Specializing in Personal Injury and Wrongful Death Litigation
 with Emphasis on Trauma to the Brain

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WHAT CLIENT'S ATTORNEY NEEDS TO KNOW TO HANDLE TBI CASES

 © David L. Goldin, 2016

 

How Does Attorney's Brain Best Explain Client's Brain Injuries To Jurors' Brains?

 

Part One:  How the Brain Works.

 

This article applies to all types of traumatic brain injury (TBI), mild, moderate, and severe. The existence of brain injuries is usually apparent in moderate and severe TBI, but the extent of damage caused by the trauma is not.  In mild TBI (mTBI), neither the brain injury itself, nor the extent of damage to the brain, is clear. To get justice (fair compensation for the harm), an intimate knowledge of the brain is of singular importance. Handling a brain injury case without knowing about the brain is like trying to fix a clock without knowing what makes it tick. 

 

This article assumes someone other than the client is at fault; liability is not at issue.

 

The article is largely in outline form and is divided into two parts.  Part One describes brain anatomy, and how the brain works before and after undergoing trauma.  Part Two addresses how to handle brain injury litigation (using California law).  mTBI can be hard to prove, and Part Two focuses on that.

 

There is so much material on the Internet, a lawyer's view (mine) of how the brain works is clearly extraneous. Nonetheless, having written numerous articles about the brain, the decision to provide my thoughts about how the brain works is my attempt to consolidate much of that information in an updated and current report.

 

This article, like the others, is intended to provide information and support to survivors of brain injury, and their families and loved ones.  Brain injury is scary. If you feel frightened by your invisible pain and disability, if you and others feel you are a different person from the one you have lived with all your life (yourself), this is a frequent outcome of the lasting effects of brain injury.  If you are part of the miserable minority who suffer long-term consequences from a concussion, or mild TBI, you are not alone. 

 

It is my hope you and your attorney benefit from this article in handling your brain injury case together.

 

If you would like to talk with me, please call or email my office.

 

   

 

(Click on photos to enlarge)

 

  1. Facts of Trauma

    1. Motor vehicle accident (MVA), slip and fall, assault, product defect, medical malpractice, etc

    2. Forces involved; effect on brain.

  1. Linear vs. rotational impact. Mechanism of brain injury (B.I.) forces on the brain; motion/vibration of brain within the skull.

  2. Purely linear forces can't cause a concussion. See, Stanford Magazine. ("Our brains sit in our skulls surrounded by cerebrospinal fluid, Camarillo explains. "You've got this kind of gelatinous blob in a fluid floating in a sealed pressure vessel," he says. A concussion occurs when the brain is sloshed and bounced around in this fluid. Purely linear forces won't cause any sloshing, and thus can't cause a concussion. For example, if you put a head in a vise and tightened it, you'd crack the skull but wouldn't cause a concussion. Camarillo uses the analogy of a snow globe: If you push a snow globe in a straight line, no matter how fast or hard, "the snowflakes will stay perfectly still. They don't move at all," he says. However, the slightest rotation will cause a flurry.")

  3. Consistency of brain tissue--avocado, jello, or any other gelatinous substance.

  4. Grey and white matter have different densities; damage at intersection.

  5. Whiplash (coup-contrecoup) causing brain injuries (B.I), with or without hitting head.

  6. Biomechanical expert re: testing standards measuring the effect of forces on the brain.

  1. How does the brain do what it does? See, The Human Memory, for an excellent detailed description of how our brains work, focusing on memory.

  1. Interaction of neurons in brain. All senses (seeing, hearing, touching, smelling, and tasting), enter the brain as spatial and temporal patterns of electro-chemical activity. This sequence of patterns is all the brain knows. There is no image, sound, touch, smell, or taste in the brain, and the brain itself does not experience pain.

  2. In addition to our senses, the brain controls all of our movements, emotions, feelings, thoughts, and cognition. There are one hundred billion or so neurons in each of our brains, and each neuron has connections (synapses) with from five thousand to two hundred thousand other neurons (depending on who is counting). Putting that in context, there are at least five hundred trillion connections in the human brain. There are more than ten thousand types of neurons.

  3. Cells that fire together, wire together. Certain neurotransmitters are excititory, others are inhibitory, and still others are both. So long as the pattern of neuronal activity is taking place, the axon fires when functionally related neurons connect together to form neuro-networks (Cf., sequences of related patterns). These connections are not static and may change over time. The brain slightly rewires itself with each new experience and each remembered fact or event.  See, The Human Memory.

  4. Cortex (grey matter) consists of six layers, in hierarchical form, and has the thickness of about six business cards, and flattened out, the size of an unfolded dinner napkin.

  5. Myelin (white matter) insulates axons, and facilitates electrical signaling of patterns in brain.

  6. Selective parts of the brain (and primary functions): thalamus (relays signals from all senses, except smell, to different areas in the cortex for storage as memories); basal ganglia (clusters of nerve cells surrounding the thalamus initiate and integrate movements); hippocampus (vital for storage of memories, see, HM, the Man with No Memory.); amygdala (limbic area - source of emotions); corpus colossum (divides brain into left and right spheres); Broca's area (speech); Weirnicke's area (understand speech); and frontal lobes (executive functions and control of emotions).

  7. Central role of executive functions (judgment, decision making, multi-tasking, control of emotions, speed of processing, etc.). Cf., conductor of orchestra. Phineas Gage is history's first known case suggesting a tie between brain trauma to frontal lobes and personality changes (act like different person. See, Phineas Gage book.

