brain injury as well as numerous Orders in which DTI has been admitted into evidence.

Defendants also asserted that Dr. Lipton’s failure to provide the computer programs and foundational data basis should also result in Dr. Lipton being barred.  The Court noted that these programs where the proprietary property of Montefiore Medical Center and Albert Einstein College of Medicine, which were not a party to the action nor had relief against them been sought.  More importantly, the Court noted that the information was confidential under HIPAA and the Court denied that portion of the motion as well.

Stern Gives Seminars on Both Coasts and Canada

Posted in About Brain Injuries, Brain Injury Events, Personal Injury Claims

It has been a very busy past two and a half weeks as I have given presentations on both coasts of the United States as well as Nova Scotia, Canada.  In late October,  I was invited by the Workers Injury Law and Advocacy Group to speak at their yearly convention in Santa Barbara, California.  There, along with my colleague Gordon Johnson, we gave a mock demonstration of a direct examination of a neurologist in a traumatic brain injury. A week later, I flew back to California to give a presentation entitled “Admissibility of Diffusion Tensor Imaging (DTI)” for the Brain Injury Association of California.

Back in New Jersey, I co-chaired a program entitled “Cross Examination College” at the New Jersey Association for Justice’s mid‑year convention at the Meadowlands in East Rutherford, New Jersey.  Besides co-chairing the college, I also gave a presentation on cross examination of the expert in a traumatic brain injury case. Finally, I was invited to speak at the Atlantic Province Trial Lawyers Association’s seminar in Halifax, Nova Scotia, Canada.  There, I gave two presentations , one entitled “The Effect of Disability on Earning Capacity for Canadians”  as well as a presentation on “The Use of Demonstrative Evidence.

While travelling can be quite tiring and travelling back and forth to the west coast is exhausting, I believe it is important to help educate other trial attorneys so they can better be able to represent their clients who sustained injury as a result of the fault of others.

New York Court Upholds Use of Diffusion Tensor Imaging in Litigation

Posted in Brain Injury Events, Brain Injury Legislation, Brain Injury News

I was recently sent two Orders from the State of New York in which defendant’s motion to bar the introduction of diffusion tensor imaging was denied.  Here is a discussion of the first case with the second to follow.

In the matter of Girgs v. Snapple Distribution Corp., Civil Court of the City of New York, County of Queens Part 30 the defendant moved to preclude the testimony of plaintiff’s medical expert, Michael Lipton, M.D., Ph.D. regarding his assessment of a traumatic brain injury based upon his analysis.  The basis of the motion was due to the plaintiff’s “alleged failure to comply with prior discovery orders wherein defendant sought to obtain various records, data, and information relied upon to reach the results in his report.  Defendant asserted that Dr. Lipton was unavailable and would always be unavailable to turnover his data as it is based on a comparison to individuals who did not waive their privilege under HIPAA.  Plaintiff asserted that discovery had been turned over.

According to the Order, Dr. Lipton performed an MRI of the plaintiff’s brain with results which were interpreted as being “unremarkable.”  Dr. Lipton also reviewed the plaintiff’s MRI with diffusion tensor imaging at which time he performed a quantitative analysis of the fractional anisotropy (“FA”) images from the DTI portion of the examination.  Dr. Lipton opined that this analysis revealed that plaintiff had multiple abnormalities consistent with axonal injury due to traumatic brain injury.

In response, defendant demanded discovery of all data, films, and information on which Dr. Lipton based his findings.  Defendant filed a motion to compel such discovery which was granted to the extent plaintiff was to provide all FA images using DTI, and any and all control values, including but not limited to films and images of the control group relied upon by Dr. Lipton and any other DTI imaging and films.  According to that Order, if plaintiff did not provide the requested information, plaintiff would be precluded from offering trial evidence and testimony from Dr. Lipton regarding the items not produced.

That early order was modified to the extent that defendant was given leave to subpoena the “computer programs and foundational data bases from Montefiore Medical Center and Albert Einstein College of Medicine.”  That early order was again modified to the extent that defendant was to serve a subpoena on Montefiore Medical Center requesting the data/information used for the comparative analysis by Dr. Lipton.

In response to that order, plaintiff turned over to defendant the DTI demographical data and quantitative analysis compiled by Dr. Lipton.  This information contained a number of participants in the control group, age, gender, and FA numbers.

