Brain Injury Lawyer

Last week, the New Jersey Appellate Division issued a decision rejecting a defense attack on the objectivity of neuropsychological testing.  The Court held, that the defendant’s argument was totally without merit. 

On Monday I argued an extremely interesting issue before the Superior Court of New Jersey-Appellate Division.  One of the issues on appeal was whether or not neuropsychological testing is objective as defined by New Jersey’s verbal threshold law.

In New Jersey, in order for an injured person, who selected the limitation of lawsuit threshold on their automobile insurance policy, to recover damages for non-economic damages, that person must show that he/shesustained a permanent injury based upon objective medical testing.  That diagnosis must then be certified as permanent by a treating doctor. 

Under New Jersey’s threshold requirement, the objective proof of injury necessary to succeed cannot be dependent entirely upon subjective patient response.  Defense counsel argued that since neuropsychological testing requires the input of the patient, it does not meet the statutory definition. 

On behalf of the injured plaintiff, I asserted that neuropsychological testing is objective as defined by the statute.  In support of that, I introduced and presented statements from various medical literature as well as pointing out that defendant’s own neuropsychologist conceded that the testing was not based solely upon the patient’s subjective responses.

I trust we will get the court’s decision within the next six months.

Researchers at the Center for Injury Research and Policy at Nationwide Children's Hospital recently reported on a new study, which indicates that bicycle-related injuries in children and young adults in America may be more of a concern than originally thought. The study was reported in the October issue of Injury Prevention and states that bicycle-related injuries among children and adolescents result in nearly $200 million in hospital charges each year.

This study is the first of its kind to analyze patient and injury characteristics associated with bicycling injuries utilizing a nationally representative sample. This study, and others similar studies previously recorded, only encourage the need for children to use caution as a way to prevent this number from rising. Bicycle helmets are always encouraged, however, more and more I feel they should be a necessity. Bicycle laws are a great way to implement safe practices and educate children on the importance of safety at a young age.

You can read more on this new report here.

I recently argued a case in which a 14-year old boy will receive $1.6 million for his injuries suffered to his head and pelvis when he was struck by a school van at the age of 20 months. You can read the full article which was published in the New Jersey Law Journal here.

On August 28, 2007, I was pleased to settle a case for a now 15-year old child that was injured at the age of 20 months when he was struck by a vehicle and knocked to the ground, thus ensuring that the child will have funding to assist him for the foreseeable future.

On June 11, 1994, J.M. was 20 months old when he was injured.  He suffered a fractured skull as well as an avulsion pelvic fracture.  He was hospitalized for five days and then released to be followed by his pediatrician.  Three weeks before the collision, the pediatrician, concerned about the fact that the child had not yet begun to speak, had referred the child to a specialized hospital to be evaluated.  That testing was not conducted until after the incident making the causal link between the deficits then detected and the collision.

Defendant asserted that although responsible for the fractured skull, that the child was born with the cognitive deficits and that he was not responsible for these problems.  Because of the child’s young age, the filing of a lawsuit was intentionally delayed so that I would be able to fully appreciate and discern the deficits that would ultimately develop as the child got older.  Because of the preexisting issue, I retained nationally renowned experts including Gregory O’Shanick, M.D., a Board certified neuropsychiatrist and medical director of the Brain Injury Association of America; Monte Buchsbaum, M.D., Director of the Positron Emission Tomography Laboratory (PET) at Mount Sinai Medical Center; Charles Bean, M.D., a Board certified pediatric neurologist; Ron Savage, Ed.D., a leading education expert; Robert Voogt, Ph.D., a current Chairman of the North America Brain Injury Society and a leading life care planner; Anthony Gamboa, Ph.D., M.B.A., a nationally renowned vocational economic expert and Barbara Fisher, Ph.D., a pediatric neuropsychologist.

I am pleased to announce that I was able to settle the case for this deserving child in the amount of $1.6 million.

The California Supreme Court held that operators of roller coasters and other amusement park rides must be held to the same safety standards that apply to buses, planes and other modes of transportation.

In 2000, Cristina Moreno suffered a brain aneurysm as a result of "violent shaking and stress" she experienced while riding an Indiana Jones attraction at Disneyland. Ms. Moreno, a Spanish citizen, was at the park on her honeymoon.

This case is timely in relation to the recent news of a 4-year-old boy's death last week at Epcot center in Florida. In that case, the young child was riding Mission:Space which recreates a rocket launch and a trip to Mars.

You can access the California Supreme Court decision here (PDF).

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.

Following up on an eralier post, last week, the New Jersey Supreme Court affirmed an Appellate Division's decision that will have defense attorneys thinking twice before they allege that the plaintiff is faking their injury.

The issue before the Court was when a defendant who presents expert testimony that a defendant is "faking" symptoms of a serious brain injury, does this constitute an attack on his character, and if so, can the plaintiff then rebut this testimony with evidence addressing his character for truthfulness.

This question came from a case in which John G. Ostrowski who was injured in 1997 when a truck he was driving was hit in the rear by a bus, causing his head to slam into the windshield. The defendants (Ted M. Lively - Driver, and Cape Transit Corp - Employer) conceded liability and the matter was tried before a jury solely on the issue of damages.

Prior to the accident, Mr. Ostrowski had been a lead saxophone player with the Avalon String Band, which marches in Philadelphia's New Years' Day Mummers Parade.

During trial, the defense presented medical witnesses which testified that Mr. Ostrowski suffered merely a mild concussion and was still able to enjoy the activities that he had before the accident. In light of this testimony, the defense focused chiefly on Mr. Ostrowski's truthfulness. Other defense experts also claimed that Mr. Ostrowski was deliberately doing poorly on his neurological exams. In attacking Ostrowski's credibility, the defendants also relied on his statement at deposition that he had not continued to march in the band after the accident as well as Ostrowski's failure to disclose to his treating doctors that he had been treated for depression for four years following a 1989 accident that also resulted in litigation.

Mr. Ostrowski presented both medical experts and presented lay witnesses to support his brain-injury claim. Specifically that the injury had an adverse affect on his ability to engage in his former activities.

The jury found in favor of Mr. Ostrowski and awarded him $3 million in damages. The defendants appealed to the Appellate Division, contending that by allowing Ostrowski to present in his case with an array of witnesses who testified concerning their opinion of his character for truthfulness and honesty, the trial court committed harmful error because Ostrowski failed to establish the requisite foundation for admission of this evidence. In addition, defendants argued that the evidence was so prejudicial that a new trial was required. The Appellate Division disagreed, affirming the decision of the trial court.

The Appellate Division noted that the defense presented its claim that Mr. Ostrowski lied in his deposition and implied that he fraudulently benefited from an earlier lawsuit. The Court accepted the opinions of the defense experts who believed that Mr. Ostrowski was faking his symptoms, and as such felt that Mr. Ostrowski was entitled to rebut by opinion and reputation evidence attesting to his character for truthfulness.

The Supreme Court granted certification and affirmed the Appellate Division's decision.

Matthew Lerner has an interesting post over at his New York Civil Law Blog about a brain injury/workers' compensation case being argued in New York.

The Court of Appeals will hear oral arguments next week -- October 12, 2004 -- concerning the interpretation of what constitutes "an acquired injury to the brain caused by an external physical force resulting in permanent total disability" as provided in Workers' Compensation Law Section 11.

You can read Matt's post here.