Anticipating the Defenses

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1 Anticipating the Defenses Anticipating the Defenses A Proactive Approach to Handling Traumatic Brain Injury Cases Trial Diplomacy Joumal, Vol. 20, (1997) Bruce H. Stern Because they can prepare their cases prior to the filing of a lawsuit, plaintiffs' attorneys have a distinct advantage over the defense in mild traumatic brain injury (TBI) cases. While defense attorneys have made recent advances in their knowledge of TBI issues, the plaintiff's attorney, by using wisely the one and a half to two years before filing not only to prepare the plaintiff's affirmative claim but also to anticipate the defenses, can be the one better prepared to fight and win. While a mild traumatic brain injury (MTBI) case requires a great deal of time, effort, and finances by the trial attorney, this type of case usually begins quite benignly. In many MTBI cases, the client has suffered only minimal, if any, loss of consciousness. 1 Often, when the injury was sustained in an automobile accident, the client will never even have stricken his or her head against the interior of the motor vehicle. 2 The potential client sitting before the trial attorney in the initial conference often appears relatively uninjured, with modest complaints of neck pain and some vague symptoms of memory or concentration problems. 3 Initially, the client has difficulty expressing or articulating these new phenomena. He or she often associates the cognitive problems as being the result of headaches that occurred shortly after the injury. That he or she may have suffered a brain injury is the farthest thing from the client's mind. To accept the representation of this case and properly prosecute it as a traumatic brain injury (TBI) case, the trial attorney must, from the outset, anticipate and prepare for the defensive onslaught that will come once the suit is filed. BACKGROUND Since the early 1990s, the number of TBI cases in litigation has increased dramatically. Before then, lawyers, as well as doctors, unfortunately, gave short shrift to the diagnosis of postconcussion syndrome, never appreciating the significant residuals that might result from such a relatively benign diagnosis. In the early 1990s, only a few attorneys were bringing claims alleging MTBI. Those claims were often met with skepticism from not only the defense bar and trial judges, but from the plaintiffs' bar as well. Still, the defense of these cases lagged far behind the prosecution. "Neurolaw lawyers,"4 those members of the bar who devoted much of their practice to representing braininjured clients, staying alert to developments in both law and medicine, found themselves, over time, at a distinct advantage. They came equipped with well-qualified experts and a far superior knowledge of neuromedicine and neurolaw, and they were better able and more readily prepared to prosecute these claims. But as TBI litigation has increased, so has the defense bar's vigilance. The defense has begun to catch up. Seminars on traumatic brain injury, which were once only the province of plaintiffs' trial lawyers, have become a well-worn proving ground for the defense as well. Defense trial magazines such as Claims and DRI now routinely publish articles on defending TBI claims. Experts have begun to specialize in defending against these claims.5 Despite recent advances in the defense bar's understanding of TBI issues, plaintiff attorneys still retain a distinct advantage as a result of their ability to prepare their cases prior to the filing and instituting of a lawsuit. It is essential that the plaintiff's trial attorney use this time to anticipate and prepare for the defenses to these claims.

