Trial tactics in brain injury litigation

Presentation made to New Jersey Association for JusticeFebruary 2015

Michael V. Kaplen, Esq.Professorial Lecturer in Law

George Washington University Law School

De Caro & Kaplen, LLPPleasantville, NY

914 747 [email protected]

www.brainlaw.com

copyright 2015 De Caro & Kaplen, LLP www.brainlaw.com

mailto:[email protected]

http://www.brainlaw.com/

Michael V. Kaplen, [email protected] 747 4410

Professorial Lecturer at LawGeorge Washington University Law SchoolBoard Certified, National Bd. of Trial Advocacy Board Certified, American Bd. of Professional Liability Attorneys Board of Directors, NYS Academy of Trial LawyersPast President, Brain Injury Association, NYSPast Chair, NYS Traumatic Brain Injury Services Coordinating CouncilPast Chair, American Association for Justice, Traumatic Brain Injury Litigation Group




Know your client

Know your problems

It doesn’t get better over timecopyright 2015 De Caro & Kaplen, LLP www.brainlaw.com

Preparation is Key

The more I prepare, the luckier I getcopyright 2015 De Caro & Kaplen, LLP www.brainlaw.com

Prior medical conditions

Prior psychiatric conditions

Prior head injury

Neurological conditions

CT scans, MRI studies

Military Service

Education

Records you must review before the

defense goes fishing


Plaintiff was suffering from the same problems before incident—(Psychiatric records)

Plaintiff was making the same complaints before incident

Prior lawsuits with similar claims of injury

Poor work record before incident

What is Defense Hoping to Find?


Can you explain it away?

Did the plaintiff have a condition that made him/her more susceptible to brain injury? (egg shell skull)

Did this incident cause an aggravation of a pre-existing condition?

Maybe you need to decline the case!

You Need to Review These Records

First!


You must alert your client to dangers of:

Facebook

Linked In

Google Plus

Social Media


Obtain Photographs of Your Client


Have someone knowledgeable attend with plaintiff

Obtain the raw data for expert review

Defense Physical Examination


Background and experience

Knowledge of subject

Agreement with your positions

Destruction of expert

Depositions of Defense Experts


Background and experience

CV-qualificationsCompensationRelationship with attorneysBooks and articlesContributions to web sitesContinuing education courses


What were they asked to do?

What did they review?

What did they seek to accomplish?

How did he/she go about their task?


Where did you get this information?

Is that all?

Anything else?

What significance did this information have to you in formulating your opinion?

What do you know about my client?


Is there anything else that you asked to review before today’s deposition that you haven’t received/

Why are these items necessary?

What’s missing?


What are your opinions?

Injuries, disability, permanency, causation

How do you know this?

Reliance on any books or articles in formulating opinions?

Any other alternative explanations that you considered?

Obtain all of their Opinions


What tests did you use?

Why did you choose these tests?

References to books or articles substantiating these tests?

Are they part of a computer battery of tests

Did you utilize entire test?

Did you utilize entire battery?

Testing


Who administered tests?

Qualifications of individual?

Who scored tests?

What norms did you use?

What assumptions did you make?

Where are the hard copies?

Testing


Voir Dire



Harris Poll Study:

Respondents think they can determine if a person has a brain injury from observation

When asked to identify persons with a brain injury, they identify persons with a physical disability

Your client looks to good

Keep Your Client Out of the Courtroom


Head Injury

Brain injury

Brain Damage

Brain Injury Survivor

The Words You Use Are Important


Federal Rules of Evidence: 803(18):

“To the extent called to the attention of an expert witness upon cross-examination or relied upon the witness in direct examination, statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other art or science established as a reliable authority by the testimony or admission of the witness or other expert ….”

Reliable Authority


Reserving your right to agree or disagree with any portion of the text would you generally agree that Professor’s Lezak’s text is a reliable authority on the subject of neuropsychology?

Cross Examination-Medical Texts


What is the nature and extent of a person’s impairments?

Are the impairments caused by or consistent with a brain injury?

What area(s) of the brain were injured?

What questions can a

neuropsychologist answer?


Was the event/accident the competent producing cause of the brain injury and impairments?

How were alternative explanations ruled out?




Will there be further recovery of function? Are the impairments permanent?

How do the impairments interfere with daily functioning in the home environment, the work environment and other aspects of an individual’s life?

How do impairments impact spouse? Parent?




What are rehabilitation needs of the individual?

What assistance will the individual need because of his/her deficits?




Jury needs to understand the mechanism of closed head brain injury

Jury needs to know how it relates to the traumatic event

Jury needs to know that the forces which were transferred to the plaintiff’s brain were sufficient to cause brain damage

Biomechanical engineer validates neuropsychologist’s findings

The Importance of Biomechanical

Engineering Testimony


Addressing the future economic losses as a consequence of the brain pathology and

functional impairments


Life Care Planning

Vocational Expert

Economist

Experts Used to Prove Economic Damages


Quantifies Future Damages That May Not Be Readily Apparent

Breaks Down Economic Consequences Into Understandable Items

Justifies Significant Verdict

Why A Life Care Plan Is Necessary?


Persons with disabilities, once unemployed have more difficulty in obtaining new employment

Persons with brain injuries may be able to continue working, but may be working at a diminished pay grade or may never be promoted

Persons with brain injuries may not be able to keep their current job

Vocational Economic Analysis

Loss of Capacity to Earn $$ in the Future


Why is this evidence important to attorneys?


Looks at the diffusion (movement ) of water molecules in nerve cells

Molecules move in parallel direction to nerve cells

Damaged nerves-- molecules move in many directions

DTI

Diffusion Tensor Imaging


DTI

Just Pretty Pictures?


White Matter Tractography


Opinion that individual has brain damage is based upon:

Patient’s history

Neurologic examination

Neuropsychological testing

Brain imaging studies

Expert not relying on dTI exclusively


Not conclusive

Pathological changes consistent with brain damage

DTI Conclusions


Who are they going to trust?

Who are they going to believe?

Preparation is Key


The New York Brain Injury Law Firm of De Caro & Kaplen, LLP

represents victims of traumatic brain injury as a result of motor vehicle collisions, bus accidents, truck and tractor trailer collisions,

falls, unsafe buildings, construction workers injured on unsafe construction sites and medical malpractice




