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A Florida trial court has denied a defendant’s Daubert motion to strike the plaintiff’s expert’s testimony regarding qEEG testing. In Snyder v. ESURANCE Property and Casualty Insurance Company, Case No. 01-2018-CA-2651 (8th Judicial Circ. Ala. Chua. Cty., FL), the defendant sought to bar the testimony of Dr. Lisa Avery, an eligible board neurologist, from testifying regarding her interpretation of a quantitative electroencephalogram (qEEG). To support its motion, the defendant submitted “only” three articles and argued at a hearing that using qEEG for diagnosing mild traumatic brain injury had been prohibited by the American Academy of Neurology (AAN) for over 20 years. Noteworthy in the court’s opinion was that the AAN guideline relied upon by the defense was “retired” in January 2020 and was no longer the official position of the Academy.
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Continue Reading Florida Court Upholds Admissibility of Quantitative Electroencephalogram (qEEG)

Experts hired in defense of mild traumatic brain injury claims often allege that mild traumatic brain injury recovery is uneventful in 6 to 12 months. Hearing a defendant’s courtroom doctor testify could lead one to believe that mild traumatic brain injuries are relatively benign and minor.

A new study published in Brain Injury sheds light on the high costs and health-care resources utilized in the first 12 months following a mTBI.

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Continue Reading mTBI Recovery: The First Year will be Expensive

A Superior Court of Washington for King County recently upheld the admissibility of diffusion tensor imaging.

In Peach v. RLI Insurance Company, defendants moved to exclude the testimony of Dr. Cyrus Raji and related testimony regarding the admissibility of diffusion tensor imaging. Defendants produced the affidavit of Dean Shibata, M.D. In deciding the motion, utilizing a Frye standard, the Court found as follows:

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Continue Reading Another Win for Diffusion Tensor Imaging (DTI)

The United States District Court for the Southern District of Florida has ruled that diffusion tensor imaging (DTI) satisfies the Daubert standard for admissibility. Marsh v Celebrity Cruises, Inc., Case No. 1(17-CV-21097-UU.

In this case, the plaintiff was injured when she fell on a puddle of water on the Solarium floor of a Celebrity Cruise ship. As a result of the fall, plaintiff sustained a mild traumatic brain injury (TBI).

The plaintiff retained Gerald York, M.D., a board-certified neuro-radiologist and radiologist as an expert witness. Dr. York is the Director of TBI Imaging ARA/IA and a staff neuro-radiologist at the Providence Alaska Medical Center and also works as a consultant to the Defense Veterans Brain Injury Center. Additionally, he participated in the development of approved protocols for neuroimaging of the brain and contributed to the American College of Radiology’s Guidelines for Neuroimaging.

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Continue Reading Federal Court Upholds the Admissibility of Diffusion Tensor Imaging in TBI Case

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.
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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.

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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:

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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…

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. …