Brain Injury Lawyer

The Indiana Supreme Court ruled this past week that a psychologist is qualified to testify on behalf of a plaintiff in a personal injury case as to the cause of a traumatic brain injury. 

Plaintiff was injured in a rear end collision, sustaining injuries to his neck and back. Plaintiff underwent a neuropsychological evaluation with Dr. Sheridan McCabe, a psychologist. The plaintiff had been experiencing headaches and memory loss since the accident, but had not been previously diagnosed with having sustained a brain injury. After reviewing the plaintiff’s medical records and his deposition, as well as interviewing the plaintiff and his wife, Dr. McCabe administered a battery of neuropsychological tests. Dr. McCabe opined thereafter that the plaintiff had “experienced a traumatic brain injury in the accident.” 

Three times during the litigation, defendant objected to Dr. McCabe testifying as an expert witness, each time challenging the admissibility of the psychologist’s testimony that plaintiff experienced a traumatic brain injury in the accident. After the jury returned a verdict in plaintiff’s favor, defendant appealed, contending that the trial court erred when it permitted the psychologist to testify that plaintiff had sustained a traumatic brain injury in the crash. On appeal, the Indiana Court of Appeals agreed, reversed, and remanded the case for a new trial. Bennett v. Richmond, 932 N.E. 2nd 704 (Ind. Ct. App. 2010), reh’g denied. The Indiana Supreme Court then granted transfer of the case. 

The Indiana Supreme Court acknowledged initially that “while there is little dispute that a psychologist may testify as to the existence of a brain injury, or the condition of the brain in general, the specific issue in the case was whether a psychologist or a neuropsychologist may testify as to the cause of a brain injury. “ The Court reviewed decisions from other jurisdictions, noting that the issue was one that had divided jurisdictions.

The Indiana Supreme Court, while disagreeing with the result reached by the Indiana Court of Appeals, agreed with the analysis that the Appellate Court took in deciding the issue.  The Supreme Court found the issue of whether a psychologist could testify had to be decided pursuant to Rule 702, which sets forth the criteria needed (knowledge, skill, experience, training, or education which would assist the trier of fact).   The Supreme Court noted that under Rule 702, there was no per se rule banning a psychologist from testifying as to the cause of an injury.

Defendant’s main objection was that Dr. McCabe, a psychologist, was not a “medical doctor” and therefore was not qualified to render an opinion as to causation.  The Court reviewed Dr. McCabe’s qualifications, as well as the methodology he used in reaching his conclusions that the accident was the cause of plaintiff’s brain injury.  The Court noted that Dr. McCabe had interviewed both the plaintiff and his wife, reviewed the plaintiff’s medical records, and deposition, and had conducted a series of tests.

The Indiana Supreme Court totally rejected the Court of Appeal’s conclusion that the psychologist was not qualified under Rule 702 in that in its ruling that “a psychologist who is not a medical doctor, but is otherwise qualified under Rule 702 to offer expert testimony as to the existence and evaluation of a brain injury is not qualified to offer his or her opinion as to its cause without demonstrating some medical expertise in determining etiology of brain injuries.”  Bennett, 932 N.E. 2nd at 709¬-10. 

In its decision, the Indiana Supreme Court noted, “we think that the Court of Appeal s imposed more stringent requirements on Dr. McCabe than are required under Rule 702.”  The Court found that Dr. McCabe had the requisite education, training, and knowledge to render the opinion and that his methodology was sound. 

Lastly, defendant argued that Dr. McCabe was not qualified to give the opinion as to causation because he was not a neuropsychologist, only a psychologist.  The Supreme Court found that although Dr. McCabe did not claim to be  a neuropsychologist, the Court noted that “even if we were to require under Rule 702 qualifications similar to those of a neuropsychologist to testify in this manner” that Dr. McCabe’s qualifications were sufficient to fall under the definition of a neuropsychologist.  The Court concluded by find that the trial court did not abuse its discretion in finding that Dr. McCabe was qualified to offer his opinion as the cause of plaintiff’s brain injury.

Finally, the Indiana Supreme Court rejected the Court of Appeals conclusion that even if Dr. McCabe were qualified to opine as to the cause of plaintiff’s brain injury,  his testimony lacked probative value because he did not testify regarding the mechanics of the accident or describe the force or speed of the impact.  Bennett 932 N.E. 2nd at 711.  The Indiana Supreme Court rejected this analysis. 

Last week, the New Jersey Senate Education Committee unanimously passed two bills (S-3053 and SR-74), which would boost New Jersey’s efforts to protect high school athletes from head injuries.

