Refuting common defenses in traumatic brain injury cases.

Lawyers who by traumatic brain injury (TBI) cases must explain to jurors the impact of an often-subtle and unfamiliar injury. They also must challenge defense arguments that sound reasonable yet frequently are based on stereotypes and less-than-careful readings of the scientific literature. What follows is a list of common defenses in TBI cases and suggestions for refuting them.

Argument Number 1: The plaintiff has a low IQ now, but there is no way of knowing what his or her IQ was before the accident.

You may want to dismiss this argument out of hand, pointing out the improbability of a victim knowing he or she was going to be involved in an accident and rushing into a psychologists office for an IQ test. However, that's not enough. You will need to find some means of estimating the plaintiffs pre-accident intelligence.

Perhaps the most obvious method is to look at the plaintiff's prior education and employment. A psychologist should be able to testify whether the plaintiff s current IQ is consistent with what one would expect the plaintiff to have, given his or her employment and education. For example, a nonverbal IQ of 70 in an auto mechanic may support a finding of brain injury because skilled people who work with their hands generally score at least in the average range on performance tasks.

Other good sources may include (1) pre-accident medical records; (2) military and school records, which often contain evidence of testing; (3) comments or reports from family, friends, and coworkers; and (4) the plaintiff's claims history.

An alternative method of estimating pre-accident IQ -- one that yields a more precise number for comparison -- is the use of equations into which demographic variables such as occupation, education, or even prior substance abuse and criminal history are factored.(1)

Finally, you may want to test the plaintiff's reading ability with measures such as the National Adult Reading Test (NART). These tests measure performance generally considered to be resistant to most forms of TBI.

Argument Number 2: The plaintiff claims to suffer from both memory problems and depression, yet experts know that depression causes memory problems So, we cannot conclude the plaintiff is suffering from a brain injury.

The key here is the problem of differential diagnoses. Anyone familiar with the DSM-IV -- the guide to diagnosing and classifying mental illness -- is aware that there is often overlap of symptoms between one disorder and another. It is true that some symptoms of depression do mirror symptoms of TBI memory loss. However, a careful look at the diagnostic criteria for both is illuminating.

The DSM-IV definition for a major depressive episode lists as a symptom "diminished ability to think or concentrate, or in decisiveness."(2) The definition of mild TB includes "cognitive deficits," which are defined as those "involving attention, concentration, perception, memory, speech/language, or executive functions that cannot be completely accounted for by emotional state or other causes."(3) The key word in the definition is "completely."

There are two useful means of dealing with the defense attempt to write off the plaintiff's TBI as depression when the plaintiff is clearly suffering from both. First, defense counsel and their experts will argue that depression is treatable, therefore not likely to be permanent, and thus deserving of less compensation. However, if a regimen of antidepressive medication and/or therapy has failed to alleviate the depressive symptoms, including cognitive problems, this eliminates the possibility that the mood disorder "completely" accounts for the memory and attention problems. It also rules out the likelihood that the plaintiff is magically going to recover.

Another useful method is to recast damages in terms of a central cause and resulting symptoms. Explain to the jury that depression, memory loss, irritability, and confusion are symptoms, not causes. Were they causes, the treatment would have alleviated or even eliminated them. The cause of the symptoms is the TBI, which is not curable. While the symptoms may become manageable with time, they will not disappear because their cause is not going to disappear.

The best thing the plaintiff can do is undergo treatment with appropriate medication, such as tricyclic antidepressants,(4) and establish that there has been no improvement. Then it is easier to show that TBI, not depression, caused the symptoms.

Argument Number 3: CT, MRI, and EEG tests are negative. Therefore, the plaintiff has no brain injury.

In brief, a CT (computerized tomograph) is analogous to an X-ray of the brain, an MRI (magnetic resonance imaging) scan provides a three-dimensional image of the brain and other organs, and an EEG (electroencephalogram) provides a paper record of the brain's electrical activity.