 

Phineas Gage

  1. Limbic area, which includes amygdala, is the emotional core of the brain: fear, anger, love, empathy, and other emotions reside here. Emotion strengthens memories; eg., where were you when you first learned about 9-11?

  2. Lobes of cerebral cortex (frontal, temporal, parietal and occipital). Which senses primarily are located in which lobes? What happens in association areas of cortex? Where are memories found in the brain?  How do you explain this to a jury?

  3. Left and right sides of brain. See, e.g., Drawing from the Right Side of the Brain. There is a crossover from left to right, and vice versa, of all communications to and from the brain. All of our senses, movements and cognition on the left side of the brain come from and go to the right side of the body, and vice versa. Most structures in the brain are bilateral.

  4. Neurotransmitters and synapses-know the gap. See, here.

  5. Inputs to brain from all of the senses are stored in the synapses in different regions of the cortex. These inputs are retrieved as memories through feedback of the stored information. Memories allow us to make predictions about the world which, in the opinion of some, is the core of intelligence. There are at least as many feedback connections in the brain as there are feedforward connections. See, On Intelligence.  Jeff Hawkins, 2004.

  6. A neuron collects inputs from its synapses, and combines these inputs together to decide when to output a spike to other neurons. A typical neuron can do this and reset itself in about five milliseconds (5 ms) or around two hundred times per second. Computers by comparison can compute billions of operations each second. Why can't computers do many basic operations as well as we do (e.g., catch a ball)? Computers operate by computing enormous amounts of data to find an exact match, whereas our brains use memories already stored in the brain, and automatically retrieve the memories when similar information is available. See, On Intelligence.

  7. Evolution of the brain. What several billion years can do.

  8. Brain is 2-3% of body weight, and requires 25- 30% of total blood in the body for oxygenation and energy requirements. 

  9. Neuroplasticity has been proven to occur in the hippocampus by showing the development of new neurons in this area of the brain. Cf., migration of cells in cerebral cortex of developing baby's brain. Helen Keller's senses were critically impacted (blind and deaf) yet she gradually came to perceive the world the same as others with all their senses. How did her brain do this?

  10. It has recently been shown in animal testing the possibility many areas of the brain might be able to repair themselves. The process involves removing the dead brain tissue, treating the dead tissue with Doublecortin-positive cells, and then reinserting the treated tissue back into the client's brain where it again can function. TED talk; Jocelyn Block.

  11. How does the location of damage in the brain affect functioning? Which brain areas control what functions? In Spectre, the most recent Bond movie, the villain tries in vain to find where in Bond's brain a specific function is located.

  12. Sense of touch and motor activity are stored in different areas of the brain. This is illustrated by the "homunculus" (little person, in Latin) of each. Motor nerves are found in the posterior frontal lobes, and sensory nerves are found in the somatosensory area of the parietal lobes. Each homunculus depicts the body parts in terms of the range of motion, and extent of feelings sensations, rather than the physical size of the body part (from outside of the brain). See, NPR. (it helps to look at the cartoon-lke drawings of the homunculus). This is how the brain views itself from inside the brain. 

  13. What is the definition of the following terms relating to damage to the brain? Agnosia; agraphia; alexia; amnesia; anosmia; anoxia; aphasia; dysarthria; dysphagia. See, Google (or another search engine) for listing of medical dictionaries.

  14. The brain largely remains a mystery. Sequencing DNA is simple compared to understanding the brain. See, "You are Your Brain.

  15. Before reading further, you may want to watch some of the brain's actions and operations, discussed above. See, the Brain Tour link of the Alzheimer's Association.

   

  1. TBI, Even "Mild" TBI, Causes Brain Damage.

  1. Definitions of mild TBI (mTBI).

  1. Meaning of mTBI--Client won't die from this trauma. The term, mild brain injury, can be misleading. The word "mild" is used in reference to the severity of the initial physical trauma causing the injury. Mild does not mean the severity of the consequences of the injury are not serious. See, http://www.biausa.org/, http://www.aans.org/, http://www.cdc.gov/headsup/index.html, http://headlaw.com/Articles/mild-brain-injury.htm.

  2. Definition of concussion. Loss of consciousness (LOC), post-traumatic amnesia (PTA), disorientation or other indicia of confusion at time of trauma. Each suffices for a diagnosis of concussion. See, previous paragraph 2 (a)(i) for references.

  3. Concussion = mTBI

  4. The DSM-5 (Diagnostic and Statistical Mental Disorders, 5th Edition, 2013), provides diagnostic criteria and its own definitions of B.I., namely, neurocognitive disorder (NCD. Under the DSM-5, there are mild and major NCDs. Mild NCD is determined by cognitive testing results within one to two standard deviations of the mean, that is, between the third and 16th percentile. Major NCD is defined by test results of three standard deviations or more from the norm, that is, third percentile or worse. See, DSM-5 at Amazon.

  5. The DSM-5 has six domains, and associated subdomains, for cognitive testing. The six domains are: Executive function; perceptual motor function; language; learning and memory; social cognition; and complex attention. See, DSM-5. For a diagramatic representation of domains and subdomains, See, Nature.

  1. Can the effect of TBI on the brain worsen in days to months after trauma?

  1. Defense may suggest damage to the brain occurs only at time of impact, and if no complaints then, later symptoms are not related to TBI.  Is this a valid argument?

