Prosecuting Traumatic Brain Injury Case

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A new study conducted by researchers from Boston University found that children who sustained a concussion/mild traumatic brain injury prior to the age of 12 had a greater risk of later-life cognitive impairment.  Robert A. Stern, Ph.D. and colleagues at Boston University conducted a study to “determine the relationship between exposure to repeated head impacts through tackle football prior to age 12, during a key period of brain development and later-life executive function, memory, and estimated verbal IQ.”  The study, published in Neurology, the official journal of the American Academy of Neurology studied 42 former NFL players ages 40-69, who were divided into two groups based on their age and first exposure to tackle football.  The players were administered a neuropsychological test battery consisting of the Wisconsin Card Sort test, Neuropsychological Assessment Battery List Learning Test, and the Wide Range Achievement Test, 4th Edition (WRAT-4) reading subtest.

The researchers found that those NFL players who had sustained a brain injury prior to the age of 12 performed significantly worse on all measures after controlling for the total number of years of football played and age at time of evaluation,  indicating executive dysfunction, memory impairment, and lower estimated verbal IQ.

According to the abstract conclusion, “there is an association between participation in tackle football prior to age 12 and greater later-life cognitive impairment measured using objective neuropsychological tests.  These findings suggest that incurring repeated head impacts during a critical neuro developmental period may increase the risk of later-life cognitive impairment.”

From a neuro legal perspective, this study lends objective proof that children who sustained a traumatic brain injury have a greater risk of long term problems that their cohorts who sustained a concussion after the age of 12. Click here for the full article. If you or a loved one has been injured, contact Stark & Stark today for your free no obligation consultation.

Readers of this blog are familiar with my efforts to bar defense biomechanical engineers and accident reconstruction “experts” from providing invalid biomechanical testimony that people cannot be injured in low-impact collisions.  Recently, I served as amicus counsel for ATLA-NJ before the New Jersey Supreme Court.

I am happy to report that recently in Corpus Christi, Texas, a Texas attorney was successful in having a biodynamic research corporation expert barred from testifying.  Plaintiff’s expert was Michael Freeman, Ph.D.  I have been advised that this is at least the thirteenth time that a plaintiff’s attorney has been successful in barring a BRC engineer based on the testimony of Dr. Freeman.

On January 6, 2006, Superior Court Trial Judge Paul Innes, J.S.C. ruled that CNA Insurance Company acted unreasonably in delaying my client’s right to arbitrate an underinsured motorist claim. The Court also found that CNA failed to exercise due diligence in its failure to put on notice a second insurance carrier.

My client was involved in a motor vehicle collision which was caused by a 17-year-old pizza delivery boy who ran a stop sign. As a result of the violent collision, my client sustained a traumatic brain injury which has left him permanently disabled. Suit was instituted against the 17-year-old and against his employer who, as it turned out, was uninsured. The case against the 17-year-old was settled for $225,000.00. At that point, plaintiff filed a claim for underinsured motorist against his own insurance carrier, CNA, since the defendant’s insurance policy was willfully inadequate to fully compensate him.

CNA refused to recognize the claim and refused to arbitrate as required under the insurance policy. I filed a Complaint and Order to Show Cause to compel CNA to explain its refusal. On Friday, Judge Innes ruled that CNA’s refusal was improper and its delay was unreasonable. CNA also asserted that another insurance company, Clarendon Insurance Company, was either fully or partially responsible for paying plaintiff’s claim. However, Judge Innes ruled that CNA’s failure to timely put Clarendon on notice prejudiced Clarendon. As a result, Judge Innes dismissed CNA’s claim against Clarendon finding that it failed to exercise due diligence. The case will be scheduled for arbitration in the near future.

While this blog is dedicated to brain injury law, I hope that the readers will not be upset with me for digressing to discuss an important issue regarding personal injury law in general.

Over the past decade and a half, there has been a concerted effort by insurance carriers, product manufacturers and others whose improper behavior is curtailed by plaintiff’s trial attorneys to cap contigent fees. A new study has found that capping contingent fees isn’t helping accomplish tort reform. This study was published by the conservative American Enterprise Institute and was published in August, 2005. The study’s two economic professors, Alexander Tabarrok of George Mason University and Eric Helland of Claremont McKenna College analyzed closed cases in 16 states (8 with no caps and 8 with contingent fee caps). The AEI study found that contingent fees:

1. Give wares and incentive to screen cases and weed out the “frivolous” ones
2. Motivate lawyers to win
3. Improve access to the Courts for low-income plaintiffs.

The study found no evidence that contingent fees affect settlement rates, but did find that they reduced the time to settlement. The data revealed that restricting contingent fees increased the time to settlement by 22 percent. Capping contingent fees also did not lower awards. The data showed the exact opposite. Awards in states with caps were more than twice as high as in those without restrictions. The authors wrote “Blaming contingent fees for out-of-control Courts is like blaming credit cards for personal bankruptcy.”

I recently served as a presenter at the 6th Annual “Understanding The Medical and Legal Aspects of Brain Injury Litigation” Course sponsored by the Brain Injury Association of New York. I presented information on the use of medical literature in brain injury litigation. You can listen to my presentation here (7.2 MB).

