Sequence of Evidence and Witnesses in a Traumatic Brain Injury Case

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1 Sequence of Evidence and Witnesses in a Traumatic Brain Injury Case Sequence of Evidence and Witnesses in a Traumatic Brain Injury Case Who's on First? Princeton, New Jersey Trial Diplomacy Journal, Vol. 20, (1997) Bruce H. Stern The trial of a traumatic brain injury case is unique from other types of injury trials not in the area of proving damages, but in the need to prove the injury itself. With this in mind, the plaintiff's attorney must give careful attention to the order in which witnesses and their testimony appear at trial to establish for the jury the existence of the plaintiff's injury. The properly prepared mild traumatic brain injury (TBI) case usually will take one and a half to three weeks of trial to present. It will include numerous witnesses as well as medical experts in the fields of neurology, neuropsychology, neuropsychiatry, and physiatry as well as vocational experts and life care planners.1 In cases involving low-impact accidents, there usually will be accident reconstruction and biomechanical engineers as well. Determining the sequence in which to present these lay and expert witnesses is a formidable task for plaintiff's trial counsel, and this article presents a framework in which to make the decisions regarding that sequence. In many respects, the trial of a TBI case is no different than the trial of any other injury case. No matter what type of injury case you are trying--whether it be a catastrophic quadriplegic case, an operated lumbar herniated disc case, a soft-tissue case. or a TBI case the elements of damages are the same. In all these cases the injured person is entitled to recover compensation for pain and suffering, disability and impairment, and loss of enjoyment of life, as well as economic losses. Therefore, regardless of the type of case, the elements of damages are the same. No matter what type of case it is, the trial attorney still must prove those elements. How are these damages proven? By demonstrating the changes in the quality of the person's life since the accident. The jury must be told about the types of activities in which the person liked to engage and the things that made his or her life special and how the injuries have affected the quality of that person's life after the accident in terms of limitations and disabilities. This is true of any case. In that respect, the trial of a mild TBI case is no different than any other damage case. On the other hand, it is quite different. While in the other cases the before-and-after evidence is used to prove the elements of damages, in the TBI case that proof is used not only to prove the damages but more importantly to prove the injury itself. When representing a person with a mild TBI, the attorney usually represents a client who has suffered minimal if any loss of consciousness; whose neurodiagnostic studies such as CAT scans, MRIs, and EEGs are all normal; and whose neurologic examination is normal.2 Also, the client, in the short run, looks, acts, and sounds quite normal. Therefore, it is the before-and-after evidence that not only proves the elements of damages, as in other cases, but actually proves the injury itself. It is with this information as background and as a foundation that a decision can be made as to which witnesses and in what order those witnesses are to be presented to effectively prove the case--that is, to prove that the client suffered a TBI as a result of the defendant's negligence. Psychologists' theories of primacy and recency are taught in every trial advocacy class. Jurors, like other people, remember that which was taught first and that which was taught last. Thus, in a trial, an

2 attorney must put on the strongest evidence first and last. EARLY LAY WITNESS TESTIMONY Lay witnesses are the very best witnesses a plaintiff has in the mild TBI case.3 Both plaintiff and defendant are going to have highly qualified experts to testify as to the plaintiff's condition. Often this battle of experts will result in a nullification by the jury. On the other hand, lay witnesses are extremely effective and are not susceptible to cross-examination by defense counsel. Thus, in presenting the case, it is essential to put on first a strong lay witness who can testify regarding the plaintiff's physical and cognitive condition prior to the incident. The trial attorney must review the witness list to present the very best and most effective lay witness first. This should be a person who has known the plaintiff for quite some time--either a coworker, a childhood friend, or a social acquaintance. It is also helpful if this lay witness has remained in touch with theplaintiff following the incident that caused the injuries. The first witness presents a clear contrast between the plaintiff's condition before and after the traumatic event. In those instances where no one witness can provide a vivid before-and-after picture, the plaintiff's attorney should start with a strong "before" witness and follow with an equally strong "after" witness. As with any rule, there are exceptions to using the "strong lay witness first" method. In those cases where the plaintiff has had a long relationship with a family doctor, the plaintiff's attorney should call the family doctor as one of the first witnesses--especially if the doctor either did not treat the plaintiff after the accident or saw the plaintiff after the accident but, based on his or her concern for the client, referred the client to a specialist. It is virtually impossible to cross-examine a treating doctor with regard to treatment prior to the traumatic event. The doctor's office notes, obviously written before the accident, are unassailable. If those office notes are devoid of any references to neck pain, back pain, psychological problems, headaches, and the like, the family doctor presents a strong first witness. One more piece of advice with regard to lay witnesses: Consider calling a lay witness to testify first every day during the case. The theory of primacy is equally in force, and the jury becomes conditioned to expect every morning to be presented with a lay witness who will testify as to what the plaintiff was like before and/or after the injury. CALLING THE INVESTIGATING POLICE OFFICER Following the early lay witness testimony, in those instances where there was a significant impact during the accident, plaintiff's counsel should present the investigating police officer who can document that substantial impact. In cases where there was a low-impact accident, and therefore very little corresponding damage, it would be better to call the investigating police officer in the middle of the witness sequence as opposed to the beginning. Under no circumstances should the plaintiff's attorney omit calling the police officer. If the plaintiff doesn't, the defense will. Better to show that the investigating police officer is the plaintiff's witness rather than the defendant's. MEDICAL WITNESSES Calling All Treating Physicians To keep costs to a minimum, trial lawyers generally call fewer rather than more expert witnesses. The trend is to have a later treating doctor or a "forensic" expert witness who has examined all the medical records generalize and testify to the plaintiff's entire past history. In the mild TBI case, this is usually a mistake. Where the client has continually complained of attention, memory, and concentration deficits or had physical complaints such as headaches, it is important to call many, if not all, the treating medical physicians even when these doctors misdiagnosed the plaintiff's condition. It is important to show that the plaintiff's complaints existed immediately after the trauma. It is also important to show