In this most recent decision, the Court found that “since the images comprising the normal data base contained personal identifying information, as well as protected HIPAA information of parties not part of the lawsuit, who had not given consent, there is no legal basis to turnover this information.”  Furthermore, in that defendant’s “expert” Dr. Panasci, M.D. did not allege that he had any expertise in the quantitative analysis of DTI, the Court found that this information was not necessary for his analysis.  Accordingly, defendant’s motion to preclude the testimony of Dr. Lipton was denied.

Defendant then asserted that Dr. Lipton’s testimony should be precluded on the basis that the determinations in his report were not based on the “generally accepted standard” as set forth under Frye. The Court rejected this argument as well finding that the “data and methods relied upon by Dr. Lipton to quantitatively analyze plaintiff’s DTI images had been peer review endorsed by scientific publications including Radiology, Journal of Neuro Trauma, PLOS ONE, and Brain Imaging and Behavior. 

The Court stated: Moreover, to follow the defendant’s argument to its logical conclusion, would lead to an illogical result.  If the Court adopted defendant’s argument, there would not be any introduction of a great deal of generally accepted medical research since this privilege HIPAA information can never be turned over without consent.  Limitations of this type would be a waste of helpful resources and counterproductive to the administration of justice. Thus, defendant’s motion to preclude the testimony of Dr. Lipton based on Frye was denied.

Psychological Assessment of Symptom and Performance Validity, Response Bias, and Malingering

Posted in About Brain Injuries, Brain Injury Legal Cases, Brain Injury Legislation, Brain Injury News, Brain Injury Resources & Links

The Association for Scientific Advancement in Psychological Injury in the Law has published an official position regarding psychological assessment of symptom and performance validity, response bias, and malingering. Psychol. Inj. And Law (214) 7:197-205.  Bush, SS, Heilbronner and Ruff RM.  According to the abstract, the “purpose of this position statement is to promote ethical psychological practice in legal context by reviewing validity assessment issues and their ethical foundations.”  The authors find the position statement necessary as “no previously published document focuses specifically on symptom, performance, and response validity assessment that is pertinent for all psychological evaluation performed in forensic context.”

The authors make the following recommendations: Recommendations for Forensic Practitioners

1. Strive to be familiar and practice consistent with relevant practice, ethical, and legal/legislative requirements pertaining to validity assessment, including the present statement and extant position statements (e.g., Bush et al. 2005a, 2005b; Heilbronner et al., 2009).

2. Only validity measures having appropriate psychometric properties are used, selected based on the characteristics of the examinee and the circumstance(s) for which the examinee is referred.

3. List all validity measures and psychometric indicators used but avoid describing them in detail.

4. Interpretations of the results of assessment measures are based on consideration of all the relevant reliable assessment data, and then considered with the full data set (e.g., from examinee interview, collateral sources, records). These other data sets might contain substantial inconsistencies or discrepancies. The conclusions that best fit the full data set are offered in opinions and testimony, independent of the desires of the referral source.

5. Be wary of inferring motivation, volition, intention, and consciousness when there is insufficient evidence. However, do not avoid making such judgments when sufficient evidence is available. Consistently using preferred inferences, such as feigning or a “cry for help,” can be unhelpful or misleading in individual cases unless the evidence overwhelmingly supports such a conclusion.

6. Use of validity measures and indicators is maximized when practitioners understand the various items and definitions, and how to resolve inconsistencies therein in their conclusions. Understanding inconsistencies within and across relevant ethics codes, professional guidelines, practice regulations, legal/legislative frameworks, and position statements, enables practitioners to address them effectively in court.

7. Repeatedly check for biases and incentives in one’s own practices and conclusions. Internal or external influences that detract from an unbiased approach to evaluations need to be considered and countered. It is the forensic practitioner’s responsibility to guard against biases and strive to maintain a balanced perspective.


Banyan Biomarkers Inc. Licenses Protein Markers to Help Evaluate Traumatic Brain Injury

Posted in Brain Injury News

It is well understood that CT and MRI are often insensitive in the detection of mild to moderate traumatic brain injury. By the time a patient is seen in the emergency room, acute neurological abnormal findings may also be absent. Thus, to date, it is often difficult for physicians to diagnose that an individual has sustained a mild to moderate traumatic brain injury. As a result, patients are often released from the emergency room with instructions to follow up with their family physicians should they begin to develop symptoms consistent with a mild to moderate traumatic brain injury.