  2. Chemical assault or cascade of neurons National Institute of Neurological Disorders and Stroke (NINDS). See, TBI.

  3. Other delayed damage to brain caused by TBI. See, Journals. Acute neurometabolic changes after mTBI increase demands of the brain for energy. This in turn can result in an uncoupling or mismatch between energy supply and demand. The impaired metabolism lasts seven to 10 days, and can cause damage to microstructure components of the brains such as dendrites and axons. Traumatic Brain Injury: A Disease Process Not an Event.

  1. Permanency of mTBI injuries.

  1. 10% to 30% of those suffering mTBI do not recover from some or all brain injury symptoms. See, A Review of Magnetic Resonance Imaging and Diffusion Tensor Imaging Findings in Mild Traumatic Brain Injury, October 21, 2013, (Imaging Findings). Ronald Ruff, a neuropsychologist in San Francisco, coined the term "miserable minority," to refer to the 15%, in Dr. Ruff's opinion, whose symptoms of mTBI do not go away. (Dr. Ruff started the San Diego Brain Injury Foundation in 1983 shortly before moving to San Francisco.)

  2. Others have contended no more than 5% of those suffering mTBI do not recover fully from brain injury symptoms. See, Mild Traumatic Brain Injury and Postconcussion Syndrome: The New Evidence Base for Diagnosis and Treatment (AACN Workshop Series); Michael A. McCrea.

  3. Conceptualizing Brain Injury as a Chronic Disease. See, here.

  4. See, Longitudinal Follow-Up of Patients with Traumatic Brain Injury: Outcome at Two, Five, and Ten Years Post Injury. Overall, problems that were evident at two years post-injury persisted until (were still present at) ten years post-injury.

  5. Poor recovery. See, Prevalence and Predictors of Poor Recovery from Mild Traumatic Brain Injury.

  6. Mild Brain Injury Litigation, Making the Invisible Visible. Headlaw article. See, Youtube video. The article is also included in the 2014 coursebook, Law and Neuroscience, Vanderbilt.

  1. Structural scans: CT and MRI.

  1. Structural scans cannot directly show microscopic damage in the brain.

  2. Can a dead person have a normal MRI scan?

  3. Even small macroscopic lesions, which should be visible, may not show up on an MRI, depending on resolution of the image. Resolution is determined by the power of the magnet used in the MRI machine. The size of the slices of the brain images selected for/on the MRI machine, also determines if any macroscopic lesions will be found.

  4. mTBI can be divided into two categories, complicated and uncomplicated. Complicated mTBI is a brain injury which can be visualized on a structural CT or MRI scan. Testing appears to show there are no significant differences between the neurocognitive effects of complicated and uncomplicated mTBI, other than a longer delay in return to work for those suffering a complicated mTBI (36 versus 16 days). Outcome from Complicated versus Uncomplicated Mild Traumatic Brain Injury, 2012 (Complicated versus Uncomplicated).

  5. After running a battery of neuropsychological tests between the groups, the complicated mTBI group performed better on verbal learning, memory, and executive functioning; and worse on a test of verbal fluency. The specific tests administered are: verbal learning and memory (RAVLT); executive functioning (Stroop); and verbal fluency (Animal Naming). Does this mean it does not matter whether lesions show up on a structural MRI or CT scan, in evaluating whether functional deficits resulted from an mTBI?

  6. By definition, uncomplicated mTBI involves microscopic lesions invisible on structural scans. Voxels cannot be seen by human eye if less than 1mm. (A voxel is three-dimensional analogue of a pixel. A pixel is one of  the tiny dots that make up representation of an image in computer memory.)

  7. Objective scan evidence of intracranial trauma is crucial to guide immediate treatment decisions and is a powerful predictor of morbidity in moderate and severe TBI. See, Complicated versus Uncomplicated.

  1. Mirror neurons and mirroring.

   

  1. Mirror neurons are a type of brain cell that responds equally when we perform an action and when we witness someone else performing the same action. See, The Mind's Mirror. A mirror neuron is a neuron that fires both when an animal acts and when the animal observes the same action performed by another. 

  2. There is ongoing research as to humans and mirror neurons. Brain activity consistent with that of mirror neurons has been found in the pre-motor cortex, the supplementary motor area, the primary metasensory cortex, and the inferior parietal cortex. See, Wikipedia.

  3. Examples of the role of mirror neurons: You're walking through a park when out of nowhere, the man in front of you gets smacked by an errant Frisbee. Automatically, you recoil in sympathy. Or you're watching a race and you feel your own heart racing with excitement as the runners vie to cross the finish line first. Or you see a woman sniff some unfamiliar food and wrinkle her nose in disgust. Suddenly, your own stomach turns at the thought of the meal. http://www.apa.org/monitor/oct05/mirror.aspx.

  4. The existence of mirror neurons in the human brain may explain why mirroring is helpful in litigation. There is no better way to understand a potential trial witness than to step into her/his shoes, and preparing for trial by playing that person's role in the case. The Gerry Spence Trial Lawyer College teaches attorneys to use mirroring to feel they are in the skin of different trial witnesses.

  5. The relationship between mirror neurons and mirroring, suggests the brain is set up to respond to this activity. Role playing, or mirroring, appears to be compatible with how brains work.  