3 that this claim was not generated by trial counsel and his or her team of experts, but that it was documented from the very beginning. To this end, rather than placing into evidence the hospital records, plaintiff's counsel should strongly consider calling the emergency room physician. Neurologists and Neuropsychologists The heart of the plaintiff's medical presentation in the mild TBI case typically will be presented by the neurologist and the neuropsychologist. As almost by definition the mild TBI patient has had negative neurodiagnostic studies and normal neurological examinations, usually the only proof of a mild brain injury is that presented by the neuropsychologist. As a result there is a tendency to call only the neuropsychologist, since one's neurologist's report is generally and typically benign. But the neuropsychologist is going to have to carry the entire case in those instances. Thus, it is important, nevertheless, to call the treating neurologist as a witness prior to calling the treating neuropsychologist. Why? No matter which expert is called to testify, that witness is going to have to explain away the normal neurologic exam, the normal neurodiagnostic studies, the lack of or minimal loss of consciousness, and all the other problems that are inherent in trying these mild TBI cases. The neuropsychologist has too much of a burden as it is. Thus, it is important to have the treating neurologist carry this aspect of the case and deflect some of the cross-examination. It is important to select a well-qualified neurologist who can testify and explain why the lack of objective findings, other than the neuropsychological data, does not as a matter of course rule out a mild TBI. It is important for the neurologist, in the first instance, to explain to the jury why it is expected that the neurodiagnostic testing would be normal, why the neurologic examination is normal, and how the dynamics of a brain injury work and why it is not necessary to suffer a loss of consciousness. It is also important that the neurologist explain that the present-day mental status testing of the neurologist is not sensitive enough to detect these subtle but very real deficits. The neurologist must explain to the jury why he or she referred the plaintiff to the neuropsychologist for testing to make the diagnosis. Once the plaintiff's neurologist has laid this foundation, it is time to call the neuropsychologist. Physiatrists Strong consideration should be given to using a physiatrist in place of the neurologist. Physiatrists are trained in and specialize in rehabilitative medicine. This practice is primarily directed to rehabilitating the patient who has suffered orthopedic and neurologic injuries, including those with acquired TBI. Conversely, many neurologists' practices are directed toward the treatment of other neurological diseases and not primarily the treatment of mild TBI. While neurologists have the expertise with regard to interpreting EEGs, fewer direct their clinical practices to the treatment of mild TBI. Neuropsychiatrists In the past, very little consideration was given to the use of the psychiatrist or the neuropsychiatrist. Often, it was the defense that would call a psychiatrist, who had a medical degree, to dismiss and downplay the testimony of the plaintiff's neuropsychologist. Thus, in the plaintiff's case, the psychiatrist would be called on rebuttal to offset the defense psychiatrist's testimony. Over the past few years, neuropsychiatry has emerged as a specialized field of psychiatry.4 Consideration should therefore be given to calling the neuropsychiatrist to compliment the testimony of the neurologist and/or the physiatrist.5 Biomechanical Engineers Today, in defense of TBI cases, defendants are retaining biomechanical engineers to assert, in lowimpact cases, that the severity of the collision was not sufficient to cause the TBI alleged by the

