Brain Injury Legal Cases

A Connecticut trial court has upheld the use of diffusion tensor imagining (DTI), denying the defendants’ in limine motion to bar its introduction. In Vizzo v. Fairfield Bedfort, LLC, plaintiff retained Randall Benson, M.D.,  a behavioral neurologist, to conduct a behavioral neurological evaluation, to administer and interpret a DTI of the plaintiff and correlate  it with clinical findings.

Continue Reading Connecticut Court Upholds Admissibility of DTI

On August 10, 2011, United States Navel Petty Officer KY, age 26, was stopped in traffic on Route 206 in Bordentown, New Jersey, when her vehicle was rear-ended by a Ford 350 pickup operated by Mr. Avisai Pantle-Aguirre and owned by H&H Landscape Management, LLC. The force of the crash spun KY’s vehicle, causing it to collide with the vehicle stopped in front of her.

KY was initially diagnosed with having sustained a concussion and a neck injury. MRI’s of her brain, neck and low back revealed two small lesions in her left parietal lobe, three herniated discs in her neck and a bulging disc in her low back. Continue Reading Petty Officer Awarded $2 Million by Burlington County Jury

A federal judge has once again upheld the introduction of diffusion tensor imagining (DTI) in an mTBI case, rejecting defendant’s motion to exclude the DTI findings. In White v. Deere and Co., plaintiff filed a product liability action arising out of an incident that occurred while plaintiff was operating her Deere Model 4600 compact utility tractor and Model 460 loader. Plaintiff asserted that she sustained a traumatic brain injury as a result of a hay bale falling onto her head while she was operating the tractor.

Plaintiff retained Randall Benson, M.D. a board-certified neurologist as one of her medical experts. According to the opinion, Dr. Benson opined plaintiff sustained a traumatic brain injury, basing his opinion, in part, on the results derived from a DTI. Defendants moved to exclude Dr. Benson’s DTI findings, arguing that the DTI finding was unreliable.

The court, after discussing the admissibility standard established by the US Supreme Court in Daubert, Joiner and Kumho Tire, performed an analysis to determine whether Dr. Benson’s use and reliance on DTI was permissible.

Continue Reading Federal Trial Court Once Again Upholds Introduction of Diffusion Tensor Imagining into Evidence

In researching the admissibility of Diffusion Tensor Imaging, I came upon a Louisiana court decision upholding the use of Diffusion Tensor Imaging. Andrew v. Patterson Motor Freight, Inc., Civil Action No. 6:13cv814 (U.S.D.C., W.D. 2014).

Plaintiff was injured in a motor vehicle crash and was diagnosed as having sustained a traumatic brain injury to the frontal lobe resulting in residual deficits in the areas of emotion, impulsivity, personality, and short term memory. Plaintiff retained Dr. Eduardo Gonzalez-Toledo who administered Diffusion Tensor Imaging, which according to Dr. Gonzalez-Toledo demonstrated evidence of traumatic brain injury pathology.

Defendants moved to bar Dr. Gonzalez-Toledo, a neuro-radiologist, arguing that Diffusion Tensor Imaging was not widely accepted for the diagnosis of traumatic brain injury. In support of their argument, defendants relied upon a single article entitled “Guidelines for the Ethical Use of Neuroimages in Medical Testimony.”

The Court found:

Continue Reading Federal Court in Louisiana Admits DTI into Evidence

People, who have sustained a permanent injury which results in a permanent work disability, will earn less and will have a shortened work life expectancy, even where the individual has returned to full time employment.  Thus, in every case, where a plaintiff has sustained a permanent injury resulting in a permanent work disability, a claim for loss of future earning capacity exists.

In Figurski vs. Trinity Health-Michigan, the Michigan Court of Appeals upheld a verdict in an obstetrical medical malpractice action.  On appeal, defendants asserted that the trial court abused its discretion when it determined that Anthony Gamboa, Ph.D., MBA, could offer an opinion as to plaintiff’s future loss of earning capacity.  Defendants attacked both Dr. Gamboa’s qualifications to testify as an expert and attacked his methodology as unreliable.  The Michigan Court of Appeals disagreed.

The Court of Appeals found that the trial court clearly understood her role as gatekeeper.  Dr. Gamboa was qualified as a vocational rehabilitation expert.  He held a number of degrees, including a Master’s in vocational counseling and a Ph.D. in an area that included vocational counseling and education.  Gamboa also received a MBA and testified that he liked to focus on statistics.  Gamboa has been with Vocational Economics, Inc. in one capacity or another since 1977.  His work there necessarily included offering expert opinions on the cost of future care and compensation loss.  He was a prolific writer in the area of earning capacity loss and work life expectancy.  The Court of Appeals also found that there was nothing unusual with regard to Dr. Gamboa’s methodology and that the trial court was correct in concluding that the different methods of calculating plaintiff’s damages was best left to the ultimate trier of fact.