CT scan -- typically administered in the emergency room to rule out the possibility of intracranial bleeding -- designed to compare the relative densities of neighboring regions of tissue. In cases of mild TBI, it is unlikely that there is structural damage or areas of missing tissue sufficient to render a CT scan positive. These scans also frequently underestimate the severity of many forms of brain trauma, such as diffuse axonal injury.(5) Indeed, in cases of mild TBI, it is rare for a patients CT scan to be positive.(6)

MRI scans are superior to CT scans in that they are better able to detect cranial bleeding and lesions and to detect the type of TBI resulting from contact of the brain with the inside of the skull (focal cortical contusions or coup-contrecoup injuries).(7) However, early MRI test results are only mildly predictive of chances for recovery.(8)

An EEG helps to diagnose seizures. But EEGs are not always effective in diagnosing acute TBI because of interference from pharmacological agents, electrical activity from other devices in the examining room, and the injured patients agitation.(9) Like CT scans, the EEGs of only a minority of TBI patients are abnormal.(10)

Another problem area is the quantification of EEG findings, known as qEEGs, or brain maps. These methods attempt to convert a simple qualitative reading of brain waves into a more quantitative, objective assessment. While the scientific community was initially excited over the introduction of this objective measure of brain activity, its use remains controversial.(11) The wise lawyer would do well to study the available literature and exercise caution in basing a case on these methods.

An expert neurologist should be able to testify both to the ability of CT, MRI, and EEG to detect gross damage and their inability to detect mild, often microscopic injury that can debilitate a patient. The neurologist should explain that given the limitations of these measures, neuropsychological testing is necessary both to pinpoint damage and to describe it in terms of lost functioning. Other specialists such as psychiatrists may be used, but juries seem to view neurologists, testimony more favorably.

Argument Number 4: The plaintiffs experts were selected by his or her attorney and are being paid to testify.

Defense lawyers often ask an expert how much he or she is being paid. A high hourly rate for testimony can bias the jurors against the expert giving the impression that the opinion, rather than the persons time, was bought To combat this, have the expert explain that he or she is charging for time, not for a given opinion.

If the expert is hopelessly expensive, explain that because you care so much about this case and about your clients care and treatment, you wanted the best professionals available, and the best cost a lot This technique introduces the idea of getting what you pay for and suggests that since a professional is so expensive, he or she must have a superior opinion to offer.

The defense lawyer will also often say, "His lawyer picked this doctor and sent the plaintiff there for this lawsuit not for treatment." Do not underestimate the impact of this attack. If you think the treating physician(s) cannot properly evaluate the plaintiff, provide a list of doctors and have your client choose one. Then have that doctor refer out for other services, such as neurological examinations or psychological or neuropsychological testing.

Be sure to provide all the doctors with your clients complete medical history and copies of all medical records (including those from before the accident@. This will prevent the disastrous cross-examination where your expert must admit it would have been helpful to have seen X, Y, and Z records, which were never provided. Not only does this undermine your experts opinion, but it also creates the impression that records were not provided because there is something to hide.

Argument Number 5: The plaintiff only has psychologists testifying - not "real doctors."

The reasoning behind this argument is that only M.D. professionals cut and medicate. Thus, they are the only ones who should diagnose brain injury.

To refute this, create a referral chain that begins with the plaintiffs own doctor, who refers out to a neurologist who in turn refers out for neuropsychological testing and therapy. Each professional testing can say that he or she, not the attorney, was the referral source and can also testify about the qualifications of and need for the next professional in the chain.

The key link is the neurologist who will testify about the need for neuropsychological testing and the credentials of the professional conducting it, even though he or she only has earned a "mere" Ph.D.

You should also use this method to authenticate your exhibits of TBI symptom lists. This can help you avoid the defense accusation that the exhibits were prepared by attorneys in the absence of health professionals and then foisted on the experts at trial. Ideally, experts should be able to testify that exhibits were compiled according to their directions and accurately reflect their opinions.

Argument number 6: How serious can the injuries be? The plaintiff didn't mm lose consciousness.

