Brain Injury Lawyer

This week's New Jersey Law Journal's Suits & Deals section mentions a case which I recently settled for a client.

On April 30, 1998 defendant Brenda Budd was traveling on Route 206 when she suddenly crossed lanes striking my client Gail Osborne's vehicle. Ms. Osborne was taken to the emergency room, complaining of neck pain and released shortly that day. Over the next week, she began to experience problems with attention and concentration as well as balance. A CT scan taken shortly after the collision was normal. She was ultimately referred to Kessler Institute for Rehabilitation where she underwent neuropsychological testing and was diagnosed as having sustained a mild traumatic brain injury.

Following her discharge from the Kessler program, Ms. Osborne remained under the care of various specialists including a neuro-optometrist, neuro-otologist and neuropsychiatrist. The Social Security Administration found her to be totally disabled as a result of her injuries.

The defendant, Brenda Budd, and her attorney initially asserted that the collision occurred due to a defect in her vehicle's axle. However, her insurance carrier, Liberty Mutual, got rid of the car prior to litigation so no testing could be done. Our lawsuit was instituted against Ms. Budd and a count for spoliation and punitive damages were asserted.

Trial was first commenced in the summer 2003. However, a mistrial was declared after plaintiff's opening statement due to references to my client's Social Security award. The case was next scheduled for trial in October 2003. After a three-week trial with the jury apparently hung, a second mistrial was declared when one of the deliberating jurors advised that she could not return for further deliberations.

The case was called for trial again on June 1, 2005 and after two days of negotiations I was able to settle the matter for $975,000.00.

Does N.J have a claim for destruction of evidence? It would appear that she also had a spoiliation of evidence claim against Liberty Mutual

Thank you for your recent question regarding spoliation in the Osborne case, inquiring whether I considered filing a spoliation claim. In fact, I did assert a claim for spoliation and included a demand for punitive damages.

In New Jersey, the leading cases are Hirsch v. General Motors Corp., 266 N.J. Super. 222 (Law Div. 1993) and Manorcare Health v. Osmose Wood, 336 N.J. Super 218, 236-237 (App. Div. 2001).

In the Hirsch case, the Court held that there is a duty to preserve evidence apart from any Court Order. In the Manorcare case, the New Jersey Appellate Division precluded a spoliating party from introducing any evidence that the adverse party could not challenge because of the spoliation. When that preclusion is an adequate remedy, the spoliating party’s cause of action need not be dismissed. The Manorcare Court also stated that an instruction requiring an adverse inference would be insufficient to cure the prejudice to the adverse party. See 4:23-2 of the New Jersey Rules Governing the Courts. The reader is also directed to the 2006 Edition “Rules Governing the Courts of the State of New Jersey” with comments and annotations by Sylvia B. Pressler at page 1369. The New Jersey Court Rules can be purchased from Gann Law Books in Newark, New Jersey.

THE INS CARRIER TERMINATES THE BENEFITS OF THE INSURED SHORTLY AFTER AN ACCIDENT WHERE THE INSURED IS SUFFERING FROM POST CONCUSSED SYNDROME. WHEN DOES A PERSON HAVE THE RIGHT TO FILE PIP ARBITRATION?

John, Your email does not list what state you are from. In New Jersey you can demand arbitration once the carrier denies benefits. You will have to check with the statute or policy in your state.

Bruce Stern