 

 

 

Part Two:  Litigating Brain Injury Cases

  1. Evidence of TBI at Trial - Symptoms.

  1. Global listing of TBI symptoms. See, here.

  1. Physical symptoms.

  2. Emotional and behavioral symptoms.

  3. Cognitive and communication symptoms.

  1. TBI symptoms endorsed by client. See, Form re: Changes and Problems after Brain Injury. Document here.

  1. Attorney-client privilege: Do not give this form to anyone other than your attorney.

  2. Update periodically throughout case.

  1. Causation = Substantial Factor.

  1. Can client prove trauma is a substantial factor in causing client's symptoms of TBI? CACI 430.

  1. Burden of proof is more likely true than not true. CACI 200.

  2. What is "substantial"? Did trauma contribute to harm?

  1. Differential Diagnosis.

  1. If insufficient proof of mTBI, what other diagnoses do these symptoms support? PTSD, depression, and other co-morbid conditions, may be present in those suffering mTBI. See, here.

  2. Chronic pain may cause fundamental rewiring of nervous system.

  3. There is a new test of the blood of the victim which if taken within seven days of the trauma appears to be highly accurate (97% of 600 test subjects), in diagnosing concussion

  1. Post Traumatic Stress Disorder

  1. PTSD may cause fundamental rewiring of the nervous system, just like TBI.

  2. TBI and PTSD can look similar at a cellular level. There is significant overlap of TBI and PTSD, including the effect of one on the other. mTBI may lead to increased risk of PTSD and exacerbation of PTSD symptoms. If TBI causes reduced consciousness or amnesia for events at time of trauma, how is it possible to be stressed by the events client cannot recall?

  3. "Neural and psychosocial factors influence both the development and course of PTSD and recovery from mTBI. mTBI has a clear neurophysiological basis, but its recovery may be influenced by unresolved neuropathological features, subsequent neural insults (e.g., repeated exposures to blasts in military veterans and repetitive sports concussion in civilians), psychosocial factors such as depression and PTSD, symptom attributions, expectations for recovery, and contextual factors such as financial incentives, work status, family circumstances, and other stressors. The development and course of PTSD likewise is determined not just by the exposure to a psychologically traumatic event, but also by the availability of external (e.g., social support) and internal (e.g., adaptive coping strategies) resources, neural factors (e.g., brain and neurocognitive integrity),concurrent physical injury (including brain injury), and exposure to subsequent stressors (e.g., multiple military deployments, repetitive episodes of domestic violence.) (Citation to references omitted)." See, PTSD and Mild Traumatic Brain Injury, Jennifer J. Vasterling, Richard A. Bryant, Terrence M. Keane. 2012. PTSD-mTBI.

  4. PTSD patients whose symptoms increase over time, show accelerated atrophy throughout the brain, particularly brain stem, frontal and temporal lobes. See article here.

  5. Thus, even when PTSD and mTBI are considered individually, recovery from psychological trauma and brain injury are typically determined by multiple factors.  When PTSD and mTBI are considered in aggregate, the determinants of impairment arising from PTSD and mTBI will likely be even more complex. See, PTSD and Mild Traumatic Brain Injury.

  6. Curing anxiety and phobias, such as PTSD, by blocking norepinephrine. Emotional memory is not permanent. Propranolol, if administered during six brief trauma reactivation sessions, significantly improves PTSD symptoms without erasing historical memory, only the fear associated with it. See, A Drug to Cure Pain, New York Times, January 22, 2016. Time will tell if this new treatment is effective.

 

  1. Diagnoses by Defendant's Retained Medical Experts.

  1. Get defense experts to concede indisputable general propositions. Force defense to agree to rules of the road. If defendant breaks rules and hurts someone, he/she is responsible. Individualize justice. See, Rules of the Road. Rick Friedman and Patrick Malone, 2006 (Friedman).

  2. No one is entitled to needlessly endanger the public. (Rules of the Road).

  3. Code of ethics of various professions re: forensic work.

  4. Check the applicable manual for neuropsychological tests administered to client. Were the tests administered properly or scored in accordance with manual?

  5. Reliable authority literature to cross-examine. (Evidence Code 721 (b)(3)).

  1. Client's experts will need to set this up. Are they willing to do so? Is client's expert concerned about being cross-examined by the same resource?

  1. Defense medical examination of client compare to client's treatment by her/his healthcare providers. What would defense expert do differently if client was this doctor's patient? Who does defense doctor send his report to? Did defendant's retained expert doctor ask client how injury affects quality of client's life?

  1. How to deal with dishonest opinion of retained defense expert. Make it clear these experts make their living in court. Opinions for sale! There should be extensive prior testimony (especially depositions) available to impeach.

  2. It is imperative to record client's examination by defense doctor. In California, client's physical exam can be videotaped, and attorney may be present. Client's mental examination by the defense doctor can be audiotaped only. Make sure this is done (and the recording equipment is working). Some defense doctors make their living testifying for defense insurance companies, rather than practicing medicine. These paid experts are sometimes willing not only to give false opinions, but also to misstate the facts of what occurred. This is not ok.  See, here.

  1. Psychological Tests and Neuropsychological Testing

  1. Personality testing--MMPI.

  1. Multitude of tests. See, The MMPI, MMPI-2 and MMPIA in Court, Kenneth S. Pope, Joyce Seelen, and James N. Butcher, discussing litigation and MMPIs.

  1. Malingering and exaggeration.

  1. Fake Bad Scale. How often are false statements a result of symptoms of TBI? E.g., client is easily fatigued and wants to quit taking the test.

  2. What findings support conclusion client is a liar? Polarize the case; that is, give the jury two clear well-defined choices, is client lying or not? Is client malingering or not? Set this up at deposition by forcing the defense expert to commit to a position. See, Polarizing the Case, Rick Friedman, 2007. (Friedman 2).

  3. Cf., Exaggeration. Almost as damaging to client as lying. Do not exaggerate your symptoms! See, Friedman 2.

  1. Cf., Somatoform disorder. This is a legitimate illness and if true, must be dealt with honestly. See, Susceptibility. It is not faking.

