Brain Injury Lawyer

On January 22, 2007 I represented a resident of Trenton, New Jersey who was a passenger in a car which was hit head on by a dump truck while traveling on State Highway 68. The dump truck that hit her was unable to stop and attempted to avoid colliding with another vehicle by entering the northbound lane. While the driver was able to avoid one accident, he was unable to avoid striking the vehicle our plaintiff was in.

As a result of the accident she sustained a traumatic brain injury, multiple fractures of her left shoulder and arm, and fractures to her right leg. My client also suffered numerous process fractures of the lumbar spine and multiple rib fractures. The case went to mediation and settled for $3.5 million. 
 

The much-awaited New Hampshire Supreme Court decision in Baxter v. Temple was handed down yesterday as a unanimous New Hampshire Supreme Court ruled that the trial court committed error in striking the testimony of a neuropsychologist who utilized the Boston Process Approach (BPA) in evaluating a plaintiff.

Readers of this blog will recall, that the trial court found that plaintiff’s neuropsychologist, Dr. Bruno-Golden used the BPA in evaluating the plaintiff. The trial court found that this approach used by Dr. Bruno-Golden, while generally accepted in the appropriate scientific literature as a sound clinical approach to evaluating injuries for brain injury, failed to show that it was “generally accepted in the making of a forensic assessment.” Thus, the trial court found that the plaintiff had not shown that the methodology was generally accepted in the appropriate scientific literature as reliable in a legal proceeding. In reaching its conclusion, the trial court focused on the plaintiff’s failure to demonstrate that the specific battery - the entire series of tests viewed as a whole - employed by plaintiff’s neuropsychologist was or could be tested, or subject to peer review and publication or as a known or potential rate of error.

The New Hampshire Supreme Court, utilizing the standards set forth by the United States Supreme Court in Daubert, rejected the trial court’s determination. The Court held that there does not exist a different standard for testing in the forensic setting as opposed to the clinical setting.

The Court noted that the BPA is a variation of the flexible battery approach that adds “a qualitative element to evaluating brain function.” The Court opinion, 22 pages in length, discusses in great detail why the flexible battery approach is admissible under the Daubert standard. The Court, in soundly rejecting defendant’s contention (defendant’s expert was David Faust, Ph.D.) that in order for a “battery” to be admissible in a forensic setting, all of the tests needed to be evaluated as an entire battery in order to determine known error rates, reasoned:

“To conclude otherwise would require the field of neuropsychology to test, peer review, and calculate error rates for an infinite number of test combinations for the interpretations to be reliable. Each time a new validated and reliable test or battery of tests such as the NPSY is developed or even updated, a clinical examiner could not use it as part of a comprehensive battery since it would be unknown how it interacted with the other tests within that battery. Since the flexible battery approach is the generally accepted approach to conducting neuropsychological assessments, the APA standards could not logically mandate that a neuropsychologist always use a comprehensive test battery that is validated as a whole.”

The New Hampshire Supreme Court also found that the evidence in the record indicated that the BPA as a flexible battery approach could be tested. It stated that while the BPA itself does not have a known or potential error rate, this was not critical to its admissibility. In its opinion, the Supreme Court concluded:

“Accordingly, we find that, when the BPA is administered in a manner consistent with the flexible battery approach, as described above, it is generally a reliable approach to neuropsychological assessment and is thus a reliable methodology for determining a person’s cognitive status.”

For those forensic neuropsychologists from the Reitan school which have consistently attacked the admissibility of the flexible battery approach, this decision stands as a monumental defeat.

On a side note, I was surprised but honored to see that my paper, The Admissibility of Neuropsychological Testimony After Daubert and Kumho, was cited as authority.

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).

Osborne v. Budd

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.