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A recent brain injury settlement in federal court reflects difficult case factors in traumatic brain injury litigation

Overcoming Challenges in a Traumatic Brain Injury Case

Overcoming Challenges in a Traumatic Brain Injury Lawsuit

This is an overview of the challenges, obstacles and nuances of a traumatic brain injury lawsuit our law firm settled two days before trial in federal court.

This client sustained a head laceration, mild traumatic brain injury and arm injury when an electric bicycle display fell on her while shopping. The client had cognitive changes, behavioral changes, visual system changes and ongoing severe headaches. 

Despite her clear injuries at the store, she had to call her health care provider (Kaiser Permanence) for permission to seek treatment at a nearby hospital as she was bleeding from the head. The nearest hospital was not rated for trauma care. While a head laceration was diagnosed and treated, the ER did not diagnose a concussion or traumatic brain injury. From our experience handling TBI cases we know that failing to diagnose a mild traumatic brain injury / concussion is very common (over 50% even at Level 1 Trauma hospitals). But, the retailer and their "third party administrators" who handle their injury claims, felt this failure to diagnose meant she had not sustained a concussion at their store. Our experience with documents from the National Institutes of Health and Center for Disease Control contradicted this noting that symptoms of traumatic brain injury are usually not evident on the day of the injury.

Treatment was then significantly limited by her health care insurer and more notably by being injured just before COVID-19 health care facility closures and limitations. As a result, the case was adversely impacted due to a lack of treatment substantiating the client's injuries. Despite the client's best attempts to get brain injury care during COVID, she received very little of the brain injury evaluation and treatments common to a traumatic brain injury case. The facility that her health insurer normally referred cases to, also closed for an extended time for COVID-19, resulting in her being unable to get a referral for appropriate care.

This client had notable pre-existing depression and anxiety arising from past domestic abuse. The client also had a history of headaches and some symptoms similar in nature to those aggravated by the concussion, albeit much less severe or frequent. But, this was seized upon as a primary defense in the case. 

The retailer made no settlement offer prior to filing the lawsuit even though pictures and video demonstrated that the display was set up with the base plate not supported, and sitting on top of a wood pallet. After the bike and display stand fell on the client, it became clear that the heavy metal display stand and 35 pound electric bike were only being supported by product boxes sitting on top of the small metal base plate. Rather than the base plate of the display stand being bolted into the ground, or a weighted base, the base plate was sitting on top of a wood pallet and not screwed or bolted down. Once the last product box was removed from the pallet and metal base plate on top of the pallet, the display stand collapsed bringing the bike and display down on the client's head. Any customer or child near the display was going to get hurt once the last box was removed, and that is exactly what happened.

There were some important legal rulings in this case that demonstrate our experience and expertise in traumatic brain injury cases. They are issues we have briefed and argued many times in the past 20+ years of handling traumatic brain injury cases, and called upon our prior work on these issues to file a number of motions limiting the defense's expert witnesses.

Our office was successful in getting Defense Orthopedist Marilyn Yodlowski struck from testifying by way of a motion filed by our office. (Defense neurologist Leslie McAllister M.D. had already withdrawn as an expert witness for the defense.) This ruling left the defense with one expert witness.

We were also successful in limiting the testimony of defense neuropsychologist Laurence Binder Ph.D., by way of a Daubert motion and Motion in Limine. The order limited Dr. Binder from testifying on Malingering or Somatoform Symptom Disorder as federal case law is clear that expert witnesses are legally prohibited from commenting upon the credibility of a party. 

Based upon our motion, testimony on Performance Validity Testing (often referred to as "effort tests") was also struck as scientific literature demonstrates that the provision of multiple Performance Validity Tests invalidates the scientific validity of the conclusions purported by defense neuropsychologists - that a failure on Performance Validity Testing supports that the injured party is faking or exaggerating symptoms by underperforming on neuropsychological tests. See McWhirter L, Ritchie CW, Stone J, Carson A. “Performance validity test failure in clinical populations – systematic review” J Neurol Neurosurgery Psychiatry. Despite three passing scores on the most common effort test (the Test of Memory and Malingering or "TOMM") Dr. Binder then administered multiple more Performance Validity Tests and claimed that a failure on one embedded effort test indicated the client was unconsciously exaggerating symptoms. The Judicial Order was also based upon the lack of adoption of many Performance Validity Tests. 