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The October 2005 TBI Newsletter reports that the Mayo Clinic has created a new coma measurement system as a proposed replacement for the current Glasgow Coma Scale. The new system is called the FOUR (Full Outline of UnResponsiveness) Score. With the FOUR Score system, evaluators assign a score of zero to four in each of four categories, including eye, motor, brain stem and respiratory function. A score of four represents normal functioning in each category, while a score of zero indicates nonfunctioning. Read the full article here.

The June edition of the American Bankruptcy Institute Journal has published an article written by Timothy Duggan, a fellow Stark & Stark attorney. Tim is the Chair of the Firm’s Bankruptcy and Creditor’s Rights group.

His article, Informal Proof of Claim: Form or Substance? (PDF) discusses a recent Third Circuit decision in which the Court clarified the boundaries surrounding the filing of informal proofs of claim. I thought this article would be of interest to the injury lawyers who read this blog and sometimes find themselves in a situation where their client has a claim against a company who files for bankruptcy protection.

Here is an excerpt of Tim’s article:

Underlying Facts
A seaman was injured while working for a company that owned and operated a riverboat known as the Delta Queen. After advising the company of his claim, the seaman hired a lawyer, who sent a written notice of the claim to the company. Four months later, the company filed for chapter 11 protection.

The bankruptcy clerk mailed a notice of the commencement of the bankruptcy case to all creditors that advised them to file their proof of claims with the court-appointed claims agent. The seaman’s lawyer received the notice and sent a letter to the claims agent requesting a proof-of-claim form and advising the claims agent that the seaman was injured on the Delta Queen and “has a claim against the debtor.”

The next month, the claims agent sent the seaman and his lawyer a copy of the notice setting the bar date to file a proof of claim and a proof of claim form. Neither the seaman nor his lawyer filed a proof of claim. Rather, three months after the bar date passed, the seaman’slawyer filed a motion for stay relief to pursue the claim under the Jones Act. Debtor’s counsel opposed the motion, arguing that the stay should not be lifted because the claim was barred. The seaman’s attorney immediately filed a motion to enlarge the time to file a proof of claim and, in the alternative, argued that his prior letter to the claims agent constituted an informal proof of claim. The bankruptcy court denied both motions, and the U.S. District Court affirmed on appeal.

I recently wrote about $975,000.00 settlement that I obtained on behalf of a client who sustained a traumatic brain injury as a result of a motor vehicle collision. As a result of the case resolving, the trial court never was called upon to decide two outstanding motions that had been filed with regard to the introduction of a PET scan and whether neuropsychological testing was objective. At the suggestion of my client’s physician, my client underwent a PET scan at Mt. Sinai Medical Center, which was interpreted by one of the country’s leading experts, Monte Buchsbaum, M.D. Dr. Buchsbaum opinion was that the PET scan objectively documented the subjective complaints of my client. Defendant moved to bar the introduction of that PET scan arguing that PET scans to diagnose traumatic brain injury was not scientifically valid. This was an interesting argument in that defendant’s own PET scan expert, Ronald Van Heertum, M.D., who is chairman of the PET laboratory at Columbia Presbyterian did not support defendant’s legal argument. While Dr. Van Heertum, not surprisingly, disagreed with Dr. Buchsbaum’s interpretation of the PET scan, he did not join in defense counsel’s argument that the PET scan was not scientifically valid to diagnose mild traumatic brain injury. In opposing the motion, I was able to locate an affidavit prepared by Ronald S. Tikofsky, M.D. who co-authored a textbook entitled “Functional Cerebral SPECT and PET Imaging” with Dr. Van Heertum. Along with this affidavit, I was able to obtain affidavits from other leading experts in the field, all supporting the clinical use of PET to diagnose traumatic brain injury. Also undecided was my motion to declare that neuropsychological testing is objective as a matter of law. In support of my motion, I demonstrated that the American Academy of Neurology’s own position paper on neuropsychological testing called it objective. Also, Medicare, in its regulations, has determined neuropsychological testing to be an objective assessment of brain functioning. Just as important, I was able to obtain concessions from defendant’s own neuropsychologist, both in this case and in others where I have deposed him, that neuropsychological testing is objective. While the trial court did not rule on these motions in this case, it is clear to me that there will be future motions on these topics.

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.

Fascinating! Yesterday I participated in a wonderful workshop discussing various automobile insurance schemes that exist in the various states here in Australia as well as in the United Kingdom and Canada. Australia has no auto insurance companies. The government runs the insurance system. I obviously spoke about the various schemes that exist in the United States and primarily in New Jersey. My intent was to warn the Australians, who in a number of states recently enacted no-fault guidelines, about the dangerous road on which they have embarked. Previously like most states in the United States, Australia followed the tort system brought over or copied from Britain. This system permits one injured in a motor vehicle accident to sue for all losses. Unlike the United States, Australia has national health insurance, but like the U.S., insurance does not adequately pay or provide for many of the medical care which people with acquired Traumatic Brain Injury need. In the 1980’s there was a wave to enact no-fault auto insurance which would pay all of the medical bills, had a lost wage component but did not permit one to sue for any other compensation. Here in the state of Victoria where Melbourne is the capital, at the last minute the Parliament balked and kept the compensation system. Similar to New Jersey the Parliament also enacted a threshold which required a claimant to prove a serious injury. However this proposal was rejected in New South Wales, in which Sydney is the capital. We also heard from a speaker from New Zealand, a neighboring country which does have pure no fault. Like in New Jersey, people with acquired TBI are able to get their bills paid for quickly, thus insuring prompt care. It is interesting that I have traveled half way around the world to find so many similarities.