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.

When did judges become jurors? Or put a better way, when did the New Jersey Supreme Court overrule Brill and empower trial judges to become the deciders of the facts, obviscating the need for jury trials?

The New Jersey Supreme Court held that a non-physician expert was qualified to testify regarding medical cause of a worker's injury. In Clark v. Safety-Kleen Corp., 179 N.J. 318, 845 A.2d 578 (2004), the Court held that a non-physician research chemist was qualified to testify regarding the medical cause of a workers injury. The Plaintiff in Clark developed an infection after a cut on his finger was exposed to a certain chemical. The Appellate Division reversed, holding that it was an error to permit the chemist to testify regarding medical causation, since this opinion was beyond the scope of the expert's qualifications.

I was recently contacted to review a file on behalf of a woman injured in a bus incident. The accident had occurred a number of years ago and suit had already been filed in the United States District Court. In order to learn a little about the case before conducting an in-depth interview, I asked the individual to please send me copies of whatever medical records and legal pleadings she had in her possession. Unfortunately, the medical reports which were sent for review were on their face insufficient to meet the legal requirements necessary to succeed.

While the physician was able to document an impairment, he was unable to causally relate that impairment to the specific traumatic incident, simply stating "it is possible that the incident was the cause."

Under our legal standards, an expert's opinion must be based on a reasonable degree of medical probability or certainty (the case of a medical expert) or to a reasonable degree of scientific certainty. The use of the term possible was fatal.

In any personal injury case, it is essential that the plaintiff have an expert causally relate the injury to the specific traumatic event. In other words, in bringing a personal injury case, a plaintiff must have a doctor, not necessarily a physician, state to a reasonable degree of medical, psychological or scientific certainty that the plaintiff suffered an injury that was causally related to the specific incident.

As a result of our experience and through careful assessment and preparation, Stark & Stark's personal injury lawyers have been able to help victims and their families obtain cash settlements for lost wages, medical expenses and pain and suffering.

Our personal injury practice is one of the largest in Central New Jersey. As many as 2,000 clients per year are assisted by our lawyers in personal injury matters and every case is supervised by a certified trial lawyer.

Our areas of practice include automobile accidents, birth injuries, construction accidents, traumatic brain injury, product liability, medical malpractice, motorcycle accidents, nursing home negligence, on the job injuries, slip and fall accidents and many more.