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Mild Traumatic Brain Injury Settlement

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Karon and Dalimonte, LLP, Attorneys at Law

Jane Doe, et al v. Alamo Rent A Car, Middlesex Superior Court

Type of Action: Negligence
Injuries Alleged: Mild traumatic brain injury; exacerbation of pre-existing orthopedic symptoms
Special Damages: $50,136.05 in medical expenses plus present value of past and future lost earning capacity.
Result: $559,326.16 Verdict (representing verdicts of $300,000 for plaintiff mother and $60,000 for each of two child consortium plaintiffs plus pre-judgment interest)
Date of Verdict: August 9 , 2006
Case Summary:

Plaintiff was injured while a passenger on a shuttle bus operated by the defendant car rental company which was taking her from the car rental drop off to the Phoenix, Arizona airport. A portion of the bus’ ceiling crashed onto the plaintiff’s head and knocked her unconscious. The plaintiff regained consciousness as the bus returned to the drop off location. EMTs arrived and against their advice plaintiff returned to Boston without going to the hospital.

At the time of the accident, plaintiff was a 43 year old mother of eleven year old and fourteen year old sons, in the process of finalizing her divorce. She was employed as a clinical educator in respiratory therapy for a home health care company. She attempted to go to work the day after the accident but was sent home. She did, however, manage to make a previously scheduled appointment that day for an MRI for which she had been referred due to neck pain with radiculopathy from a prior automobile accident. When plaintiff continued to suffer from severe headaches she eventually sought treatment at the hospital emergency room where head x-rays and a CT scan were negative. In addition to headaches, she developed severe stuttering and memory difficulties. She was referred to a neurologist who then referred her to a psychiatrist who diagnosed conversion disorder, a condition in which underlying psychological distress produces physical symptoms. A subsequent brain MRI was also negative.

Eventually plaintiff underwent neuropsychological testing in connection with her application for SSDI. This revealed significant cognitive deficits which in the opinion of the examiner rendered her unable to work at that time. A new neurologist then sent her for another battery of neuropsychological tests which found her deficits less severe but still significant. That neuropsychologist opined that there were psychological factors which were interfering with a better recovery and she was referred to a clinical psychologist for further treatment. Plaintiff also requested services from the Massachusetts Rehabilitation Commission to return to work.

Plaintiff brought a claim for her injuries and consortium claims on behalf of her sons against the defendant.

At trial plaintiff produced evidence that she had sustained a mild traumatic brain injury due to the defendant’s negligence. Through plaintiff’s expert neuropsychologist, plaintiffs’ counsel educated the jury about the nature of mild traumatic brain injury, specifically that the term “mild” refers to the fact that imaging studies are normal and that other symptoms of an immediate life threatening injury are not present. The jury was also taught that most persons who sustain mild traumatic brain injuries recover within months but that a small minority have permanent impairments. The plaintiffs’ expert neuropsychologist also testified based on the results of his own battery of neuropsychological tests and those previously administered that plaintiff suffered from significant permanent impairments in attention, concentration, working memory, and processing speed. Plaintiff also presented testimony from the vocational rehabilitation counselor assigned to evaluate her for the MRC that plaintiff would be unable to return to her previous employment as a clinical educator.

As a result of extensive discovery motions filed by plaintiff, defendant, which claimed to be unable to locate any pertinent records, much less the piece of ceiling that fell on plaintiff, agreed to supplement its interrogatory answers to admit the elements necessary for application of res ipsa loquitor (essentially conceding that the accident happened due to its negligence).

The defendant argued that plaintiff did not suffer from a mild traumatic brain injury but instead was either suffering from a conversion disorder or malingering. Defense counsel repeatedly referred to the diagnosis of conversion made by the initial treating neurologist and psychiatrist, the fact that the EMT report noted that plaintiff was not unconscious and could be interpreted to reflect that inquiries revealed that plaintiff was not unconscious prior to arrival of the EMTs. The defense presented testimony from three experts it had retained: a neuropsychologist, a neurologist, and a psychiatrist, all of whom had examined the plaintiff. Facts upon which their opinions were based included that the first two neuropsychological examinations had included no symptom validity (i.e. malingering) testing and that the results on the first reflected a dramatic drop in overall IQ, a finding not associated with mild traumatic brain injuries; that plaintiff had failed the TOMM test, a malingering test administered by plaintiff’s expert; that plaintiff had a prior history of psychiatric treatment, that plaintiff’s stuttering and her subsequent development of right leg weakness could not be explained by her neurologists; that the neuropsychological testing administered by the defense showed normal cognitive function, and that plaintiff’s scores on the MMPI-2 (a psychological test intended to help diagnose pathologies) indicated a conversion disorder.

During cross-examination, defendant’s neuropsychologist conceded important points: that one could not conclude a person was malingering merely because they failed the TOMM (important because plaintiff had passed three other symptom validity tests administered by plaintiff’s expert); that although plaintiff’s overall IQ was in approximately the 87th percentile, she scored below the 20th percentile on tests measuring the cognitive impairments associated with mild traumatic brain injury; and that the defense expert had administered an abbreviated form of a test administered by plaintiff’s expert. Although the full test administered by plaintiff’s expert showed severe deficits in processing speed, the abbreviated portion of this test administered by the defense expert did not contain the portion testing for processing speed.

On cross-examination, the defense neurologist admitted that the basis of his opinion was that he did not believe in the existence of mild traumatic brain injury. He conceded that he could not cite any literature in support of this novel position and that there was scientific literature to the contrary.

On cross-examination, the defense psychiatrist conceded that plaintiff’s established neck injury and a head injury would elevate her conversion scores on the MMPI-2 even in the absence of a conversion disorder. He also admitted that he had treated patients with both a conversion disorder and a mild traumatic brain injury and that what happens in that case is that the unexplained symptoms improve and the patient is left with the recognized symptoms of a mild traumatic brain injury. This was important testimony as there was evidence the plaintiff’s stutter and right leg symptoms had improved, following psychotherapy, while her impairments in cognitive function had remained.

An important concession by both the defense neuropsychologist and the defense psychiatrist was that neuropsychological testing was important in making the diagnosis between mild traumatic brain injury and conversion disorder. All three experts also conceded that an individual did not need to be knocked unconscious to sustain a mild traumatic brain injury.

After approximately three days of deliberations, the jury returned a verdict in all three plaintiffs’ favor.

This case also illustrates the importance of obtaining the raw test data of the defense neuropsychologist, without which plaintiff’s low scores would not have been discovered as the defense expert defined “normal” scores as being those which were above the cut off for diagnosing mental retardation rather than taking into account the expected performance of someone with plaintiff’s overall IQ


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