The layperson mill often expect brain injury to result in a coma-like state, or at least in the plaintiffs having been "knocked out" for an extended period. Yet mild TBI does not necessarily lead to loss of consciousness, merely a disruption in normal arousal, attention, and functioning, which can mean simply being briefly dazed or disoriented.(12) Since this criterion may run counter to the jury's expectations, it is important to have each expert confirm it in cases where there is no documented loss of consciousness.

Argument Number 7: The plaintiffs family and friends are too subjective to be credible witnesses.

A typical defense strategy is to try to show that plaintiffs are different now from before their accidents only in the minds of their own paid health professionals. Thus, experts alone will not refute this argument -- their professional opinions need to go hand in hand with testimony from Wily, friends, coworkers, and supervisors. It is one thing to have a psychologist testify that living with a brain-injured wife must be frustrating. It is quite another to hear the husband explain what a typical day was like before the accident and what a typical day is like after the accident, having to care for a loved one who can't remember things, or who is always irritable, or who suffers from chronic fatigue.

James W Schutte, an applied research psychologist, is a trial consultant both in private practice and in-house at the Law Offices of Mark E Howell Mark E Howell is a trial lawyer in El Paso, Texas. Note: A more complete set of endnotes may be obtained from the authors by calling [phone].

A final comment on lay witnesses: Use them not only to establish damages but also to prove liability. Your case is wobbly if the plaintiff is the sole or most credible witness in establishing who was at fault in the accident The plaintiff can hardly claim memory deficits with poor concentration and attention and then claim clear recollection of events surrounding the accident.

Argument Number 8: Head injury is

common, and the vast majority of people who

get a bump on the head,, turn out just fine.

As one defense neurologist recently testified, "Twelve million people a year in America have head injuries. Of these, roughly 10 million have injuries that are very minor. I consider your client falls in the majority, with a very minor injury." The flip side of these statistics, of course, is that there are 2 million cases of TBI annually. Of these, 70,000 to 90,000 people will remain permanently disabled.(13)

This defense testimony can actually work to the plaintiffs advantage. The fact that some kinds of head injuries are so common informs the jury that this is not a rare occurrence, and it also serves to deflate jurors, expectations that the plaintiff he incoherent bedridden, or in a wheelchair. Head injury is a continuum, ranging from minor to so severe as to result in death. Each expert should confirm that TBI victims can appear physically normal at first blush despite tremendous cognitive deficits.

While it is true that most recovery from TBI occurs within the first year after injury, recovery occurs in a curvilinear fashion, reaching a plateau at about two years post-injury.(14) Those older than 45 years and those with a history of previous head injury have less chance of recovery.(15) Those with a history of substance abuse and those without social support networks fare even worse.(16)

Another twist on this defense argument is to attack the medication compliance of a TBI patient suffering from memory problems. Defense counsel will ask the treating physician to describe what steps were taken to ensure the plaintiff took his or her medication as prescribed and complied with the treatment regimen. Counsel will then look for gaps in compliance and ask if it is reasonable to expect improvement if a person is not taking medication as prescribed or is missing appointments.

To counter this argument emphasize the distinction between symptoms and causes. The plaintiff is taking medication to treat the symptoms of TBI, not the cause, which cannot today be cured even with an entire pharmacy of drugs.

Have family members testify about the steps they took to ensure the plaintiff complied with the treatment plan and the frustration they felt when they realized the plaintiffs memory deficits were not going to go away. Stress that noncompliance is common in TBI patients and is caused by the cognitive deficits that affect them.

Argument Number 9: Neuropsychological 

tests are inconsistent and silly.

The defense may denigrate neuropsychological testing on the basis that it is not uniform and that different neuropsychologists use different tests.(17) The key to rebuttal here is to have your expert explain what he or she is looking for or attempting to evaluate in using a particular test. Explain what kind of functioning each test measures, how an uninjured person would perform on each test, and how the plaintiff performed and why.