  1. Discovery of the results of client's defense medical exam.

  1. Neuropsychological testing: List of neuropsychological tests. See, A Compendium of Neuropsychological Tests. Esther Strauss, Elizabeth M.S. Sherman, and Otfried Spreen.  2006.

  1. Assists in making diagnosis of brain injury.

  2. Does client's treating or retained neurologist require neuropsychological test results before giving an opinion or diagnosis that client's lasting symptoms are due to TBI?

  

  1. Proof by Witnesses of Client's Brain Injury, or Other Conditions, Caused by Trauma.

  1. Proof by before and after lay witnesses.

  1. What are most important considerations in selecting the before and after lay witnesses? Why do these witnesses provide the most important evidence at trial in mTBI case? If symptoms may not be due to TBI, experts become more important. Why? Experts will be the ones describing diagnosis, and likelihood of a fix or cure of the diagnosed condition(s).

  2. Each lay witness tells a different part of the story. Let the story, not argument of attorneys, assign fault and damages. Use good analogies. It is the feelings and ideas they (analogies) evoke which make them so powerful. See, Shortcut, John Pollack, 2015.

  3. One witness is sufficient to prove any fact. CACI 107.

  4. Court limitation on the number of lay witnesses -- which witness is best for which symptoms? Coordinate witness scheduling to run smoothly in court. In the right case, bargain for time limitations in lieu of witness preclusion. Especially if defense claims client is malingering, it is essential not to overly restrict the number of client's lay witnesses.

  5. If possible, connect witness stories to illustrate B.I. symptoms consistent with areas of brain identified by experts as having been injured in the traumatic event.

  6. Keep it simple, no wasted thought.

  1. Proof by coordination and agreement of client's experts from different disciplines: neurologist, radiologist, neuroradiologist, psychiatrist, neuropsychiatrist, psychologist, neuropsychologist, speech pathologist, speech therapist, physical therapist, vision specialist, rehabilitation/vocational expert, physiatrist, biomechanical expert, life care planner, case manager, and others.

  1. Before bringing litigation to recover for mTBI, do you have supporting opinions of treating neurologist and others?

  2. At trial, client's neurologist takes lead in explaining client's TBI to jury. Neurologist describes anatomy and functioning of brain to educate jury as to how the brain works. The neurologist explains why, and to what extent, the trauma caused injury to client's brain, referring back to the earlier anatomy lesson to the jury to illustrate the neurologist's opinions.

  3. Expense of these experts can be prohibitive.

  1. Treaters vs. retained experts.

  1. Are client's treating healthcare providers willing to testify? As to what and under what circumstances? Establish publications as reliable authority.

  2. Competent treaters are likely more credible than retained experts, so long as the difference is made clear to the jury.

  1. Proof by specialty scans in mTBI case: MRI/DTI (diffusion tensor imaging); functional scans such as PET, SPECT, and fMRI.

  1. DTI is well-established in the scientific community, makes use of standard MRI machine, preferably 3G, and is just another way to look at MRI results. DTI can show microscopic damage to the axons in the brain (white matter - myelin) consistent with trauma to the brain. How does DTI do that? See, Imaging Findings. What happens if you pour water on a flat surface versus into a channel? How does information get passed between neurons in the brain? Article here.

  2. PET shows glucose metabolism in areas of brain activity. SPECT and fMRI show increased blood flow in areas of brain activity. Both SPECT and fMRI rely on the coupling of cerebral blood flow and neuronal activity. SPECT is a functional nuclear imaging technique used to evaluate regional cerebral performance.

  3. Use of specialty scans at trial- confirmatory and/or consistent with diagnosis of B.I. established by other means. DTI and other functional scans are not diagnostic of TBI by themselves.

  1. Demonstrative Evidence to Prove Brain and/or Other Injuries Caused by Trauma.

  1. Demonstrative evidence used to illustrate witness testimony.

  1. Illustrate verbal testimony of witness to help bring understanding to complex issues.

  2. Must be substantially similar to what happened, likely to help the jury understand the case, and not too prejudicial.

  3. For example, in a brain injury case, use of a human skull to demonstrate how gelatinous brain tissue is damaged by the sharp cribriform plates at the base of the skull as the brain moves back and forth within the skull in whiplash fashion.

  4. Exhibits marked for identification, and used for the purpose of illustrating the witness's testimony, may or may not be admitted into evidence at the court's discretion - keeping the skull out of the jury room during deliberations. Do you want the skull in the jury room?

  1. Computer animations and simulations as demonstrative evidence.

  1. Animations are used to illustrate the witness's testimony or opinion. Simulations are used for the evidence itself. Animations show the expert opinion; simulations are the expert opinion.  See, Cogent Legal, 2011.

  2. Under both California and federal law, it is much easier to obtain permission to show an animation to the jury if the sole purpose of the animation is to explain a witness's testimony, the same way a witness would be allowed to draw on butcher paper in court. See, Cogent Legal, 2011.

  3. Admissibility of a simulation in California under Kelly/Frye, like other such evidence, depends on whether it is generally accepted by experts in the field. Since the simulation itself is the basis of expert opinion, it must meet the same standard as other such evidence. See, Cogent Legal, 2011.

  4. At all times, the court has discretion whether or not to admit the demonstrative evidence. See, California Evidence Code 352, and Federal Rules of Evidence 702.

