High-tech proof in brain injury cases: new developments in biomechanical animation and brain imaging can help jurors 'see' the damage caused by head trauma.

People see only what they are prepared to see. These words, attributed to Ralph Waldo Emerson, (1) bear a message for trial lawyers faced with proving mild to moderate brain injuries. Such injuries result from trauma to the brain, but the damage is microscopic, often failing to appear on standard brain scans. Further, people who have been injured often do not exhibit external symptoms of their injuries.

Take John Olsen, whose life was changed after a 500-pound steel beam fell down an elevator shaft at a construction site and knocked him unconscious. Jurors may see John walk, with full use of his legs and arms, to the witness stand. He may seem to speak and think the same way others do. But his testimony--that he experiences ongoing, severe pain; is moody and depressed; cannot relate to his family in the way that he did before the accident; and cannot perform tasks that he easily accomplished before his injury--will be unconvincing unless his attorney is able to show his invisible injuries.

Making invisible injuries visible helps jurors and judges understand their severity and see the plaintiff as permanently injured even before the defense calls its first witness or plays the inevitable surveillance videotape in an attempt to present the plaintiff as perfectly healthy. (2)

This is a challenging task, but advances in technology are providing plaintiffs with the tools they need to win tough cases. Biomechanical assessment animations, the technical term for computer graphics that illustrate forces and counterforces, can help the jury virtually witness the incident that caused the injury.

Also, advances in functional neuro-imaging give lawyers access to pictures of microscopic mild traumatic brain injury that were unheard of just a few years ago. Electronic brain scans can provide evidence of injuries to brain tissue that might otherwise remain unseen.

Biomechanical animation

A negligently constructed luggage bin on a commercial airliner pops open in flight, dumping a 40-pound suitcase on a passenger's head. A woman bumps her head on the dashboard when the car she is riding in is rear-ended.

These do not sound like life-altering events, and there probably are no photos or videos to document them. However, what happens inside the skulls of accident victims such as these is often dramatic and severe and can cause brain injuries that are life-altering. Jurors must be made to somehow "see" the precipitating events to help them understand why.

The science of biomechanics can be viewed as the link between an event and its outcome. For example, if your body is poked with a finger, it has the mass to withstand the jab without much adverse effect. But if a truck strikes it instead, the story is quite different.

Biomechanical animation illustrates this commonsense notion. It enables jurors to envision how violently the brain moves inside the skull when the head suddenly accelerates and then abruptly stops when it hits an object like a car's dashboard.

Most people do not realize that the brain moves inside the skull and that even "minor" accidents can result in severe tearing, twisting, and bruising as the brain literally bangs up against the uneven, bony ridges of the skull's interior. The amount of force sufficient to cause brain injury has been quantified by government agencies such as the National Highway Traffic Safety Administration and the National Transportation Safety Board. Biomechanical experts can testify about these statistics and educate jurors about violent stressors on the brain's axons and the shearing of its cells.

Experts in biomechanical animation can make the science behind the injury come to life with a video representation of the account and its aftermath. These experts commonly use a mathematical equation including the velocity and direction of moving objects, the duration of the impact, and the plaintiff's body position, age, gender, height, and weight to determine the cumulative effect of these elements on the brain. (3) This effect is illustrated using a computer animation that depicts in three separate stages the motion of the vehicle or object causing the impact, the motion of the body inside the vehicle, and the motion of the brain inside the skull. (4)

Case-specific animation, where parameters such as weight and gender are specific to your client, is most accurate because different people can react differently to the same forces. In collisions of equal impact, for instance, women experience two times the acceleration force to the head as men do, because women generally have less strength in their necks. (5)

Case-specific animation is costly, but even if funds are limited, biomechanical evidence can still be used effectively. Several companies produce less-expensive CD-ROMs with generic images and short videos that show how acceleration and deceleration forces affect the brain. These tools can also show how rotational forces, centrifugal forces, and inertia cause the brain to move about inside the skull and cause injury. And because this evidence is not specific to a particular client or case, it can be used repeatedly.

Jurors will better understand biomechanics when they can see how the brain functions. Large, colored story boards and models of the brain, used in conjunction with expert medical testimony, can be effective.

However, even these simple visuals can be ratcheted up a notch. In an era when most people turn to television and the Internet for information, appealing to the jury's comfort zone--seeing images depicted on a screen or monitor--is simply common sense.

For example, PowerPoint is an inexpensive graphics tool. It doesn't take much more than an afternoon of instruction to learn how to use the program, and the training is an excellent investment. Story boards depicting the brain and its functions can be incorporated into a colorful PowerPoint presentation that will engage the audience.

