skip to main content



Email Page Print Page

Bad Science is Coming to a Theater Near You!

Email Page Print Page

September 2018

By: Richard J. Finn

click on display images
California Law Update
Bad Science is Coming to a Theater Near You!
September 2018


Contact Information


Richard Finn is an AV rated trial attorney who practices in the areas of environmental, business and commercial, and construction law.  He has extensive trial experience in state and federal courts including matters that have tried to verdict in California and Nevada.  Mr. Finn is regularly retained to handle litigation in jurisdictions outside of California. 
  • Oakland
  • Los Angeles
  • San Francisco
  • Las Vegas
  • Reno





As you may know, minor Traumatic Brain Injury (mTBI) claims are becoming ubiquitous in the litigation arena. Injured plaintiffs are alleging that even minor trauma is causing chronic cognitive dysfunction. The plaintiffs' bar argues that a small percentage of individuals who suffer some type of brain insult never recover, this group identified in the literature as the "miserable minority." Apparently, every one of those who do not improve reside in California.
A leading advocate of this theory is Erin Bigler, a professor of Psychology and Neuroscience at Brigham Young University and an Adjunct Professor Psychiatry and Radiology for the University of Utah. He is the author of a number of articles on the subject, which are often cited by neuropsychologists who testify for plaintiffs. However, Bigler's is the minority position. The weight of the scientific evidence supports the conclusion that mTBI symptoms resolve within 90 days.
Rumor has it Bigler is moving to California, in part, to avail himself of the opportunity to consult with the plaintiffs' bar, which continues to refine its approach in litigating these types of claims.
In a case recently tried in Napa County, Plaintiff was involved in a minor rear end accident. Plaintiff first saw a doctor two days later, the diagnosis that of cervical and lumbar strain. Plaintiff did not report a loss of nor an alteration of consciousness. CT imaging was unremarkable. Bigler opined plaintiff suffered mTBI because the force of the impact generated sufficient lateral and rotational force to cause axonal shearing. This conclusion was based on plaintiff's description of the accident. Plaintiff's neuroradiologist and Bigler relied on a type of MRI called Diffusion Tensor Imaging (DTI). This study allegedly demonstrated evidence of axonal shearing. The American College of Radiology published a White Paper regarding this technique, it concluding DTI was not a valid, generally-accepted method to establish white matter injury in an individual with mTBI.
The Verdict: $6.9 Million.
I and others at Burnham Brown have handled a number of mTBI matters. We are well-versed in the science, the medicine, and the literature of this subject. We have been successful in limiting the scope of experts in pre-trial motions demonstrating the foundation of the opinions are unreliable and not trustworthy.
Please consider using Burnham Brown in this type of litigation. We would welcome the opportunity to present a seminar or other educational services.
This article is presented for informational purposes only and is not intended to constitute legal advice.