Prosecuting Traumatic Brain Injury Case

I have arrived in Melbourne for the 6th World Congress on Brain Injury. I flew first to Sydney where I needed to adjust to the 14-hour time difference. Sydney is a very modern city that could be located anywhere in the United States. Except for the fact that they drive on the other side of the road, it is easy to get around. Yesterday I flew into Melbourne. Melbourne has a little more European flare; the architecture is a little older. I am told there are more arts and culture here. Yesterday I attended the IBIA board of governors meeting. We voted on Miami to host the Congress in 2007 and will begin to look for another host city for 2009. All of this information will be updated shortly on our website. On Saturday we will meet again to elect officers. This afternoon I will be speaking on auto insurance and in particular, no fault insurance. I will do my best to update everyone tomorrow.

I am happy announce that today’s post is the Brain Injury Blog’s first podcast. On Saturday, February 26, I was the Co-Chair of an ATLA-NJ Educational Foundation seminar titled, Trying the Auto Case: Openings to Summation. For my part of the day’s program, I spoke to the audience about effective strategies for cross examining defendant’s experts. Below is an audiocast of my presentation. You can listen to the presentation here. (14.2MB)

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I recently read an interesting article entitled Predictors of Neuropsychological Test Performance After Pediatric Traumatic Brain Injury. The authors were Jacobus Donders and Kelly Nesbit-Greene. The article investigated the influence of neurological and demographic variables on neuropsychological test performance, examining 100 9-16 year old children with traumatic brain injury. The investigation was conducted to determine the relative contributions of coma, neuroimaging findings, ethnicity, socioeconomic status and gender to variance and performance on the WISC-III, CVLT-C and Children’s Category Test. The researchers found, according to the abstract, both neurological and demographic variables contributed to performance on various WISC-III factor index scores as well as the CVLT-C. No evidence for a moderating effect of demographic variables was found, but speed of information processing mediated the effect of neurological and demographic variables on CVLT-C performance. The authors concluded that demographic variables have an incremental effect on the neuropsychological test performance of children with traumatic brain injury above and beyond the influence of injury severity. The citation for the article is Assessment, Vol. 11, No. 4, December 2004, 275-284.

Today’s New York Times (registration required) ran an article about a new brain-imaging study whose results sugest that brain-damaged people who are treated as if they are almost completely unaware may in fact hear and register what is going on around them but be unable to respond.

Some experts said the study, which appeared yesterday in the journal Neurology, could also have consequences for legal cases in which parties dispute the mental state of an unresponsive patient.

You can read the Tines article here.

Also, if you want to watch the February 8, 2005 NBC Nightly News with Brian Williams report on this encouraging study, you can click here.

On Thursday, after a week-long trial, my jury returned a verdict finding that neuropsychological testing was objective and satisfied the objective requirement of New Jersey’s verbal threshold. Under New Jersey law, before an individual can obtain compensation for non-economic damages, that person must establish by credible and objective evidence that he or she sustained an injury. During trial, defense counsel asserted that neuropsychological testing was subjective, since it required input from the patient. I countered that defense counsel was attempting to turn science on its head, reminiscent of what occurred during the Scope’s monkey trial. Using accepted medical literature from the American Academy of Neurology’s position paper on neuoropsychological testing as well as Medicare’s finding that neuropsychological testing was objective, I was able to effectively thwart this argument.

I would like to follow up on an earlier post in which I discussed representing a professional who had suffered a traumatic brain injury by providing some examples of these types of cases, and going into a deeper discussion about the difficulties which can arise at trial. Continue Reading Representing a Professional Who Has Suffered a Traumatic Brain Injury

In the past, plaintiff trial attorneys rarely were concerned with the force involved in an automobile collision. Where, however, the force was great and photographs depicted heavy property damage, those photographs would be enlarged and shown to the jury to further enhance the claim of the severity of plaintiff’s injuries. In contrast, low-impact collisions rarely concerned the trial attorney. With the intense propaganda of insurance carriers and manufacturers since the early 1990’s and with the cry for the need of tort reform, the defense has now seized on the low-impact collision as an arrow to deflate a plaintiff’s claim. Defendants argue that it is impossible for a plaintiff to have sustained the injuries claimed where the impact was light, and the property damage minimal or non-existent.

In the beginning, with this new defense, defense attorneys argued and persuaded juries that the insignificant and trivial motor vehicle collision certainly could not have caused the injuries claimed. Recently, defense attorneys have begun retaining accident reconstruction and biomechanical engineering experts to support this defense. However, despite the opinion set forth by many of these so-called experts, their testimony consists of nothing more than simply holding up photographs depicting minimal if any damage and opining that the plaintiff could not have sustained the injuries claimed in the motor vehicle collision.

The natural reaction when receiving defendant’s accident reconstruction/biomechanical engineering report is to laugh and scoff in the belief that this is just another hired gun which the defense has hired to convince plaintiff to accept less. All too often, plaintiff’s counsel fails to take seriously the strong effect that this report will have in persuading the jury that plaintiff is not entitled to compensation. On the other hand, receipt of these reports should not cause plaintiff’s counsel to quake and quiver and consider dropping the case. Rather, it calls for a great deal of work and preparation to diffuse these opinions. With hard work, the opinions of most accident reconstruction experts in low impact-collision can be diffused and eliminated.

A new desk reference on the neuropsychological evaluation of a child has been published. The text, entitled “Neuropsychological Evaluation of the Child” was written by Ida Sue Baron and published by George Washington University. According to the synopsis found on where the book can be purchased for $79.95, the book provides a broad and convenient collection of normative data in child neuropsychology. For anyone treating or representing children with traumatic brain injury, this is an essential book to have in one’s library.

A Federal District Court has upheld the admissibility of the articulated total body (ATB) computer simulation program, which is used primarily to interpolate and extrapolate the results of full-scale tests with anthropomorphic test dummies. In Melberg v. Plains Marketing, L.P., 332 F. Supp. 2d 1253 (D. N.D. 2004) plaintiff sustained a traumatic brain injury in a motor vehicle collision. Plaintiff retained a biomechanical engineer who utilized the ATB computer simulation program to conclude that the forces sustained by the brain were sufficient to cause brain injury. Continue Reading Articulated Total Body (ATB) Computer Simulation Held Admissible