S-3053, sponsored by Senator M. Teresa Ruiz (D-Essex/Union), would require cheerleaders, and their coaches, to be included in the “student-athlete” head injury safety program, which is now required by law as of last year. This law made New Jersey the state with the most comprehensive concussion prevention and treatment program in the country.

SR-74, sponsored by Senator Codey (D-Essex), would urge school districts to implement a baseline cognitive testing program, which is designed to assist in measuring the post-injury condition of a student athlete who has sustained a concussion. The process includes performing a test on student-athletes at the beginning of a season that covers attention span, working memory, sustained and selective attention time, response variability, non-verbal problem solving and reaction time. The information is used to evaluate the severity of a head injury and whether or not an injured student is recuperating.
 
Both measures now head to the full Senate for a vote.

The Federal Motor Carrier Safety Administration (FMCSA) and The Pipeline and Hazardous Materials Safety Administration (PHMSA) have amended the Federal Motor Carrier Safety Regulations (FMCSRs) and the Hazardous Materials Regulations (HMR). These amendments will restrict the use of cell phones by drivers of commercial vehicles.

The hope is that the new rule will improve the safety on the Nation’s highways by reducing the use of cell phones and therefore reducing the number of auto accidents, and fatalities. The Agencies also implemented new driver disqualification sanctions for commercial vehicle drivers who fail to comply with the new Federal restrictions and who already have multiple convictions for violating a state law that restricts the use of cell phones while driving.

The New Jersey Appellate Court has upheld a June 2010 verdict I obtained on behalf of one of my clients who sustained a traumatic brain injury following a serious motor vehicle collision in Hunterdon County, New Jersey. At the time, of the incident, my client was an investment banker earning approximately $900,000 per year. At the time of trial, my client was earning approximately $1.4 million per year. 

It was our contention that as a result of the cognitive impairments resulting in permanent cognitive disability, my client would be forced out of the work force much earlier had he not sustained this injury.  In preparing and trying the case I retained vocational economic expert Anthony Gamboa, Ph.D., MBA, of Vocational Economics. Dr. Gamboa explained to the jury, that as a consequence of the permanent cognitive impairments following a mild traumatic brain injury, that although my client remained a high earner, that as a result of his disability he would be force out of the labor market much earlier than would have been expected.

The case involved claims against the New Jersey Department of Transportation as well as another co-defendant with whom plaintiff settled prior to trial. The case proceeded against the State of New Jersey, Department of Transportation.  The jury returned a gross verdict in the amount of $3.6 million dollars, which was reduced to $1.44 million, representing the 40% negligence the jury found against the State of New Jersey and its employee. 

The New Jersey Law Journal summarized the case as follows:

ECONOMIC DAMAGES ARE AFFIRMED THOUGH PLAINTIFF'S EARNINGS ROSE AFTER ACCIDENT
On Thursday, The Appellate Division let stand a $1.44 million award for economic damages from an auto accident even though the plaintiff's earnings climbed steadily after the crash. The panel rejected the defense contention that the jury should not have heard expert testimony on economic damages because plaintiff did not prove a loss of earning capacity. The expert used U.S. Census data showing that male workers of the plaintiff's age, with a professional degree and a cognitive disability, earn an average of 6 percent less per year and work an average of 7.1 fewer years than nondisabled counterparts. But as the plaintiff's robust earnings showed he did not suffer a "substantial" loss, he is ineligible for noneconomic damages against the state under the Tort Claims Act, the court said. A link to the appellate division decision can be found here. 

United States Representative, Pat Meehan (R-7) of Upper Darby, Pennsylvania recently discussed legislation that would benefit children with traumatic brain injuries through a seven-year initiative known as the National Pediatric Acquired Brain Injury Plan.
 Meehan said the legislation is important because the human brain develops until age 25 and traumatic brain injuries can occur as a result of several incidents, such as athletic activity and wartime combat.


The legislation would create a Center of Excellence in each state across the country, as well as the District of Columbia and Puerto Rico. Meehan said the centers would allow for the collection of records and research on traumatic brain injuries in every state and would eventually form a standardized, evidence-based system. 


Meehan works in conjunction with Patrick Donohue, whose daughter, Sarah Jane Donohue, was the victim of shaken baby syndrome just five days after she was born in 2005. In October 2007, Patrick Donohue founded The Sarah Jane Brain Foundation in an effort to raise awareness of the syndrome and traumatic brain injuries. In January 2009, the international advisory board of the Sarah Jane Brain Foundation developed the PABI Plan. Donohue said that each year, more than 600,000 children go to the emergency room with a new brain injury. Of that, 80,000 require hospitalization and 11,000 die.