Once the jury understands what the expert was measuring, he or she can explain why a particular test was selected. The expert should stress the size of the patient database used in creating these tests. Obviously this requires an expert with teaching talent who is able to explain complicated ideas in simple terms.

The defense may also criticize the tests as "silly" because they ask the subject to engage in activities such as finger tapping, placing pegs in holes, and playing connect-the-dots. Again, the expert must explain what type of brain functioning these tests measure. Consider having the neuropsychologist bring in samples of results produced by brain-injured individuals. Explain that these tests do seem simple and then ask how a person who cannot even connect dots or place pegs in a board must have to struggle in dealing with routine problems of daily life.

Often, defense lawyers like to draw attention to tests such as the Minnesota Multiphasic Personality Inventory (MMPI). This measure consists of roughly 500 true/false questions and is frequently given in psychological evaluations to diagnose pathology. The defense may point out that the plaintiff received high scores on hypochondriasis, hysteria, and depression. This will get an admission that to some extent the MMPI tests personality traits that preexisted the accident The implication is "the plaintiff was an emotional mess before the accident."

Rebuttal should come from your expert psychologist, who should explain that the MMPI is misnamed as a personality measure. Even a casual glance at the scales, or characteristics, provided in an MMPI report shows that this test is measuring pathologies rather than personality traits.

Pathology can, of course, develop in response to environmental stressors or life events such as death or injury. As for the typical elevations in the depression, hysteria, and hypochondriasis scales often seen in TBI patients, some researchers are recommending a correction factor be applied to these scales before reporting them if the patient has a head injury.(18)

Argument number 10: The plaintiff is

malingering or engaging in "secondary gain"

behavior.

Malingering is defined as "the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives."(19) Secondary gain can be defined as refusing to get well because of the benefits of being considered injured (reduced workload or money from a claim or lawsuit for example).

Unfortunately for trial lawyers, the DSMIV recommends therapists "strongly" suspect malingering whenever two or more the following are present. the patient has presented to the doctor at the lawyer's suggestion, there is a significant discrepancy between claimed injuries and objective findings, the patient is not cooperating in the diagnosis and treatment, or there are psychopathic tendencies in the patient.(20)

This can pose a problem if you send the plaintiff to a doctor and later the plaintiff doesn't take her medicine as she should because of memory problems. You can avoid this problem by using professionals familiar with the realities of treating TBI patients and by anticipating questions about the referral chain of experts and treatment compliance (see Arguments 4, 5, and 8).

Be sure your neuropsychologist is prepared to answer the question of whether he or she considered malingering when evaluating the plaintiff. There are a number of ways to rule out malingering, in addition to the traditional clinical interview and the MMPI.(21) These include administering forced-choice tests(22) and floor-effect tests(23) and examining patterns of responses on traditional neuropsychological measures such as the Halstead-Reitan or Wechsler Memory Scales.(24) Having your expert perform at least one of these tests will go a long way toward combating this defense.

If defense counsel cannot get your expert to admit the possibility of malingering, they may get him or her to admit the possibility of secondary gain, particularly where the plaintiff's symptoms persevere. Point out that research has found the long-term effects of TBI last beyond the resolution of legal matters.(25) Explain that family conflicts, marital problems, job loss, and constant headaches are a huge price to pay for being pampered by others or waiting years for a possible judgment in a lawsuit. The example of the classified ad that offers an amount of money in exchange for suffering the plaintiff's damages may be useful in explaining the impracticality of someone not wanting to recover from TBI.

Trying TBI cases is both challenging and rewarding -- challenging because of the nature of the injury and well-honed defense arguments and rewarding because of the opportunity to see real justice done for victims of this subtle but horribly debilitating injury. Anticipating the defense tactics described here may make it easier to obtain good results for deserving clients.

Notes

(1.) Current research favors the Oklahoma Premorbid Intelligence Estimate, which gives a numerical estimate of premorbid IQ based on variables of Wechsler subtest performance, age, ethnicity, occupation, and education. David J.G. Williamson et al., Traumatic Brain Injury, in NEUROPSYCHOLOGY FOR CLINICAL PRACTICE 16 (Russell L. Adams et al. eds., 1996).

