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Defending the Mild Traumatic Brain Injury Case in California: Eight Steps to Avoid Getting Hustled

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November, 2016

By: Raymond A. Greene

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Raymond A. Greene, III





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Raymond A. Greene





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Raymond Greene is one of the firm's premier trial lawyers who has extensive experience in litigating employment, product liability and construction matters. Mr. Greene advises and defends construction companies, retailers, manufacturers and food distributors on multiple issues ranging from product and defect liability claims to contractual/employment disputes. He defends transportation companies of all sizes involved in employment disputes, emergency catastrophic personal injury investigation and various regulatory matters.











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    The art of "hustling" is often associated with popular movie actors and their films, such as Paul Newman in The Sting, Kevin Costner in Tin Cup, or Matt Damon in Rounders.  And while games of chance like horse racing, golf or poker lend themselves to the amusing hustling of naïve participants, it is a mistake to be avoided in the defense of Mild Traumatic Brain Injury (MTBI) cases in California.
    It is understandable how claims professionals, risk managers and defense counsel are inclined to overlook the "invisible" brain injury claims when tangible and substantial orthopedic injuries can often be easily diagnosed and evaluated without incurring extensive litigation expenses.  This is especially true when cooperative and familiar plaintiff counsel provide damages data and engage in early and often pre-litigation settlement negotiations.  However, the defense industry needs to be vigilant in identifying situations where plaintiff attorneys (perhaps frustrated with the settlement dialogue) privately build up an MTBI claim with eager plaintiffs and experts working as hustling co-conspirators. The building up of the claim is easily concealed from unsuspecting claims persons and defense counsel as California expert discovery rules do not require disclosure of experts until fifty days before trial.  Some of the common plaintiff counsel tactics in this regard include:
  • Interviews of all supportive percipient witnesses, including family, friends and co-workers who can provide testimony regarding the changes in the claimant's temperament, forgetfulness, inability to multitask, and confusion in an effort to make the "invisible" injury more visible.
  • Enlistment of the plaintiff's primary care physician or family doctor to provide details about the plaintiff's functioning and clinical presentation both before and shortly after the subject accident.
  • Retention of medical consultants including neuropsychologists, psychiatrists, neurologists and radiologists who have complete access to evaluate the plaintiff and conceal their findings until expert depositions on the eve of trial.
  • Belated presentation of exorbitant economic damages with the use of life care planners, economists and consultants specific to the plaintiff's career or industry.
  • Development of themes to present the plaintiff as a survivor rather than a victim with emphasis on his or her struggles to attempt to return to work, repair fractured personal relationships and/or resume recreational activities.
    The built-in advantage that plaintiff counsel has in early and unlimited access to his client and consultants makes it crucial to begin the defense at the claims handling stage. It is also important to involve defense counsel as soon as practical to minimize the head-start inherent with the role of plaintiff's attorney. Some of the strategies for the defense to consider include:
  1. Identification of the "red flags" of brain injury by obtaining and thoroughly reviewing emergency medical records with special attention to references to loss of consciousness (LOC), Glasgow Coma Scale scores, being dazed or memory loss.  Careful review of the EMS records is also important as it may be the only time a plaintiff is truthful about how the accident occurred and the extent of his or her initial symptoms.  These initial statements made to ambulance personnel are frequently repeated to ER doctors and nurses and often conflict with subsequent attorney-guided statements made by the plaintiff to medical experts.
  2. Pre-existing medical conditions like alcohol/drug abuse, mental illness or prior brain injuries can also be found in the emergency-related records.  If so, immediate investigation into the identities of medical facilities or providers who were involved in past treatment should be undertaken so these records can be obtained.  If the claimant has a history of depression, drug addiction or prior brain trauma, he or she is likely to have experienced symptoms that are similar to those associated with the current MTBI.  Complaints like the inability to concentrate, depression, headaches and memory loss may be actually related to the original condition.
  3. Copies of all scans (CT, MRI, EEG, PET, SPECT, DTI, Brain Mapping and fMRI) and tests should be immediately requested.1 It may be worth the expense to retain a radiologist or neuroradiologist in the early stages of litigation in order to identify any pre-existing problems that explain many of the symptoms that the plaintiff complained about after the subject accident.  One example we have encountered is an elderly claimant whose pre-existing brain degeneration was the real cause of his cognitive deficits.
  4. Establishment of a baseline for the plaintiff's pre-accident function by obtaining all employment, academic, social media and military records. All of this information (especially recent employment files) can reveal financial and other stressors that can create skepticism about the reliability of post-accident neuropsychological testing or just provide data points on the level of plaintiff's functioning before the accident. The records can also identify former friends and co-workers who can be interviewed with the goal of obtaining a candid evaluation of the plaintiff and his career before and after the accident. We recently determined through co-worker depositions that a plaintiff's stressful decision to change jobs was more related to his employer's phasing out of projects the plaintiff was working on rather than his brain injury.
  5. Reque st any raw data from the plaintiff's neuropsychologist testing.  The plaintiff's counsel's response to this request will indicate how serious the opposing counsel is in pursuing the brain injury claim and how far along they are in working up this aspect of the case.  Opposing counsel may be object to this request on the grounds that the testing data is confidential and/or proprietary in nature.  If so, the most common and reasonable solution is for the data to be provided only and directly to the defense neuropsychologist for evaluation.  If that compromise is rejected by plaintiff's counsel, a Motion to Compel is certainly warranted and justified.  
  6. Line up your team of defense medical experts.  In addition to your neuropsychologist (who can evaluate the plaintiff expert testing results and perform his own battery of tests), strong consideration should be given to experts in the following discipline depending on the facts of each case--neurologist (to diagnose the nature and extent of the brain injury); neuroradiologist (to evaluate the scans/films); biomechanical expert (to opine on the forces involved in the accident and whether they were sufficient to cause a claimed injury); and psychiatrist (to assess the impact of mental illness on symptoms). 
  7. Damages experts should also be considered especially where there is tangible evidence of a significant brain injury.  Aggressive plaintiff attorneys will again use vocational rehabilitation, life care planning and economic experts to drive up special damages and attempt to gain leverage in settlement discussions.  Early retention of damages experts is often advisable especially in cases involving high wage earners such as technology professionals here in California.  The experts can assist in helping counsel craft discovery to understand complex compensation systems (e.g., stock options and profit sharing) and trends specific to profitable but volatile industries.
  8. Be prepared to counter new medical technologies and experimental science.  Advanced brain imaging techniques such as Functional MRI (fMRI), Diffuse Tensor Imaging (DTI), Perfusion Imaging, PET and SPECT are currently more often used in research than in clinical settings.  Yet these experimental neuroimaging methods are often used by plaintiff counsel on their clients when conventional studies (CT scan & MRI) are negative.  While these new techniques have been promising in group comparison analysis, there is insufficient evidence supporting clinical use for individual patients.  Therefore, they are vulnerable to exclusion at trial under Daubert and Kelly-Frye standards in California where Evidence Code §402 hearings can be used to challenge the admissibility of these tests.
  1. Blood test results can also be instructive as the existence of certain proteins are biochemical markers for the existence of brain injury.
This article is presented for informational purposes only and is not intended to constitute legal advice.

For More Information, Contact:
Raymond Greene
(510) 835-6706