  1. Timely production of the demonstrative evidence is essential.

  1. If timely produced, the other side has the opportunity to formulate objections early on. Best to have demonstrative evidence ready at the time of deposition of witness who will be using it.

  2. Without having early clearance of the demonstrative evidence, relying on it is risky. It can be expensive to prepare, and will only be usable, even for illustrative purposes, if the judge decides it is substantially similar, and not overly prejudicial.

  3. Demonstrative evidence may also backfire if the jury thinks the client is overreaching.  Litigation is not a game.

  4. In trial, demonstrative evidence can be addressed to as many senses as possible. E.g., the Catholic Church uses all five senses during the course of the mass. During trial, the more the senses of jurors are involved, the more likely the demonstrative evidence will strike a chord with how each juror prefers to process information (seeing, hearing, touching, smelling or tasting).

  5. An explicit visual analogy will generally communicate an idea more quickly and effectively than a vague, abstract description. This is because specific images, especially of something familiar, will trigger bigger and more resonant networks of associated images, ideas, and emotions. See, Shortcut, John Pollack, 2015.

  6. You can now buy a product for $600 which will replicate the smell of another person.  See Addendum.

  1. Pre-existing conditions; CACI 3927.

  1. Review of pre-accident medical records, and other documents, records and reports, which set forth brain injury symptoms. (Use word search for symptoms.)

  2. List client's pre-existing conditions relevant to B.I., or to other injuries producing brain-like symptoms.

  3. Client must voluntarily and timely disclose all such conditions (starting at initial interviews, and no later than onset of discovery). Retainer Agreement requires this disclosure.

  4. The difficulty in objectively distinguishing between organic and non-organic (psychological) causes of post-traumatic symptoms lead to frequent misdiagnosis and contentious litigation. See, World Health Organization Collaborating Centre for Neurotrauma Task Force on mTBI. Also see, Findings in mTBI. Detecting brain abnormalities in mTBI does not mean that other disorders of a more psychogenic origin are not co-morbid with mTBI and equally important to treat.

  5. Pre-existing conditions, aggravated or worsened by harms caused by trauma to client (B.I. or other). See, Pre-existing Conditions and TBI.

  6. Worsened by prior concussion(s).

  1. Client is more susceptible to lasting symptoms of TBI (thin skull plaintiff). CACI 3928.

  1. Review records to determine as many of client's susceptibilities as possible.

  1. Prior concussions - more vulnerable to subsequent brain trauma, and timing issues.  When was previous trauma?

  2. Previous brain injuries in sports. A Parents Guide to Brain Injuries in Sports. This link lists multiple sites discussing the brain, brain damage, and brain resources. (The link was sent to my office by the mentor of an after-school program on behalf of one of her students, Amanda. Thank you, Amanda.)

  3. Chronic traumatic encephalopathy (CTE). See, the movie starring Will Smith, Concussion.

  4. Prior brain injuries in military service.

  5. PTSD, other injuries to body, and pain.

  1. Interrelationship of aggravation of pre-existing conditions and susceptibility. Defendant hit the wrong person!

  2. Convert weakness to strength. Depends on credibility. Be first to acknowledge deficits--rush to disclose.

  1. Multiple injuries caused by the same traumatic event.

  1. Coordinate proof at trial as to each.

  2. Regardless of specific clinical diagnosis of TBI, client's life has permanently changed for the worse. If there is an effective treatment or clients non-brain injuries are not life-changing, the case should not have been filed or should be settled early. See, paragraph 18 (b), below.

  3. Damage to brain can exacerbate injuries to other parts of the body, and vice versa. Damage to brain can be worsened by pain. PTSD and chronic pain may cause fundamental rewiring of the nervous system.

   

  1. Damages

  1. Before/after witnesses: Client is a different person.

  2. Client testifies as to what he/she can still do--be positive.

  3. Client stays away from court in mTBI cases, except to testify.

  4. Treating doctors can explain reasons for client's absence.

  5. Special Damages

  1. Lost past and future earnings past (probable); future (reasonably certain).

  2. Medical past (probable); low past damages may anchor low verdict.

  3. Medical future (reasonably certain).

  4. Effect of liens.

  5. Future availability of Affordable Care Act is speculative.

  6. Effect of Medicare Set Aside requirement.

  7. Effect of limitations on recovery for medical malpractice. See Medical Malpractice Litigation in California:  The Hardest Case.

  8. There are few medical treatments to help the survivor of mTBI. Rest and the avoidance of stress may be all that is available.

  9. Brain itself has tremendous susceptibility to injury. Because of this susceptibility, the tragedy is we do not have any pharmacological treatment for mTBI. Charlie Rose, Brain Series, December 23, 2015; Dr. Eric Kandel, Nobel Laureate.

  10. No one voluntarily undergoes unnecessary brain surgery.

  1. General damages for each of the factors in CACI 3905A. (Past and future physical pain/mental suffering/loss of enjoyment of life/disfigurement/physical impairment/inconvenience/grief/anxiety/humiliation/emotional distress.) Loss of earnings capacity.

  1. Jurors must use their judgment to decide a reasonable amount . . . This amount is client's compensation for harm. Go through all above factors applying to client's case. Defendant must be held accountable.

  2. Different person. Worst injury--Chris Reeve, Still Me.

  3. Client's efforts to persevere. Client is not being deceptive if client continues to work, or otherwise attempts to bravely live her/his life as before injury.  Courage is a virtue.

  4. Difficulties living with ongoing symptoms. Make list: how long lasting, how often experienced, how painful or debilitating? See, David Ball, Damages 3. Client can no longer do what everyone else can do.