The plan will not cost additional tax-payer dollars, but rather, will be supported with discretionary funds set aside for the United States Department of Health and Human Services. The program was expanded to include all high school athletes and will be introduced at the middle-school level.

Starting in the winter 2011-2012, all skiers and snowboarders under the age of 18 will be required to wear a helmet thanks to a new law passed by the state in April. New Jersey is the first state in the nation to have such a law. California is also considering a similar legislation.

A recent study by Morristown Memorial Hospital, which treats hundreds of people injured annually at Mountain Creek and Hidden Valley Club ski resort, in Vernon, New Jersey, found that 41% of skiers at Mountain Creek used helmets, which lags the national average of 57%, according to the Newark Star-Ledger. The study also revealed that although helmets don’t prevent serious injuries in high-speed crashes, they will prevent 30%-50% of injuries which occur at moderate speeds.

On May 11, 2011, Representative Todd Russell Platts (R-PA), Co-Chair of the Congressional Brain Injury Task Force, in conjunction with the office of Congresswoman Gabrielle Giffords (D-AZ), Task Force members and the Brain Injury Association of America, introduced an amendment to the National Defense Authorization Act which would authorize $1,000,000 for the development of treatment guidelines for post-acute rehabilitation of traumatic brain injury.

Despite the many advances in science and medicine, medical treatment guidelines for post-acute rehabilitation of moderate and severe TBI do not exist. Currently, there is no compilation of the published evidence and professional consensus to ensure that wounded warriors and the 1.7 million civilians who sustain brain injuries in the U.S. receive the highest quality, most effective post-acute rehabilitation.

The Patient Protection and Affordable Care Act charges the agency with writing regulations for essential health benefits based on a “typical employer plan.” Since there are no typical insurance plans for TBI, advocates argue the essential benefits for rehabilitation should be based on standardized treatment guidelines that reduce long-term disability and mitigate against the chronic disease processes that result from a traumatic brain injury.

A recent article in USA Today entitled, “For Brain Injuries, a Treatment Gap,” accurately reports the need for individuals who sustain brain injuries to access medically-necessary rehabilitation of sufficient scope, intensity and duration from licensed professionals in accredited settings to regain the physical abilities and cognitive skills needed to live healthy, independent and satisfying lives. Many brain injury professional are recommending everyone to check their health insurance plan to make sure they’re adequately covered in case of a serious injury.

The Brain Injury Association of America is urging the U.S. Department of Health and Human Services to consider catastrophic injury in formulating regulations for the essential health benefits package under the Patient Protection and Affordable Care Act. For more information: Access to Care Fact Sheet 2011.

The New Jersey Assembly has approved legislation which would make New Jersey the first state in the nation to require helmets for minors while skiing or snowboarding. The bill was sponsored by Assembly Republicans Anthony Bucco, Scott T. Rumana and Nancy F. Muñoz. The Assembly Tourism and Arts Committee unanimously approved the legislation on January 20, 2011 during the National Ski Areas Association's National Safety Awareness Week.

"New Jersey is now positioned to lead the nation down the trail toward safer skiing for children," Bucco said. "Everyone should strap on a helmet before hitting the slopes because medical evidence has clearly demonstrated that this simple act can greatly reduce the threat of serious injury while skiing or snowboarding."

The bill would require anyone less than 18-years-old to wear a proper helmet while downhill skiing or snowboarding. Parents, guardians or supervising adults would be responsible for complying with the law. "Young people wear helmets when they ride bicycles and that safety requirement should remain in place when they're skiing and snowboarding," Muñoz, R-Union, Essex, Morris and Somerset, said. "This will make sure parents provide their children a simple safeguard against serious injury on the slopes."

Aaron Steiner, a minor plaintiff, sustained personal injuries and filed a Complaint against the New Fairfield Board of Education.  Defendants requested a neuropsychological examination.  Plaintiff objected asserting the right to have the neuropsychological testing observed and videotaped.  Defendants opposed that request. 

Most recently, the Superior Court, Judicial District of Danbury in the matter of Steiner v. New Fairfield Board of Education, (No. DBD CV 09-5006356 S) ruled that defendants were entitled to a neuropsychological evaluation.  However, the Court ruled that the evaluation must be conducted in a facility that had a one way mirror.  The Court also ruled that counsel for both the plaintiff and defendants would be permitted to observe and videotape the examination behind the one way mirror.  The videotape, any recorded observations, and the test results would be subject to a confidentiality agreement and available solely to counsel and their respective clients.  Finally, the Court ruled that the testing examiner would have total control of the manner of testing, the tests to be conducted, the format of the testing, and any questions related to the testing.  The examiner had the right to halt the testing at any time in his/her’s sole discretion.

The Order was signed by Judge Schofield.