Recently, Banyan Biomarkers, Inc. has been working on a blood test that could be used by physicians to directly detect the presence of mild and moderate traumatic brain injury and improve the medical management of brain injured patients. By assessing protein biomarkers, Banyan Biomarkers believes that physicians will be able to objectively test to evaluate patients who may have suffered a concussion. Most recently, Banyan Biomarkers has licensed its intellectual property related to traumatic brain injury biomarkers to Abbot for assessment and verification.

The Banyan Biomarkers’ press release can be found by clicking here.

Impact Location and Concussion Outcomes in High School Football Players

Posted in Brain Injuries in Sports

A new study out of the University of Colorado-Denver found that regardless of the location of impact of high school football players who sustained a concussion, there was no difference in the outcome.  Researchers, noting that “little research has examined concussion outcomes in terms of impact location (i.e., the area on the head in which the impact occurred), utilized the National High Schools Sports-Related Injury Surveillance Study dated between 2008/2009-2012/2013 to calculate rates and describe circumstances of football concussion (e.g., symptomatology, symptom resolution time, return to play) resulting from player-to-player collisions by impact location.”

Not surprisingly, the researchers found that most concussions resulting from player-to player collisions occurred from front-of-the-head and side-of-the-head impacts.  While a larger proportion of football players who sustained concussions from the top-of-the-head impacts experienced loss of concussion than those suffering concussions in other locations of the head, concussions outcomes were generally independent of impact location. 

Dawn Comstock, the lead author of the study, was quoted as saying “we can’t predict which athletes are more likely to have more severe symptoms or worse outcomes based only on how their injuries occurred.  Every clinician needs to take every concussion very seriously.”  “What we can say is that these findings definitely support the call to take the head out of the game if you will.” If you or a loved one has suffered an injury, contact Stark & Stark today.

Shareholder, Bruce H. Stern, Esq. Elected Parliamentarian of American Association for Justice (AAJ)

Posted in Events

Stark & Stark would like to congratulate Accident and Personal Injury Shareholder Bruce Stern. Mr. Stern has been elected Parliamentarian of the American Association for Justice (AAJ) at the organization’s annual convention in Baltimore, Md. AAJ is the world’s largest trial bar, working to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others. Mr. Stern concentrates his practice in the area of traumatic brain and spinal cord injuries and wrongful death.

Stern Inducted into International Academy of Trial Attorneys

Posted in Brain Injury News

This past weekend I was honored to be inducted as a Fellow in the International Academy of Trial Lawyers at this year’s mid-year meeting in Manchester Village, Vermont. I was privileged to be introduced by my friend and colleague Kathleen Flynn Peterson, a past president of the American Association for Justice. 

The Academy is a group of truly elite trial lawyers representing both sides of the bar: prosecutors and defense lawyers in criminal cases, and plaintiffs’ and defense counsel in civil litigation, including business and personal injury cases. While the majority of Fellows come from the United States, the Academy includes lawyers from more than thirty countries. Fellowship is by invitation only, and the trial lawyers are invited to become Fellows only after an extremely careful vetting process. As to U.S. Fellows, the academy’s by-laws limit fellowship to 500 active trial lawyers.

Headache and Depression Following Mild Traumatic Brain Injury Is There a Relationship?

Posted in Brain Injury News

At the American Headache Society’s 56th Annual Scientific Meeting, Sylvia Lucas, M.D., Ph.D., a clinical professor of neurology and neurological surgery at the University of Washington Medical Center reported on her research looking at the correlation between headache and depression following mild traumatic brain injury. 

The study looked at 212 patients with mild traumatic brain injury at the University of Washington who sustained a mild traumatic brain injury. Participants had a mean age of 44 years and were mostly male (76%), white (75%), and had at least a high school education (83%). Their injuries primarily involved vehicle accidents (58%), followed by falls (24%), assaults (5%), and sports mishaps (3%). Researchers carried out baseline assessments during face-to-face interviews within 7 days of the injury. Follow-up interviews using a structured questionnaire were completed over the telephone at 3, 6, and 12 months post-injury.

The study found that a year after suffering mild traumatic brain injury, patients with headache were five times more likely to be depressed than patients with mild traumatic brain injury without headache and those who were depressed were more likely suffer headaches.

Click here to see the article published in Medscape Medical News, July 3, 2014.