Evidence on certain neuropsychological tests was also stricken because Dr. Binder relied upon tests that were not valid for the purpose for which he based his decision (using a test - the RBAN - that was valid for Alzheimers patients in a non-Alzheimer's patient where the scientific literature notes the test was not specific for the injury that the plaintiff claimed. In short, he used the RBAN as a basis for claiming the client wasn't injured as she claimed, even though the RBAN was not scientifically valid for that determination.

While these are very fine scientific nuance, the outcome of these motions demonstrate that a brain injury lawyer's understanding the smallest details of tests and defense doctor tactics, can make a major difference in the outcome of a brain injury case. These tactics are frequently used to beat traumatic brain injury claims, or keep jury verdicts very low. This is why Oregon and Washington lawyers contact our office for advice on how to best handle their traumatic brain injury cases. These are not simple cases. Traumatic brain injury cases involve different science, testing, and experts than the typical personal injury case and it is much easier to lose or get a bad outcome if the lawyer doesn't have substantial experience handling brain injury cases.

Another notable point on this issue - the mediator in this case who is well respected in Oregon, noted that in his review of all of the mild traumatic brain injury verdicts and arbitration outcomes in Oregon, our office has the highest outcome in Oregon history for a mild traumatic brain injury claim, and almost all of the highest outcomes in mild traumatic brain injury claims. He notes that this is a material factor in the insurer deciding what to offer in a brain injury mediation (which is a private negotiation with an experienced lawyer or retired judge, whereas a "settlement conference" is the same procedure but with an active sitting judge). Insurers and defense lawyers also know which lawyers will and will not go to trial. A lawyer's trial reputation makes a material difference in a person's settlement offer.

The value of this case was materially impacted by a number of factors. The first was the client's lack of ability to access normal brain injury examinations and care due to COVID-19 clinic closures. Another was her health insurance company's refusal to allow a referral to a brain injury speciality facility. The third, albeit less important, were her pre-existing symptoms. The most notable factor in the settlement amount, was the venue being in federal court against a national retail chain, rather than in state court. In federal court, an injured party (called the "plaintiff") and their lawyer has no ability to do jury selection, and in this case our request for jury selection time by plaintiff counsel was denied by the court. To many leading trial lawyers and jury consultants, jury selection is the most important part of a trial because without an impartial jury you cannot win no matter how good the facts are, and how strong the law is on your side. Jury bias is a very real problem in litigation and without a lawyer being able to ask potential jurors questions about their personal beliefs, it is impossible to get an impartial jury. So, in this case like most federal court cases, with no jury selection we faced a jury that could be clearly hostile toward lawsuits, and we had no ability to ask about those juror's beliefs before starting the trial. 

Beyond this, federal court also requires a unanimous decision instead of Oregon state courts requiring 9 out of 12 jurors to agree with each element of the case. The federal court's requirement of a unanimous jury verdict increases the likelihood of a loss as well as an increased risk of low jury verdict. This is why national corporations always attempt to "remove" a case from state court to federal court whenever possible. In cases where the law is on our side we fight these removals and have been successful in getting multiple remands to state court in other cases - thereby giving our clients the best opportunity to win by way of jury selection and jury deliberation.

This case settled two days before trial, after more three years with a $0 offer, and the highest mediation offer being $50,000. This case involved a self insured retailer and did not involve insurance companies. Instead it involved a well known "third party administrator" company, Gallagher Bassett, reviewed the injury claim and clearly undervalued the claim.

About the
Author

Aaron DeShaw is a personal injury lawyer at DeShaw Trial Lawyers, a law firm representing injured people with serious injuries including brain injuries and other catastrophic injuries. He has individually, and in association with other law firms, obtained over $1 Billion for his clients. Learn more about Aaron and the Firm.