PowerPoint is especially effective for grabbing jurors' attention during the plaintiff's opening statement by giving them a "big screen" overview of upcoming exhibits. This type of presentation forces the lawyer to organize his or her opening statement around the key evidentiary points of the case. (6) Even evidence not specific to the case--such as generic videos, biomechanical animations, or pictures of the brain--can be tailored to apply to your facts by integration of case-specific information onto the PowerPoint slide along with the generic image. The skilled attorney will revisit and reinforce these points during trial.

Neuroimaging

Once jurors "see" the accident through a biomechanical demonstration and understand the brain's vulnerability, the lawyer can show them the plaintiff's specific injury by way of neuroimaging.

While case law in this area is developing and courts are still wrestling with neuroimaging issues, (7) a recent decision in an aviation case under the Warsaw Convention highlights the importance of neuroimaging. Interpreting the phrase "bodily injury," the court determined that the plaintiff could recover for psychological components of an injury, such as post-traumatic stress disorder (PTSD), only when the psychological injury results from a physical injury to the brain. (8)

On October 31, 2000, Jane Doe boarded Singapore Airlines Flight SQ006 in Taipei, bound for Los Angeles. The weather was grim, as typhoon Xangsane was approaching from the south. At 11:17 p.m., the pilots attempted to take off, veered down the wrong runway in driving rain, and collided with construction equipment and materials. The plane broke apart and burst into flames, killing 83 people.

One of the 96 who survived, Jane was seated eight rows behind where the fuselage broke apart, in a section that suffered extensive fire damage. When the wreckage slid to a stop, Jane, who was hanging upside down in her seat, unbuckled the seat belt and fell to the ground with luggage crashing on top of her. She escaped through the smoke and flames, burned severely enough to require a five-day hospital stay.

Although she did not immediately know it, she also suffered a closed-head brain injury. Symptoms appeared almost immediately. For 18 months, she was treated with psychotherapy for nightmares, flashbacks, stress, personality change, loss of appetite, and weight loss.

An electroencephalogram (EEG) showed only a mild abnormality of uncertain significance on the right side of her brain, and an MRI of her brain was normal. But other medical evidence led two neurologists and two neuropsychiatrists to diagnose her as having mild traumatic brain injury and PTSD.

This evidence was produced during clinical evaluations that were critical for Jane's treatment and rehabilitation, but would it be sufficient to convince jurors of the extent of her injuries? It probably would not. To bolster this evidence, we arranged for her to have a positron-emission tomography (PET) scan. Whereas an MRI depicts the anatomy of the brain, a PET scan depicts the brain in action, measuring metabolic activity and detecting relative changes in brain physiology and function. Because PET scan images are colorful and clearly rendered, they can also provide jurors with dramatic visual evidence of brain dysfunction resulting from an otherwise invisible injury.

In a PET scan, a positron-emitting isotope of the element fluorine is injected into the patient and carried to the brain via the bloodstream. The isotope has sugar molecules attached to it, which are absorbed by active areas of the brain. The PET scan depicts the different levels of absorption in different parts of the brain, indicating areas where the brain's metabolic activity is high or low. The areas of higher metabolic activity are displayed on the scan in warm colors, such as red or orange, whereas areas of depressed metabolic function are shown in cool blues and greens.

Jane's PET scan showed abnormally large areas of cool colors, indicating diminished metabolism in the left cortical hemisphere, in the temporal and parietal lobes. PET scans in and of themselves are not diagnostic, but the results of this scan, combined with the EEG and neuropsychological testing, confirmed the presence of a brain injury that she sustained during the plane crash. The neuropsychiatrist who performed Jane's PET scan was also able to use this test to rule out Alzheimer's, Parkinson's, epilepsy, stroke, tumors, and schizophrenia.

Jane also underwent a single photon emission computerized tomography (SPECT) scan, which demonstrates brain function by mapping blood flow in the brain. The patient is injected with a radioactive substance that stays in the blood as it travels through the brain. A computer traces the path of the substance to produce a three-dimensional image of the brain and blood flow through it. Areas of decreased blood flow indicate brain injury. Jane's scan showed abnormal uptake in the left temporal lobe, again indicating an injury to her brain.

In some jurisdictions, especially those that follow the U.S. Supreme Court's holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., (9) PET and SPECT scans may not be considered valid and reliable methods to assess a head injury. In those places, the defense may argue that PET and SPECT are not used with sufficient frequency by clinicians in diagnosing mild traumatic brain injury and are therefore scientifically unreliable.

