A New Era for Closed-Head Injury Cases?

Brain Cases' become more lucrative as acceptance of neuroscience grows.

By Claire Papanastasiou (Massachusetts Lawyers Weekly, December 1, 1997)

Personal-injury attorneys often face an uphill battle in proving their cases, given juror skepticism of the Legal system and its lawyers.

But within the personal-injury bar, some have it even harder than most: those with clients who have suffered closed-head injuries.

"Plaintiffs appear just fine," says Boston attorney Kenneth I. Kolpan, who has been handling "closed-head" cases since 1981. "Many people with serious head injuries can walk and talk."

Although brain injuries continue to be difficult to prove, Massachusetts Lawyers are increasingly hopeful that advancements made in neuroscience in recent years will make it easier to convey a closed-head injury to a fact finder.

Kolpan has seen the medical arena grow to accept the Legitimacy of closed-head injuries while the Legal community has fallen behind. Nowhere is that fact more evident than during a trial, he says.

"It takes an awful Lot of convincing," sighs Kolpan. 'You have to be very persuasive. Jurors come in with a cynical view of personal-injury Litigation. And they are going to be very skeptical about an injury they cannot see."

However, jurors aren't the only ones who fail to detect closed-head injuries.

Attorneys are often blind to such impairments, says Kolpan.

'Clients walk in, and most Lawyers do not see that a prospective client has a closed-head injury," he says.

And as a result, lawyers end up either not taking a legitimate - and potentially lucrative - case, or they end up trying the case as a traditional personal-injury case. Conversely, attorneys also run the risk of trying cases as closed-head injuries when they are not, says Kolpan, stressing the importance of lawyers' understanding the injury and use of proper experts.

"More people have recognized closed head injuries - even to the point where cases that are not necessarily these kind of cases are being brought," says Kolpan "I sat as an arbitrator in a case where the dominant theme was a head injury and the evidence didn't support it, so a finding was made - but it was not made on the basis of the head injury."

As a result, the case settled for less than it should have, he notes.

The increase of closed-head injury cases can be attributed to a greater understanding of the brain and the injuries it can succumb to.

"The United Nations has declared 1990s the decade of the brain," says an optimistic Edward W McIntyre of Clinton a lawyer who also edits a neuroscience newsletter on the topic called the Mild Traumatic Brain Injury. "Neuroscience has come a long way in the last decade."

And while McIntyre says closed-head injuries are still among the most difficult to prove, attorneys seasoned in this area of law have found experts who can "demonstrate amnesia or concentration deficits" of plaintiffs, thanks in large measure to developments in neuroscience.

"There probably is more expertise out there," says Boston defense counsel Raymond J. Kenney Jr., who has defended many suits involving closed-head injuries over the years.

What's more, the general public is more aware of the perils of head injuries.

"Everyone is wearing a helmet [particularly in cycling]," says McIntyre. "We have become much more conscious of head injuries."

Professional organizations, such as the Massachusetts Brain Injury Association in Worcester and the National Brain Injury Association, are responding to the "need to educate lawyers on what to look for at intake," adds McIntyre.

Nonetheless, the legal community is still somewhat cynical in accepting the "legitimacy" of closed head injuries.

Kenney notes that initially the chips are on the defense's side during a mild traumatic head injury. And while plaintiffs' counsel are hammering out novel ways to prove cases, the strategy for the defense has remained the same over the years, adds Kenney, who can sum it up in two words.

"Prove it," he says.

Subtle, But Serious, Injuries

Pouring orange juice in coffee. Experiencing short-term memory loss. Forgetting and losing items. Being unable to read for more than an hour without drifting. Losing one's temper at the drop of the hat. Being annoyingly silly. Experiencing an inability to figure out how to drive home from the market. These are just a few examples of how closed-head injuries can affect people's lives.

But these symptoms are not what a jury sees during trial. And even the most perceptive of lawyers will not detect a person suffering from a closed-head injury during an initial meeting.

"It's not necessarily your first impression," says Kolpan. "It's when you compare their present abilities with their past abilities."

Making such injuries even harder to prove is the dearth of medical evidence. There are no abrasions or lacerations, and such injuries typically do not show up on MRIs or x-rays.

"MRIS, CAT-scans and EEGs can all be negative, and you can still have a closed-head injury," says Kolpan.

MRIs and CAT-scans are snapshots of the brain at a particular period of time, he explains. If there is no sign of bleeding at that time of the diagnosis, the test will show up as normal, he explains.

So when do closed-head injuries show up?

"At the autopsy," says Kolpan, noting the eerie irony.

