Defense attorneys in cases of traumatic brain injury (TBI) are mostly employed by insurance companies. They often investigate alleged concussions or TBIs. “Investigation” may not seem the natural assignment for an attorney. Yet, absent wholehearted and sophisticated detective work, the insurance company will be blind to the medical reality of a case.
This creates an strong incentive for the defense to find one of the few authentically qualified TBI expert witnesses–and to collaborate with him or her to assemble a team with the collective capacity to determine the truth and testify persuasively.
Your Physician Expert
A traumatic brain injury expert witness is, by definition and, in some jurisdictions, by law, a physician. Members of only five disciplines need apply: neurologists, neuropsychiatrists, physiatrists, neurosurgeons, and Brain Injury Medicine specialists. As explained in Blog post #1, however, only a minority of those with such credentials are really experts in this fast moving field. Please apply the selection criteria suggested in that post.
The Team
It is surprising how often a defense attorney will ask the traumatic brain injury physician whether or not they really also need to retain, at the barest minimum,
- a neuropsychologist
- and a Life Care Planner.
When the demand is less than a million dollars, perhaps one can scrimp on experts. When the demand is higher, it is a fool’s errand to litigate with less than the minimal team. In addition to the minimum, one often needs:
- a neuroradiologist
- an accident reconstructionist
- a day-in-the-life expert
- an economist/annuity expert
and/or a sub rosa investigator
This last deserves special comment. Although 40% of plaintiffs exaggerate their symptoms, frank malingering is rare and devilishly hard to prove. When the demand is for $5 million dollars and the plaintiff is active outside his or her home, it behooves the defense to invest in sub rosa scrutiny. A $200,000 invoice from a videographer is often a tremendous bargain, since there is virtually no other way to persuade a jury that a plaintiff is faking his or her disability.
As ever, the problem in assembling a team is selection. An experienced physician/TBI expert should be able to steer you toward a trustworthy neuropsychologist, neuroradiologist, and life care planner. One can find reputable experts in the other disciplines via expert witness directories (see Blog post #1). Yet word of mouth guidance from other attorneys is, by far, the most reliable resource.
Valuing the Case
To estimate what resources must be invested, the defense team should pay less attention to the demand letter and more to a rational evaluation of the case. Plaintiff’s attorney often point to the initial “Severity of injury” as a predictor of lifelong disability. But “severity” is a misnomer. It is measured on day one based on the emergency room assessment. It is poorly predictive of outcome.
The real question is “what lasting effect will this traumatic brain injury have?” That is never neurologically predictable on day one, and rarely predictable at three months post-injury. In a sense, “severity” forever remains subjective, since the same kind of injury may produce different degrees of disability in different people. A female hockey player with a 20% initial loss of brain connectivity may be raring to get back on the ice in a week. A school teacher with the same brain change may be unqualified to teach for a year.
It is nonetheless a useful exercise to apply simple algorithms to narrow the estimate.
Special damages are not hard to calculate. Medical expenses and foregone wages are objective numbers. Acute hospitalizations average about six to ten days and cost an average of $55,000. Acute inpatient rehabilitation costs an average of $46,000. Lost wages depend on years of remaining productivity. In California, for instance, median household income is $75,277. The sole provider-survivor injured at age 50 may reasonably claim $1,129,000 in lost income. Had he or she been injured at age 25, a reasonable estimate might be $3,011,000.
But there is a catch: only a subset of survivors will have established a fixed and predictable career. A graduate student in molecular biology, thesis yet to be submitted? A Lyft driver taking courses in nursing? A valued intern at a renowned talent agency? A junior manager, junior executive, newly hired legal associate, or up and coming sportswear buyer? Your traumatic brain injury expert can help predict the duration and degree of disability, but you need an economist to generate a credible estimate of future earnings.
General damages are an entirely different kettle of fish. They are non-objective. They almost always involve emotional/psychiatric rather then cognitive, motor, or sensory disabilities. Mental or physical pain and suffering; shock and mental anguish; emotional distress; loss of consortium.
Many jurisdictions place arbitrary limits on these damages. Some courts provide rough guidance, for instance, specifying $800 per day of suffering. Your TBI expert may or may not have applicable knowledge. That expert characterizes the likely disability. No one with a lifetime disability is ever “made whole.” But a team can estimate the monetary value that society judges has been lost to a TBI survivor.
The defense attorney in cases of traumatic brain injury litigation finds him or herself in a tumultuous sea of new facts, unfamiliar to almost all of the participants in the litigation. The neuroscience, imaging technology, and clinical expectations are changing at head spinning velocity. It bears repeating to the point of redundancy: success depends on finding and collaborating with one of the few authentic traumatic brain injury experts.