To beat a Daubert challenge, trial lawyers should cite the many peer-reviewed articles supporting the use of PET and SPECT in the diagnosis and assessment of traumatic brain injury. For instance, an article that evaluated the use of neuroimaging to establish mental disabilities in criminal defendants noted,

   The general scientific consensus is that
   most methods of PET and MRI scanning
   consistently produce useful information
   about brain status.... The ability of PET or
   MRI scanning to depict certain brain abnormalities
   is therefore sufficiently well established
   to meet the threshold test for validity
   and to qualify as a "proper subject for
   judicial notice." (10)

The same article also stated that courts can no longer dismiss these scans as "junk science." (11)

In Jane's case, all the scans were taken seriously. When the defense saw that Jane's attorneys had the physical evidence to prove her injuries, the case settled, and Jane collected significant damages from those responsible for harming her.

These and other new scanning technologies have had a significant impact on our understanding of invisible head injuries, just as other technologies have revealed previously unseen realms. We were told for decades that many galaxies existed well beyond our Milky Way, but many people did not believe that they were real, and most had a hard time visualizing them, until the Hubble telescope beamed images of them to Earth. Now that we've seen those pictures, we take it for granted that those far-off galaxies exist.

A new scanning tool called functional MRI may do for juries what the Hubble did for stargazers. One lawyer characterized its potential effect on litigating otherwise invisible injuries as "staggering." (12) Functional MRI can combine the high resolution of the best structural scans with the dynamic information about brain activity provided by PET and SPECT scans.

Most exciting is a new generation of MRI scanners that are twice as strong as their predecessors. This new technology doubles the resolution, making previously invisible injuries apparent. The new machines can also scan smaller sections of the brain, even as thin as one millimeter, improving the chances of finding evidence of an injury. Doctors can now make diagnoses that could not have been made before. (13) This will also allow plaintiff lawyers to rebut the likely defense claim that what a plaintiff is suffering from is a syndrome rather than a diagnosed injury. As more powerful MRIs become common, they will probably soon become the accepted standard for brain evaluations. (14) This, again, is encouraging news for trial lawyers who deal with Daubert challenges regularly.

Other new advances are on the horizon. Biomechanical engineers are working on a model of the brain that they believe will eventually become accepted for demonstrative use in the courtroom. The model is composed of a gel engineered to replicate the substance of the brain itself. The hope is that jurors will someday be allowed to touch and hold the gel-model brain, allowing them to see and feel how soft and fragile it is and understand what happens when, as one scientist put it, "the brain is tossed around inside the skull from an external impact." (15)

By teaching ourselves about the latest science and diligently continuing to push courts to accept different types of high-tech proof in mild to moderate brain injury cases, trial lawyers may improve the tools that they bring to court on behalf of clients who have suffered real injuries that were previously invisible. In the future, trial lawyers may even be able to use new technologies to provide a literal hands-on experience for jurors. This would likely enhance the power of persuasion even more. After all, in the words attributed to another famous philosopher, "the strongest arguments prove nothing so long as the conclusions are not verified by experience." (16)

Notes

(1.) American essayist, poet, and philosopher, 1803-1882.

(2.) Stephen M. Smith, The Defense Surveillance Video: The Plaintiff Looks "Normal, "2003 ATLA ANNUAL CONVENTION REFERENCE MATERIALS 1233.

(3.) Marius Ziejewski, How Plaintiffs Can Use Biomechanical Expertise in Automobile Cases (2004) (unpublished manuscript, on file with North Dakota State University).

(4.) Telephone interview with Marius Ziejewski, Director, Impact Biomechanics Laboratory, North Dakota State University (Feb. 15, 2005).

(5.) Id.

(6.) Mark Kosieradzki & Thomas J. Vesper, PowerPoint Openings: Is the Force with You?, 2004 ATLA ANNUAL CONVENTION REFERENCE MATERIALS 785.

(7.) See, e.g., Bobian v. CSA Czech Airlines, 232 F. Supp. 2d 319 (D.N.J. 2002); Turturro v. Continental Airlines, 128 F. Supp. 2d 170 (S.D.N.Y. 2001); Weaver v. Delta Airlines, Inc., 56 F. Supp. 2d 1190 (D. Mont. 1999).

(8.) In re Air Crash at Taipei on Oct. 31, 2000, No. MDL 01-1394 GAF (RCx) (C.D. Cal. Sept. 3, 2004).

(9.) 509 U.S. 579, 597 (1993).