However, the medical community is making progress in the field, says Kolpan, explaining that the injuries are caused by microscopic tears of the brain caused by rubbing against the inner skull - which can be from whiplash, among other things.

"It can happen at the microscopic level," says Kolpan, adding that protracted and more sophisticated methods can detect certain irregularities.

Kolpan tries to level the playing field at trial by serving as an educator for the jury.

"You spend a lot of time educating the jury about the anatomy of the brain, the structure of the skull, the force involved, how the injury occurs, what documentation you have and why you don't have certain documentation," he says. "You explain the psychological tests. You educate the jury again about the whole field of neuropsychology, about testing. How it is done. What the results are and what the results mean. How other extraneous factors did not cause the symptoms that you see in this person, such as malingering and personality disorders."

Experts play a key role in deciphering the anecdotal testimony from fellow employees into hard medical facts.

"What really helps is when the medical people are made aware of the anecdotes, and they will testify that this is evidence why that person has attention problems or a concentration problem," says Kolpan, who agrees with -Kenney that as a result of the acceptance of neuroscience in the medical field there are more experts.

"The selection of experts is key," says Kolpan. "And some of them are absolutely terrific."

Sometimes it behooves the plaintiffs not to be in the courtroom during proceedings, notes Kolpan, who has to rely on non-medical witnesses familiar with the plaintiff before the injury.

"Witnesses testify that [the plaintiffs] seem odd now," says Kolpan. "The plaintiff would put orange juice in their coffee, or they would leave things burning on the stove. We all sometimes leave things burning on the stove. But it is the consistency of that odd behavior that you have never seen before."

Character of the plaintiff and the witnesses weigh heavily during these trials since skepticism is so high, admits Kolpan, adding that lawyers should get "neutral" witnesses, such as a fellow employee or an employer.

Attorneys taking theses cases should listen to the plaintiff carefully to see if their stories "make sense." Faking a closed-head injury is difficult, says Kolpan, noting that there is one sure fire way to determine the legitimacy of a claim.

"The bottom line is that it doesn't make sense," says Kolpan. "You start listening to the story and gathering medical evidence and particularly facts of the accident, and then it does not make sense, or the problems they describe were pre-existing and ongoing."

Kolpan, who has received many 11th-our calls from inexperienced counsel, encourages lawyers to cultivate experience before relying on their instincts in these cases.

"I think it is a gut reaction of having all the experience," he says of his screening technique. "I don't find a lot of people faking. It is not the kind of injury you would fake."

Attorneys who take the "there-must-be-something-else" approach will not only ferret out illegitimate claims, but also bolster legitimate ones.

"If you prepared the case well, [the defense and the jury] will be looking for that something else and that 'something else' is not there - and then it will be determined that they had a head injury, otherwise it would not make sense."

A Change Of Life

Once getting over the hurdle of whether a head injury exists, attorneys then have to prove how these cases effect the plaintiff's personal and professional life. Because of the nature of these injuries, such as memory loss and difficulty concentrating, white-collar professionals have the most to lose because they may never regain their professional potential.

A jury will likely take a tally of what a plaintiff can still do and what he can't do, and make a decision from there.

"There are islands of preservation and there are islands of deficits," explains Kolpan. "Multiple tests are done to isolate, identify and correlate symptoms with anything physical. ... For example, a lawyer gets injured and suffers a head injury. The greatest impact is on her executive functions. She might have the ability to read and to comprehend; and in a quite room, if left alone, she could right a brief."

Kolpan continues: "It would take her longer, but beyond that there is little she could do as a lawyer. She might lose her place during a deposition. It depends upon the functions that are impaired relating to the person's job. It will affect them differently."

Rarely do plaintiffs return to pre-accident function, says Kolpan. "The goal is to maximize their rehabilitation and to have them return to work at some level," he says.

Settlement or jury awards in these cases tend to be on the modest side, adds Kenney, noting that there are the sporadic big verdicts.

"Historically, the verdicts have always been lower or the cases have settled lower just for the reasons we are talking about," says Kenney.

Representing clients with closed-head injuries pose other, more personal challenges for attorneys who take on their cases, say Kolpan.

"It is a lot of work," he says. "Because of their symptoms they are more difficult to work with. You need to assist them. Their concentration and attention may not be there. Their cooperation is different. It's there, but it's different."

McIntyre agrees, noting that an attorney's bedside manner to both the plaintiff and his/her family is important.

"It's probably the area of personal injury where I end up working most with the family to rely on the client," says McIntyre. "I am dealing with spouses all the time."

Clients may forget about meetings, and phone calls rarely get returned.

"And when they call you, you need to make sure they have a pen and paper to write everything down," he says.

Published with permission of Massachusetts Lawyers Weekly.