2 DEFENSE CENTRAL THEMES The defense of TBI claims typically surrounds two central themes: first, that the plaintiff does not have a brain injury, and second, that the specific incident which is the subject of the lawsuit was not the proximate cause of the injury. The first approach attacks the injury itself. Defense attorneys, using the services of defense neurologists, psychiatrists, and neuropsychologists, argue that the plaintiff does not have a brain injury. This approach, in turn, usually follows one of two courses: one that alleges the plaintiff's problems are the result of a psychological or emotional condition, or one that says the plaintiff is malingering and exaggerating the claim. The second central defense theme, which concedes that the plaintiff does have cognitive deficits, asserts that the injury preexisted the traumatic event forming the underlying cause of action. In cases involving motor vehicle accidents, the defense attempts to show that the collision was of such minor impact that it could not possibly have caused the injuries claimed. Another defense, in those states that permit it, deals with the failure of the plaintiff to use a seat belt. Under this strategy, the defense concedes that the plaintiff may have a brain injury as a result of the motor vehicle accident, but that the injury was caused by the plaintiff's own failure to wear a seat belt. Regardless of the defenses asserted, by properly anticipating these defenses before the suit, the plaintiff's trial attorney can seize and hold the initiative. OBTAINING A COMPREHENSIVE MEDICAL HISTORY While plaintiffs' attorneys usually are very good at obtaining treatment records and medical reports of treating experts, they all too often fail to obtain prior medical records. They take the approach of the boxer who has won the early rounds: hold on and hope to survive the late attack. They hope they have the experience and stamina to sustain the body blows they suspect are coming. To wait for the defense to obtain your client's prior medical records is to invite a knockout punch. In handling TBI cases, it is critical that plaintiff's counsel obtain all the medical records predating the traumatic event. In those cases where a client's prior medical records totally devastate the prospects of successfully pursuing an MTBI case, it is certainly better to obtain those records prior to suit so that the attorney can decline representation at an early stage before expending large amounts of money and time prosecuting a hopeless claim. When preexisting records show previous head injuries or psychological or psychiatric histories, those records are not necessarily devastating to the successful pursuit of an MTBI claim. If such records are obtained early and provided to the treating or expert neurologist, psychiatrist, and neuropsychologist, what may be determined to exist is an aggravation of a preexisting condition. The literature is clear that the effect of subsequent head injury is greater than that of geometric proportion.6 That is, a second head injury causes greater damage than simple multiplication by two. However, when the treating doctors and expert witnesses are not provided with the client's full medical records and have already opined, based on the incomplete medical history provided to them, that the MTBI was caused exclusively by the traumatic event in issue, the experts are then forced to backpedal in an attempt to resurrect a faltering claim. At the initial client interview, it is essential that the attorney obtain a complete medical history. The attorney needs to ascertain the plaintiff's family doctor, all past medical treatment received, and the names and addresses of past treating doctors, as well as of any hospitals or institutions where the client was treated for any and all injuries or conditions. The client's past medical insurance companies are often helpful in obtaining past medical records. The client's past employment records and past school

3 records and transcripts are also important to obtain. These records will help establish for the attorney, as well as the current treating physicians, the plaintiff's baseline status immediately before the traumatic event. Following the initial interview, the attorney should send a detailed traumatic brain injury questionnaire to the client and to the client's significant other in an effort to obtain further and more detailed background information. 7 After identifying these sources of information, the trial attorney must gather the records. These records should be reviewed, digested, and organized so that they easily can be reviewed and referred to later. More importantly, these records must be forwarded to busy medical providers early on. Organizing the records will not only serve to prepare the trial notebook, but will assist medical providers in preparing their reports and undergoing depositions. It is also essential early in the process to obtain the names of lay witnesses who can establish a baseline condition for the plaintiff prior to the traumatic incident.8 It is important to identify and interview the witnesses early rather than later. Often, due to the passage of time and the adaptability of the plaintiff, the lay witnesses forget the dramatic changes in the plaintiff's behavior that were so clear to them shortly after the incident. Additionally, victims' loss of friends due to dramatic behavioral changes brought on by the brain injury following TBI is well documented. It is therefore important to locate these people early in the litigation process. LOW-IMPACT ACCIDENTS The low-impact defense is not new. Previously, defense attorneys would exhibit photographs of the vehicles involved in the collision, pointing out to the jury the lack of significant property damage. They would then argue in summation that the slight damage shown in the photographs certainly could not have been the cause of the dramatic injuries alleged by the plaintiff. This defense has become much more sophisticated. Defense attorneys now hire biomechanical engineers to scientifically establish that the force of these impacts was not enough to cause the injuries claimed. For the unsuspecting plaintiff's attorney, the low-impact defense can be quite disheartening when, shortly before trial, defense counsel serves, by way of amendment to interrogatories, a biomechanical engineer's report. If the attorney is going to accept an MTBI case involving a low-impact accident, he or she must anticipate this extremely effective defense from the beginning. When possible, the plaintiff must bring in his or her own biomechanical engineer to examine the motor vehicles and measure the crush (damage). If that is not possible, then professional photographs must be taken of the car to document and preserve the information necessary for the biomechanical engineer to perform his or her evaluation. The trial attorney must have a professional photographer document the physical damage to both motor vehicles involved in the accident. 9 This is especially important in the case of a low-impact accident. Through proper photographic documentation, the plaintiff's biomechanical engineer will be able to calculate, using government-validated and -approved computer programs, the speeds of the vehicles at the time of impact, the change in velocity of the vehicles (Delta V), and the acceleration forces that were applied to the plaintiff at the time of the collision. These forces are essential to determine whether the impact was of such magnitude as to be a sufficient cause of the plaintiff's injuries. When this information is not preserved, it is difficult, if not impossible, to prove that the impact, though resulting in only minor damage to the plaintiff's automobile, nonetheless resulted in severe injury to the plaintiff. The plaintiff is left with what appears to have been a low-impact accident which, superficially, does not appear to be sufficient to be a factor in causing the claimed injuries. When there is no apparent damage to either of the vehicles, l0 one needs to examine the vehicles'