(10.) Jennifer Kulynych, Psychiatric Neuroimaging Evidence: A High-Tech Crystal Ball?, 49 STAN. L. REV. 1249, 1265 (1997).

(11.) Id. at 1254.

(12.) Gordon Johnson, Breakthrough: The Most Modern MRI Techniques Are Now Showing Significant Pathologies in Subtle Brain Injury Cases (Oct. 2004) (unpublished manuscript, on file with author); see also http://neuro-imaging. net/mribreakthru.html (last visited Apr. 20, 2005).

(13.) Telephone interview with William Orrison, Chief of Neuroradiology, Nevada Imaging Center (Feb. 23, 2005).

(14.) Id.

(15.) Telephone interview with Marius Ziejewski, supra note 4.

(16.) Attributed to Roger Bacon, English philosopher, c. 1220-1292.

RELATED ARTICLE: Handle brain injury evidence expertly.

KENNETH I. KOLPAN

Presenting persuasive evidence of a client's minor traumatic brain injury requires the testimony of medical experts who assess and treat it. These experts typically include neurologists, physiatrists, neuropsychologists, psychologists, neuropsychiatrists, speech-language pathologists, occupational therapists, and radiologists.

But not every expert in these specialized fields will be able to help your case; within each specialty, only certain individuals and facilities accept patients with traumatic brain injury. The Brain Injury Association of America (www.biausa. org) and the North American Brain Injury Society (www.nabis.org) can help you find the experts you need. Both provide information regarding brain injury treatment programs and providers.

The linchpin of the medical evidence will be the testimony of the neuropsychologist, who will explain how objective tests he or she performed on the plaintiff will show how the plaintiff's brain functions. To testify regarding the causal relationship between the injury-causing event and the plaintiff's cognitive deficits, this expert must have extensive access to the plaintiff's pre-accident medical information, including pre-, peri-, and postnatal records; pediatric records; chiropractic records; records of prior treatment of traumatic brain injury; and psychotherapeutic and substance-abuse treatment records.

The neuropsychologist should also see the client's postaccident records, including the EMT/fire department report; emergency room records; rehabilitation treatment records; and treatment records for all other medical visits, including those to dentists and opticians or ophthalmologists.

Education records that this expert will need include nursery, elementary, secondary, and postsecondary school records; aptitude- and achievement-test results; records of guidance counseling received; discipline records; and records of special-education services received.

If the plaintiff is employed, make sure the neuropsychologist has copies of the plaintiff's employment application, personnel file, job description, and pre-employment medical examination.

The neuropsychologist should also receive copies of discovery-related documents, including

* motor vehicle accident reports

* accident photos

* the defendants' answers to your interrogatories 

* deposition transcripts

* the opposing experts' answers to your interrogatories

* treatises on which your experts or the defense experts will probably rely.

Define and conquer

In one of my first cases, a seasoned judge asked who my experts were. When I told him a physiatrist would be testifying, the judge asked, "Do you mean a psychiatrist?" Later, when the expert identified himself at trial as a physiatrist, the stenographer leaned back toward the witness and said, "Psychiatrist?"

Make sure your experts define the medical terms they use in describing the diagnosis and treatment of your client's injury. Most people do not understand terms like physiatry (a medical discipline focused on helping people who are suffering from disabilities due to injury or disease recover lost functioning), neuropsychology (the study of human behavior as it relates to normal and abnormal central-nervous-system functioning), and speech-language pathology (the study and treatment of speech, language, and swallowing disorders).

Your experts should explain what people in their profession do and their role in the evaluation or treatment of the plaintiff's injury. With the help of demonstrative evidence like an anatomical model of the skull and brain or an animation of how traumatic brain injury occurs, experts should explain

* what minor traumatic brain injury is

* how minor traumatic brain injury occurs

* why loss of consciousness is not necessary for injury to have occurred

* how seizures contribute to brain injury

* the significance of "second-impact syndrome"--when a second concussion occurs before the symptoms of an earlier concussion have completely cleared

* how brain injuries differ in each patient's case.

Your experts will do much of the heavy lifting in helping you prove that your client suffers mild traumatic brain injury. You can lighten their load by making sure they have all the information they need to ensure that their testimony is rock-solid and by offering the guidance they require to communicate their findings to the jury. This may take hours of pretrial preparation, but in the end you--and your client--will be glad you went the extra mile.

KENNETH I. KOLPAN practices law in Boston.

DONALD J. NOLAN is the founding partner of the Nolan Law Group in Chicago. TRESSA A. PANKOVITS is director of communications for the firm and a student at Chicago-Kent College of Law.