Handle Brain Injury Evidence Expertly

Reprinted with permission of Trial Magazine, (July 2005) Copyright The Association of Trial Lawyers of America.

Kenneth I. Kolpan

Presenting persuasive evidence of a client's minor traumatic brain injury required the testimony of medical experts who assess and treat it. These experts typically include neurologists, physiatrists, neuro-psychologists, psychologists, neuropsychiatrics, speech-language pathologists, occupational therapists, and radiologists.

But not every expert in these specialized fields will be able to help your case; within each specialty, only certain individuals and facilities accept patients with traumatic brain injury. The Brain Injury Association of America (www.biausa.org) and the North American Brain Injury Society (www.nabis.org) can help you find the experts you need. Both provide information regarding brain injury treatment programs and providers.

The linchpin of the medical evidence will be the testimony of the neuro psychologist, who will explain how objective test he or she performed on the plaintiff will show how the plaintiff's brain functions. To testify regarding the causal relationship between the injury-causing event and the plaintiff's cognitive deflects, the expert must have extensive access to the plaintiff's pre-accident medical information, including preperi and postnatal records; pediatric record, chiropractic records, records or prior treatment of traumatic brain injury; and psychotherapeutic and substance abuse treatment records.

The neuropsychologist should also see the client's post accident records, including the EMT/fire department report; emergency room records; and treatment records for all other medical visits, including those to dentists and opticians or ophthalmologists.

Education records that this expert will need include nursery, elementary, secondary and post secondary school records, aptitude and achievement test results, records of guidance counseling received; discipline records and records or special education services received.

If the plaintiff is employed, make sure the neuropsychologist has copies of the plaintiff's employment application, personnel file, job description, and pre employment medical examination.

The neuropsychologist should also receive copies of discovery-related document, including:

• motor vehicle accident reports
• accident photos
• the defendants' answers to your interrogatories
• deposition transcripts
• the opposing experts' answers to your interrogatories
• treatises on which your experts or the defense experts will probably rely

Define and Conquer

In one of my first cases, a seasoned judge asked who my experts were. When I told him a physiatrist would be testifying, the judge asked, "Do you mean a psychiatrist?"

Make sure your experts define the medical terms they use in describing the diagnosis and treatment of your client's injury. Most people do not understand terms like physiatry (a medical discipline focused on helping people who are suffering from disabilities due to injury or disease recover from lost functioning), neuro psychology (the study of human behavior as it relates to normal and abnormal central nervous system functioning), and speech language pathology (the study and treatment of speech, language, and swallowing disorders).

Your experts should explain what people in their profession do and their role in the evaluation or treatment of the plaintiff's injury. With the help of demonstrative evidence like an anatomical model of the skull and brain or an animation of how traumatic brain injury occurs, experts should explain:

• what minor traumatic brain injury is
• how minor traumatic brain injury occurs
• why loss of consciousness in not necessary for injury to have occurred
• how seizures contribute to brain injury
• the significance of "second-impact syndrome" - when a second concussion occurs before the symptoms of an earlier concussion have completely cleared
• how brain injuries differ in each patient's case

Your experts will do much of the heavy lifting in helping you prove that your client suffers mild traumatic brain injury. You can lighten their load by making sure they have all the information they need to ensure that their testimony is rock-solid and by offering the guidance they require to communicate their findings to the jury. This may take hours of pretrial preparation, but in the end you - and your client - will be glad you went the extra mile.