4 bumper isolators at the points of impact. While there might not appear to be any outward damage to either of the vehicles, an inspection of the bumper isolators will document impact severity. While this information is easy to obtain for the client's vehicle, it is often difficult to obtain for the defendant's vehicle, especially months or years after the collision. Upon receipt of the defense biomechanical engineer's report, plaintiff's counsel must immediately demand a copy of the expert's curriculum vitae, as well as a copy of the "raw" data that was generated to support the conclusions of the expert witness. As in any cottage industry, there are good experts and bad experts. The bad, more often than not, are professional engineers who promote themselves not only as engineers qualified to render expert opinions with regard to accident reconstruction, but also as experts able to address the biomechanics of an accident and the resultant injury. The properly trained biomechanical expert or experts, by contrast, cannot be dismissed so easily. In many circumstances, the defendant will hire an accident reconstruction expert to measure the amount of force that would be exerted on the human body as a result of the collision. Then, a second expert, trained in biomechanics, will show that those forces exerted in this specific motor vehicle collision were not sufficient enough to cause the injuries alleged. When this is done, it is important that plaintiff's counsel obtain the raw data and forward it to an expert biomechanical engineer to prepare the plaintiff's attorney for cross-examination. Often, the plaintiff's experts can detect subtle incorrect assumptions that the defense expert has made to diminish the severity of the impact. SEAT BELT DEFENSE In some states, the failure of a party to wear a seat belt is a defense that can severely reduce the compensation to which the plaintiff would normally be entitled. Once again, it is necessary to retain a biomechanical engineer early in the process in anticipation of this defense. In those states where the defense is available, it usually is the defendant's burden to show that the failure of the seat belt increased the risk of injury and that the injuries incurred were greater than those that would have been incurred had the person been wearing a seat belt properly. 11 To combat this defense, a great deal of literature shows that even when wearing a seat belt, a person could strike his or her head on the steering wheel or driver's side window, depending on the angle of the impact. 12 KNOW THY ENEMY Most trial lawyers are creatures of habit. They use the same experts, with whom they have become comfortable, time and time again. Where possible, plaintiff's counsel must research the defense experts that a particular defense attorney uses in defending these cases. Even when it is impossible to predict who will defend the case on behalf of the insurance carrier, or which experts ultimately will be obtained, the same expert names appear over and over. It is important that plaintiff's counsel discuss his or her MTBI case with other plaintiff's attorneys who have handled these cases in the particular geographic location. This will allow the attorney to identify the experts available in that area. Once these experts are identified, it is recommended that the plaintiff's attorney conduct a search to obtain past depositions and/or trial transcripts, as well as past reports. This information can be supplied to the plaintiff's biomechanical and medical experts to anticipate defenses the opponent will use in the case. MOCK JURIES The use of mock juries and trial consultants in MTBI cases is increasing. These experts will assist the attorney in preparing themes to use at trial, and they will assist in preparing trial exhibits that will help influence the jury. Due to their expense, most attorneys use these expert services immediately before trial, when it appears that the case will not settle. These consultants, however, should be retained earlier rather than later to enable the plaintiff to prepare successful themes and strategies before the discovery process begins. Once these themes are developed, plaintiff's counsel can prepare his or her experts and