  5. What makes people happy? What makes client happy? No one size fits all.

  6. Risk of dementia in future affects client even if not reasonably certain to occur. (Transfer risk from client to defendant of possible/probable events in the future relevant to general damages.)

  7. See, How Trauma Affects Your Brain.

  8. Day In The Life video; start with healthy first. How do you show effects of mTBI on video?

  9. See, Recovery of Damage for Traumatic Brain Injuries to the Miraculous Brain.

  10. Client's only chance--can't come back later for more. Life expectancy. Defendant writes check and it's over.

  11. No one is allowed to mention insurance. CACI 105 and 5001.

  12. Client asks for a lot of money for a lot of damage. Client to use money to make his life better. Money can make life safer and easier.

  1. Life Care Plan and future medical treatment.

  1. Make sure Plan is credible/reasonable as to each item. Ask jury to decide as to each.  Life expectancy.

  2. Are comparable health benefits available to client from other sources? Is client required to reimburse these sources?

  3. Client's recovery must be sufficient to assure client's future medical and other needs are covered, no matter when they occur or what they entail.

  4. Life Care Plan must cover expense of all treatments required to fix or help symptoms of TBI. Unfortunately, there are few effective treatments for mTBI.

  1. Argue against injustice (rather than for justice). Make defendant accountable.

  1. Credibility is key

  1. At every stage, credibility is essential to win the case.

  1. Win = compensation for client to balance harm.

  2. Initial interview.

  3. File lawsuit.

  4. Discovery.

  5. Pre-existing conditions and susceptibility.

  6. Other perceived weaknesses.

  7. Verdict to restore client's good name.

  1. Keep it simple; truth and trust.

  1. Simplify the evidence of damage to the client's brain, the most complex organism on earth (and perhaps anywhere). It may be difficult for an attorney to do this if she/he is not knowledgeable about the brain. See, Part One.

  2. The jury will provide fair compensation to the client when the jury has been educated about the brain, and feels the truth of the harm to client's life.

  3. 75% of jurors (9 of 12) must agree on the amount to be allowed by jury to fairly compensate client for injuries and damages. Client does not have to convince all the jurors. Collective wisdom of the jury does not require unanimity. This test is "more likely true than not true." Facts are not required to be proven beyond a reasonable doubt.

  4. Empower the jurors, and trust the jury. Trust the capacity of those you want to lead to help you reach your goals. That's why we are here. Cf., conductor of orchestra only gets power by empowering the musicians in the orchestra. See, TED Talk, Benjamin Zander, 2008.

  1. Future of TBI.

  1. More sensitive imaging of mTBI may increase likelihood of diagnosis of mTBI from imaging studies alone. See, Findings in mTBI. Also See, Erin Bigler, Ph.D., Advances in Neuroimaging, 2014. Cf., Diagnosis of mental illness using biomarkers in the brain.

  2. There are at least 1.7 million TBIs each year in the USA, 75-80% of which are mTBI. Brain trauma is the leading cause of death and disability in young people. See, factsheet here.

  3. The silent epidemic of mTBI and PTSD. Fortunately the silence is lessening as the public learns more about the potential dangers of mild concussions in sports and in the military.

     See, Traumatic Brain Injury: Signature Injury of the War in Iraq

     and AfghanistanArticle here.

     Breaking the Silence on Brain Injury. Article here.

  1. Costs and risks of brain injury litigation or arbitration.

  1. Many potential defendants are requiring contractual arbitration as a condition of providing services or products. Arbitrator's livelihood is dependent on satisfying the defendants insurance companies, which are the repeat customers; not the client, who has a once-in-a-lifetime brain injury, or the client's lawyer, who handles a small fraction of the cases managed by the insurance companies.

  2. The expense of TBI litigation or arbitration can be prohibitive. Even under the best of circumstances, it is dangerous for client and attorney to bring litigation or arbitration to recover for TBI. At minimum, client must be truthful and client's brain injuries must be life-changing.

  1. Experts, typically doctors, charge $350 - $1,000 per hour for their services, in the case. There likely will be a per diem charge for trial or arbitration from $5,000 to $10,000 per day.

  2. Code of Civil Procedure 998 provides for a pretrial offer to compromise. In the event of a verdict at trial in excess of a pretrial offer that is not timely accepted by the opposing party, at the court's discretion, client may recover costs, including expert fees, and interest at 10% on the verdict amount. The same rule applies in favor of the defense, if client's verdict is not more than Defendant's offer. Code of Civil Procedure Section.

  1. Settlement, instead of trial, can save substantial time and expense if both sides are reasonable. It is most unlikely the defense insurance company will make a reasonable offer to settle unless it is fully aware of the likelihood of a verdict substantially in excess of the settlement demand.

  1. To accomplish a reasonable settlement, I have found it useful to prepare a comprehensive settlement demand, including honest stories from credible before and after witnesses, and by experts as to disability and damages, describing how my client's injuries and damages have been life-changing. The client's life, and the lives of the client's family, have been damaged forever. The careless person, corporation or other entity must be held accountable.

  2. The amount of insurance covering defendant is of central importance. It is difficult to get money from most individuals who do not have substantial assets, and can file bankruptcy to discharge the client's verdict as a debt.

  3. If the defendant's insurance company fails to reasonably settle your case, the insurance company likely will have to pay the entire verdict, even if it is much larger than the available insurance. This provides a strong incentive for the insurance company to accept a reasonable settlement within the policy limits of defendant's insurance coverage. This is also an excellent opportunity to proceed with trial because the client is assured of a deep pocket to pay the verdict.