4 plaintiff. Also, in those states that permit a seatbelt defense, defendants are retaining these accident reconstruction/biomechanical engineers to demonstrate that the TBI sustained by the plaintiff would not have occurred had the plaintiff been wearing a seatbelt at the time of the collision. To combat this defense, neurolawyers are now retaining their own accident reconstruction/biomechanical engineers. The biomechanical engineer will explain to the jury how the brain is injured as a result of a traumatic event and discuss the rotational and linear forces applied to the brain. (To validate this witness's expertise, it is sound advice to call the biomechanical engineer after the neurologist or physiatrist has testified regarding the brain's anatomy and how the brain can be injured. Thus, when the jury hears the biomechanical engineer's testimony, it will be testimony with which the jury is familiar, having already heard it at least once when the treating neurologist or physiatrist testified.) This testimony regarding how the brain is injured provides a wonderful neurologic foundation and an excellent framework from which the biomechanical engineer can build to demonstrate that the forces in the accident were in fact sufficient to cause the brain injury. In addition, in those instances where the neuropsychologist is called to explain the brain's anatomy and the forces necessary to cause the brain injury, the engineering testimony will validate the neuropsychologist's testimony. It is therefore urged that the biomechanical engineer be called before the neuropsychologist in those instances where the biomechanical engineer is called during the direct case. Some thought should be given to calling the biomechanical engineer not as a witness during the direct case, but on rebuttal, after the defense has already presented its case. This is clearly a judgment call and will depend on the factors in the individual case. Because in cases involving lowimpact collisions the result is so fact dependent, the defense may, on cross-examination, obtain concessions from the plaintiff's biomechanical engineer that, based on certain factors, the accident might not have been sufficient to cause the accident. Thus, if this is a possibility, it may be better to wait for the defense to call its own biomechanical engineer. In this way, the plaintiff's attorney has the opportunity to crossexamine the defense biomechanical engineer and then is in the position to determine whether rebuttal testimony is even needed. Medical Witnesses Attesting to Other Injuries Normally in the TBI case, the brain injury was not the only one sustained by the plaintiff. Usually the plaintiff also has suffered some type of orthopedic or other neurologic injury such as a flexionextension injury of the cervical spine, a herniated disc, or even, in more severe cases, fractures. In those circumstances, the medical witnesses attesting to those injuries should be called prior to the medical testimony needed to persuade the jury that the plaintiff has sustained a TBI. Certainly, in the case of fractures or objectively documented cervical or lumbar injuries, the jury will more easily accept that the brain injuries occurred. Furthermore, the orthopedist can lay the initial groundwork demonstrating the biomechanics that were necessary for the plaintiff's injuries to occur. In the case of flexion-extension injuries or herniated cervical and lumbar discs, the orthopedic surgeon testimony will set forth the same mechanisms necessary for the plaintiff to sustain those injuries that will later be presented to prove the occurrence of the TBI. CALLING THE PLAINTIFF AND HIS OR HER FAMILY If the full medical and neuropsychological foundation is laid as set out above, the jury will appreciate, first, the testimony of the lay witnesses and, next, the testimony of the medical experts that substantiates the reason for the lay witnesses before-and-after testimony. It is then time to call the plaintiff and his or her family. In 1992, Kenneth I. Kolpan wrote "To Be Seen or Not To Be Seen" in the Journal of Head Trauma

5 Rehabilitation.6 There he discussed not having the plaintiff sit in the courtroom throughout the trial. This is good advice; but again, as with any rule, there are always exceptions. In the event that there is a sympathetic defendant, the plaintiff's attorney should consider having his or her client sit through a good portion of the testimony. If a strong early foundation has been laid, the jury will then continue to sympathize with the plaintiff. ECONOMIC TESTIMONY Following the testimony of the lay witnesses, the medical experts, and the plaintiff and his or her family, the plaintiff's attorney should present the hard economic testimony--the testimony of the vocational experts, life care planner, and economist. FINALE As with any presentation or play, a strong finale is most desirable at trial. To this end, the concluding witness should be the plaintiff's spouse, significant other, or most significant family member. The plaintiff should close with a witness who is strong, who can summarize the entire case, and who can bring emotion to the case at its conclusion. THE BEST LAID PLANS... The above discussion presents a framework in which to present effectively the witnesses needed to prove the mild TBI case. If only assignment clerks and presiding judges would adhere to the schedule. More importantly, if only it were possible to guarantee a doctor's appearance at a set date and time. Unfortunately, it's not so easy to line up the doctors and other experts exactly on the dates needed. Even when a schedule is set, some witnesses run over, the judge has a personal problem that he or she has to attend to, or some other matter has to be heard in the middle of the case. Instead of being presented in a well-rehearsed and logical fashion, cases often are put together like jigsaw puzzle pieces, out of place and order. In such cases, plaintiff's counsel should start with the best lay witness, and the neurologist always should precede the neuropsychologist. If the plaintiff's attorney can manage these two details, no matter what other witnesses are called, he or she can present an effective TBI case. ENDNOTES 1 B.H. Stern, Representing a Mildly Brain-Injured Client: A Multiple-Disciplinary Approach, Nat'l Trial Law., N.J. Trial Law., May Mild Traumatic Brain Injury Committee, Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine, Definition of Mild Traumatic Brain Injury, 8 J. Head Trauma Rehab. 86 (1993). 3 B.H. Stern, Lay Witnesses in a Traumatic Brain Injury Case, 19 Trial Dipl. J. 205 (1996). 4 J.M. Silver et al., Neuropsychiatry of Traumatic Brain Injury (American Psychiatric Press, Inc. 1994). 5. J.M. Silver & T.W. McAllister, Forensic Issues in the Neuropsychiatric Evaluation of the Patient with Mild Traumatic Brain Injury, 9 J. Neuropsychiatry 102 (1997). 6 K. Kolpan, To Be Seen or Not to Be Seen, 7 J. Head Trauma Rehab. 96 (1992).

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