(2.) AMERICAN PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 320, 322, 327 (4th ed. 1994).

(3.) American Congress of Rehabilitation Medicine, Definition of Mild Traumatic Brain Injury, 8 J. HEAD TRAUMA REHABILITATION 86-87 (1993) (emphasis added).

(4.) W. Jerry Mysiw & Rebecca D. Jackson, Tricyclic Anti-depressant Therapy after Traumatic Brain Injury, 2 J. HEAD TRAUMA REHABILITATION 34-42 (1987).

(5.) Lindell R. Gentry et al., MR Imaging of Head Trauma: Review, of the Distribution and Radiopathologic Features of Traumatic Lesions, 150 AM. J. ROENTGENOLOGY 663-72 (1988).

(6.) Williamson, supra note 1, at 13.

(7.) Id.

(8.) J.T.L. Wilson et al., Early and Late Magnetic Resonance Imaging and Neuropsychological Outcome After Head Injury, 51 J. NEUROLOGY, NEUROSURGERY, & PSYCHIATRY 391-96 (1988).

(9.) Williamson, supra note 1, at 13.

(10.) Randolph W Evans, The Postconcussion Syndrome and the Sequelae of Mild Head Injury, 10 NEUROLOGIC CLINICS 815 (1992).

(11.) E. Michael Kahn et al., Topographical Maps of Brain Electrical Activity - Pitfalls and Precautions 23 BIOLOGICAL PSYCHIATRY 628-36 (1988).

(12.) American Congress of Rehabilitation Medicine, supra note 3.

(13.). NATIONAL INST. OF NEUROLOGICAL DISORDERS AND STROKE, INTERAGENCY HEAD INJURY TASKFORCE REPORT (1989).

(14.) C.L. Jones, Recovery from Head Trauma: Is It a Linear Process? in HANDBOOK OF HEAD TRAUMA. ACUTE CARE TO RECOVERY 247-70 (Charles T. Lang & Leslie K. Ross eds., 1992).

(15.) Williamson, supra note 1, at 15.

(16.) Id.

(17.) David Faust, Neuropsychological (Brain Damage) Assessment, in 2 COPING WITH PSYCHIATRIC AND PSYCHOLOGICAL TESTIMONY 927 (Jay Ziskin ed., 5th ed. 1995).

(18.) See Carlton S. Gass, MMPI-2 Interpretation and Close Head Injury: A Correction Factor, 3 PSYCHOLOGICAL ASSESSMENT 27-31 (1991). Compare John T. Dunn et al., MMPI-2 correction Factor for Closed-Head Injury: A Caveat for Forensic Cases, 2 ASSESSMENT 47-51 (1995).

(19.) AMERICAN PSYCHIATRIC ASS'N, supra note 2, at 683.

(20.) Id.

(21.) David T.R. Berry et al., Detection of Malingering on the MMPI: A Meta-Analysis, 11 CLINICAL PSYCHOL. REV. 585-98 (1991).

(22.) L.M. Binder, Deception and Malingering, in HANDBOOK OF NEUROPSYCHOLOGICAL ASSESSMENT: A PSYCHOSOCIAL PERSPECTIVE 353-74 (Antonio E. Puente & Robert J. McCaffrey eds., 1992).

(23.) MURIEL DEUTCH LEZAK, NEUROPSYCHOLOGICAL ASSESSMENT 802-03 (3d ed. 1995).

(24.) Russell L. Adams & Eugene J. Rankin, A Practical Guide to Forensic Neuropsychological Evaluations and Testimony, in NEUROPSYCHOLOGY FOR CLINICAL PRACTICE 478-81 (1996).

(25.) See Thomas W. McAllister, Mild Traumatic Brain Injury and the Postconcussive Syndrome, in NEUROPSYCHIATRY OF TRAUMATIC BRAIN INJURY 357-02 (Jonathan M. Silver et al. eds., 1994).