  4. If client is injured by a careless uninsured or under-insured motorist, client's insurance company has a fiduciary duty of good faith and fair dealing with client. This duty requires client's insurance company to thoroughly investigate and timely settle client's claim. See, CACI 2331.

  5. For your protection, please buy substantial UIM coverage from your automobile insurance carrier. This coverage is relatively cheap, and there are numerous careless under-insured motorists in California.
     

 

    

 

IN APPRECIATION

 

Thanks to the Traumatic Brain Injury Litigation Group (TBILG) of the American Association for Justice (AAJ), for many ideas and source materials available on the TBILG listserv, and in the meetings of this select group of excellent brain injury lawyers across the Nation.  See, http://headlaw.com/links.htm

 

Thanks to Consumer Attorneys of San Diego (CASD) for daily support and information, and to Consumer Attorneys of California (CAOC). Never Stand Alone.

 

Thanks to Gerry Spence Trial Lawyer's College for offering courses to teach trial litigation, helping lawyers become the best they can be in their own voice, and from their own heart.

 

Thanks to San Diego Brain Injury Foundation (SDBIF), to which I have belonged since 1984, giving me the opportunity to know and support the local brain injury community.  

 

Thanks to David Ball and Rick Friedman for the trial insights in their publications.

 

Thanks to Jeff Hawkins, whose book, On Intelligence, is the primary source of my observations of how the brain works.  Hawkins describes the operations of the brain in relatively simple layman's terms. Hawkins says the book is, in essence a prediction about what intelligence is and how the brain works. See, On Intelligence, Jeff Hawkins, 2004.  http://www.onintelligence.com/. The book came out in 2004, and much has changed in the 11 years since publication.  The brain remains a mystery today, but less so.  

 

For recent developments in the field of artificial intelligence (AI), see the article in the November 23, 2015, New Yorker, The Doomsday Invention,

http://www.newyorker.com/magazine/2015/11/23/doomsday-invention-artificial-intelligence-nick-bostrom

 

Also, thanks to Annie Malloy, my former legal assistant, who worked hard to help our brain injury and other clients. She had to leave and she is missed.

 

ADDENDUM

 

Fifty molecules of the smell is extracted from an unwashed piece of clothes or a used pillowcase.  When mixed with alcohol, the resulting perfume preserves the person's distinctive smell.  See, KPBS, January 18, 2016.

http://www.marketplace.org/2015/12/28/business/business-bottling-persons-olfactive-signature

 

Of historical note, Marcel Proust, the prestigious French writer at the turn of the 20th century, is famous for his involuntary recall of an episode from his childhood after tasting a cookie (madeleine) dipped in tea.  Proust describes how his memory was ignited by tastes and smells from long before.  Proust's description, written in the language of the turn-of-the-20th century, describes the magic of our senses bringing back long lost memories, with wondrous effect. 

 

It is worthwhile to consider his story as we deal with the importance of  demonstrative evidence. 

See, http://ww3.haverford.edu/psychology/ddavis/p109g/proust.html

 

Here are some points from the description.

 

*My mother seeing that I was cold, offered me some tea.

 

*No sooner had the warm liquid mixed with the crumbs touched my palette than a shudder ran through me, intent upon the extraordinary thing that was happening to me.

 

*This new sensation having had on me the effect which love has of filling me with the precious essence.

 

*I sense that it was connected with the taste of the tea and cake, but that it infinitely transcended those savours.

 

*It is time to stop; the potion is losing its magic, it is plain that the truth I am seeking lies not in the cup but in myself. 

 

*I retraced my thoughts to the moment at which I drank the first spoonful of tea.  I ask my mind to one further effort, to bring back once more the fleeting sensation.  I place

 in position before my mind's eye the still recent taste of that first mouthful, and I feel something start within me, something that leaves its resting-place and attempts to rise, something that has been embedded like an anchor at a great depth. 

 

*Undoubtedly, what is palpitating in the depths of my being must be the image, the visual memory which, being linked to that taste, is trying to follow it into my conscious mind.

 

*Will it ultimately reach the clear surface of my consciousness, this memory, this old, dead moment which the magnetism of an identical moment has traveled so far to importune, to disturb, to raise up out of the very depths of my being?  I cannot tell.  Now I feel nothing; it has stopped, has perhaps sunk back into its darkness, from which who can say whether it will ever rise again?

 

*And suddenly the memory revealed itself .

 

It was a cookie, called a madeleine, that his aunt would give him with tea on Sunday mornings in the town in which they lived, Combray.

 

*The sight of the little madeleine had recalled nothing to my mind before I tasted it; perhaps because I had so often seen such things in the meantime without tasting them.

 

*But one from a long-distant past nothing subsists, after the people are dead, after the things are broken and scattered, taste and smell alone, more fragile but more enduring, more unsubstantial, more persistent, more faithful, remain poised a long time, like souls, remembering, waiting, hoping, amid the ruins of all the rest; and bear unflinchingly, in the tiny and almost impalpable drop of their essence, the vast structure of recollection.

 

*And as soon as I had recognized the taste. . . immediately the old gray house upon the street, where her room was, rose up like a stage set to attach itself, little pavilion, opening unto the garden which had been built behind it for my parents. . . .

 

*The whole of Combray and its surroundings, taking shape and solidity, sprang into being, town and gardens alike, for my cup of tea.

To design a demostrative exhibit which evokes in jurors a stream of memories favorable to the clients, is a powerful trial objective.

 

 

 
(without photos)

 

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