 

A recent decision by the Supreme Court – State of New York, Nassau County, Part 40 rejected a motion by defendants to preclude the plaintiffs from presenting evidence regarding diffusion tensor imaging in support of their claim that the infant plaintiff suffered a traumatic brain injury as a result of a traumatic incident.  Sullivan v. Walters, Index number 6110-2005, Supreme Court-State of New York, Nassau County, Part 40.

There, defendants moved pursuant to Frye v. United States, 293 F. 1013 (1923) to bar the admissibility of plaintiffs’ expert Michael Lipton, M.D., Ph.D., asserting that the use of DTI violated the Frye standard.

In support of their motion, defendants submitted the affidavit of Dr. A. John Tsouris who is a board certified staff neuro radiologist and director of neurological MR imaging at New York Presbyterian Hospital-Weill Cornell Medical Center, and an associate professor of radiology.  Dr. Tsouri has co-authored two articles on DTI and is presently researching the possibility of utilizing DTI to establish mild traumatic brain injury in professional football players and patients suffering from MS, ALS, and brain neuoplasm as part of a collaborative study by the Hospital for Special Surgery and Weill-Cornell Medical Center’s Department of Neurology.  Dr. Tsouris affirmed that “research to date has shown that there is a significant overlap between FA values of individuals with traumatic brain injury and FA values in persons with no history of traumatic brain injury.”  Dr. Tsouris was also of the opinion that while DTI could be used if at all in a group study that individual results were meaningless unless compared to a control group.

Plaintiffs’ expert, Dr. Lipton, explained “MRIs are insensitive to white matter in the brain and so people who have sustained a closed head injury often have normal MRI results despite damage to white matter in their brains.  DTI is far more sensitive than MRI in that it measures the direction of extremely small-scale movement a/k/a diffusion of water molecules within tissue.  It was Dr. Lipton’s opinion that plaintiff’s quantitative analysis of FA images from the MRI/DTI study demonstrated multiple foci of significant low anisotropy consistent with traumatic axonal injury.  Dr. Lipton also explained that DTI does not and cannot, on its own, diagnose mild traumatic brain injury, but that it must be correlated with history and other clinical data to either substantiate or refute the diagnosis.

Plaintiff presented numerous medical literature and other publications which supported the use of DTI in establishing a traumatic brain injury as well as numerous Orders in which DTI has been admitted into evidence.

Defendants also asserted that Dr. Lipton’s failure to provide the computer programs and foundational data basis should also result in Dr. Lipton being barred.  The Court noted that these programs where the proprietary property of Montefiore Medical Center and Albert Einstein College of Medicine, which were not a party to the action nor had relief against them been sought.  More importantly, the Court noted that the information was confidential under HIPAA and the Court denied that portion of the motion as well.

The Association for Scientific Advancement in Psychological Injury in the Law has published an official position regarding psychological assessment of symptom and performance validity, response bias, and malingering. Psychol. Inj. And Law (214) 7:197-205.  Bush, SS, Heilbronner and Ruff RM.  According to the abstract, the “purpose of this position statement is to promote ethical psychological practice in legal context by reviewing validity assessment issues and their ethical foundations.”  The authors find the position statement necessary as “no previously published document focuses specifically on symptom, performance, and response validity assessment that is pertinent for all psychological evaluation performed in forensic context.”

The authors make the following recommendations: Recommendations for Forensic Practitioners