5 cross-examination of the defendant's experts along the themes suggested. CONCLUSION The year and a half to two years before the filing of the complaint should be spent not only preparing the plaintiff's affirmative claim, but anticipating the defenses. This time should be used for (1) gathering the plaintiff's current and past medical records; (2) identifying preaccident lay witnesses who will assist in establishing the preaccident baseline condition for the plaintiff; and (3) obtaining and examining physical evidence to assist in anticipating and negating defenses. It is important to put these two years to good use by taking a proactive approach in anticipating and preparing for the defenses to an MTBI case. The plaintiff's attorney who exerts time and energy prior to the filing of the complaint, rather than spending the next two to four years after filing suit taking body blows and hoping to hold on, will be the one better prepared to fight and win, either during settlement negotiations or in court. ENDNOTES 1 H.S. Leven et al., Behavioral Consequences of Closed Head Injury (New York, Oxford University Press 1982); B. Jennette, Head Trauma, in Disease of the Nervous System 1282 (A.K. Asbury et al. eds., Philadelphia, W.B. Saunders 1996); B. Jennette, Some International Comparisons, in Mild Head Injury (H.S. Leven et al. eds., New York, Oxford University Press 1989); B.E. Leninger et al., Neurological Deficits in Symptomatic Head Injury Patients After a Concussion and Mild Concussion, 53 J. Neurology, Neurosurgery & Psychiatry (1990). 2 Jennette, Head Trauma, supra note 1, at D.W. Marion, Pathophysiology and Initial Neurosurgical Care, in Medical Rehabilitation of Traumatic Brain Injury 35 (L.J. Horn & N.D. Zasler eds., Philadelphia, Hanley & Belfus, Inc. 1996). 4 J.S. Taylor, Meeting the Legal Challenge, The Neurolaw Letter, Sept. 1991, at 1; J.S. Taylor et al., Neuropsychologists and Neurolawyers, 5 Neuropsychology 293 (1991). 5 D.R. Price & P.R. Lees-Haley, The Insurers Handbook of Psychological Injury Claims (Seattle, Claims Books 1995). 6 S.G. Gerberich et al., Concussion Incidences and Severity in Secondary School Varsity Football Players, 73 AJPH (Dec. 1983); Marion, supra note 3. 7 M. Cavallo & O. Ezrachi, N.Y.U. Head Injury Family Interview (Research and Training Center on Head Trauma and Stroke, New York University Medical Center, Rusk Institute of Rehabilitation Medicine 1992); J. Kreutzer et al., General Health and History Questionnaire (Richmond, VA, Rehabilitation Research and Training Center on Severe Traumatic Brain Injury, Medical College of Virginia 1987). 8 B.H. Stern, Lay Witnesses in a Traumatic Brain Injury Case, 19 Trial Dipl. J. 205 (July/August 1996). 9 R.C. Eichler, Preserving Highway Accident Data, Claims, July 1996, at R.N. Malmsbury & J.J. Eubanks, Damage and/or Impact Absorber (Isolator) Movements Observed in Low Speed Crash Tests Involving Ford Escorts, SAE ; G.P. Siegmund et al., Characteristics of Specific Automobile Bumpers in Low Velocity Impacts, SAE Waterson v. General Motors Corp., 111 N.J. 238 (N.J. 1988); Schwarze v. Mulrooney, 291 N.J. Super. 530 (N.J. Super. Ct. App. Div. 1996). 12 J.R. Crandall et al., Differing Patterns of Head and Facial Injury with Airbag and/or Belt Restrained Drivers in Frontal Collisions, in Advances in Occupant Restraint Technologies

6 (materials for joint AAAM-IRCOBI special session, Lion, France, September 22, 1994); D.J. Dalmotas, Mechanisms of Injury to Vehicle Occupants Restrained by Three-Point Seat Belts (in proceedings of the 24th STAPP Car Crash Conference, Troy, Michigan, Society of Automotive Engineers, October 15-17, 1980, at ); P. Thomas, Head and Torso Injuries to Restrained Drivers from the Steering System (in proceedings of the 1987 International Research Council on Biokinetics of Impacts Conference on the Biomechanics of Impacts, Birmingham (UK), September 8-10, 1987, at 73-89). Reprinted by permission of Trial Diplomacy Journal (1997)

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