  1. Strive to be familiar and practice consistent with relevant practice, ethical, and legal/legislative requirements pertaining to validity assessment, including the present statement and extant position statements (e.g., Bush et al. 2005a, 2005b; Heilbronner et al., 2009).
  2. Only validity measures having appropriate psychometric properties are used, selected based on the characteristics of the examinee and the circumstance(s) for which the examinee is referred.
  3. List all validity measures and psychometric indicators used but avoid describing them in detail.
  4. Interpretations of the results of assessment measures are based on consideration of all the relevant reliable assessment data, and then considered with the full data set (e.g., from examinee interview, collateral sources, records). These other data sets might contain substantial inconsistencies or discrepancies. The conclusions that best fit the full data set are offered in opinions and testimony, independent of the desires of the referral source.
  5. Be wary of inferring motivation, volition, intention, and consciousness when there is insufficient evidence. However, do not avoid making such judgments when sufficient evidence is available. Consistently using preferred inferences, such as feigning or a “cry for help,” can be unhelpful or misleading in individual cases unless the evidence overwhelmingly supports such a conclusion.
  6. Use of validity measures and indicators is maximized when practitioners understand the various items and definitions, and how to resolve inconsistencies therein in their conclusions. Understanding inconsistencies within and across relevant ethics codes, professional guidelines, practice regulations, legal/legislative frameworks, and position statements, enables practitioners to address them effectively in court.
  7. Repeatedly check for biases and incentives in one’s own practices and conclusions. Internal or external influences that detract from an unbiased approach to evaluations need to be considered and countered. It is the forensic practitioner’s responsibility to guard against biases and strive to maintain a balanced perspective.

A Florida Court has again stricken the use of the MMPI‑2‑RF Fake Bad Scale as well as the “Slick” diagnostic criteria for malingered cognitive dysfunction.

As readers of this blog will recall, the Fake Bad Scale was designed by Paul Lees Haley, Ph.D. The Slick diagnostic criteria were developed by D.J. Slick. He and his colleagues proposed a set of diagnostic criteria that defines psycho metric, behavioral, and collateral data indicative of possible, probable and definitive malingering of cognitive dysfunction for use in clinical practice and for defining populations for clinical research.  (See Diagnostic Criteria for Malingered Neuro Cognitive Dysfunction:  Proposed Standards for Clinical Practice and Research.  Slick DJ, Sherman EM, Iverson GL. Clin Neuro Psychol 1999 Nov.; 13(4):545‑61. 

In the matter of McGann v. State Farm Mutual Automobile Ins. Co., Case Number 2011-CA- 781, (Circuit Court of the Ninth Judicial Circuit, Osceola Cty, Fl.), plaintiff moved to strike the testimony of defendants CME psychologist, Laurence Levine, Ph.D.  In particular, plaintiff sought to preclude the testimony of Dr. Levine in regard to the MMPI-2‑RF‑Bad Scale (“FBS”) testing and his use of the Slick criteria, and opinions that the plaintiff was malingering and or exaggerating his symptoms. 

Pursuant to the new standard adopted in Florida, the court conducted Daubert hearings over three days and reviewed the testimony from several experts and reviewed filed articles and affidavits.

The court found:

“[T]he FBS and Slick criteria are unreliable, generally unaccepted in the scientific community and are not objective measurements of malingering, exaggerating or over reporting of symptoms.  Their probative value is outweighed by the prejudicial impact.  Finally, the court holds the testimony in question invades the province of the jury as to determination of witness credibility.”

The court then ordered and adjudged that Dr. Levine was precluded from making any reference to FBS testing and Slick criteria as evidence of malingering, exaggeration or over reporting of symptoms, both in general and with respect to the plaintiff, and precluded Dr. Levine from offering any opinions on causation of the plaintiff’s complaints/injuries to the accident.  

Recently, there have been a number of articles addressing efficacy of bike helmets and their ability or inability to prevent concussions and more serious traumatic brain injuries.  Bicycling Magazine featured an article entitled “Senseless” stating “bicycling helmets do an outstanding job of keeping our skulls intact in a major crash. When they do almost nothing to prevent concussions and other significant brain injuries – and the very government agency created to protect us is part of the problem.  The time has come to demand something safer.”  The article was written by Bruce Barcott. 

Continue Reading Recent Articles about Bicycle Helmets and Traumatic Brain Injury

In the May 23, 2013 issue of Brain Injury, David E. Ross, et al. submitted a Letter to the Editor entitled “Brain MRI volumetry in a single patient with mild traumatic brain injury.”  The report described the case of a 42 year old man who was in a motor vehicle accident in May 2008, leading to a mild traumatic brain injury and other injuries.  His MRI brain data were analyzed with Neuro Quant (a FDA‑approved computer‑automated method for measuring MRI brain volume) and susceptibility‑weighted imaging (SWI) to assess for signs of old bleeding.  A volumetric cross‑sectional (one point in time) analysis showed no brain atrophy, consistent with initial CT and MRI scans of the brain.  Volumetric longitudinal (2 points in time) analysis show progressive atrophy in several brain regions.  Dr. Ross reports that the case demonstrated that in a single patient the principle discovered in multiple previous group studies, namely that longitudinal design is more powerful than the cross‑sectional design for finding atrophy in patients with traumatic brain injury.