Defending Mild TBI Cases—
Integrating Medicine and Strategy
J. Ric Gass
Brian G. Cahill
Gass Weber Mullins LLC
309 N. Water Street, Suite 700
Milwaukee, WI 53202
[email protected]
[email protected]
J. Ric Gass is one of the founding members of Gass Weber Mullins and wellrecognized for his talents as a preeminent trial lawyer. He has tried over 300 cases to
verdict from the Florida Keys to Maui and from Newark to Montana. His specialty
area is catastrophic injury and major damage cases whether the liability setting is
general or professional negligence, premises liability or product liability. He has
been elected a Fellow in the ACTL, LCA and the ISOB. He is a Diplomat in ABOTA.
He has been elected to both the FDCC and the IADC. He is a past president of the
FDCC, LCJ and Litigation Counsel of America. He has also been designated as the
Life Dean of the Trial Law Institute of the LCA.
Brian G. Cahill is one of the founding members of Gass Weber Mullins and helps
direct the firm’s IT strategies. Mr. Cahill practices in the area of civil trial law, with
his primary areas of practice in commercial and personal injury litigation. His
practice includes cases in Wisconsin state and federal courts as well as a variety of
jurisdictions outside of Wisconsin. Mr. Cahill is admitted to practice in the State
of Wisconsin, the Federal District Courts for the Eastern and Western Districts of
Wisconsin and the Northern District of Indiana, and the Federal Courts of Appeal
for the Fifth and Seventh Circuits.
The author wishes to thank Sara C. Broaders, Ph.D. of Northwestern University’s
Department of Psychology for her thoughtful comments on a draft of this article.
Defending Mild TBI Cases—Integrating
Medicine and Strategy
Table of Contents
I.
II.
III.
IV.
V.
VI.
The Fearless Defense of Mild TBI Cases....................................................................................................107
Brain Anatomy............................................................................................................................................107
Basic Types of TBI.......................................................................................................................................107
Defining mTBI.............................................................................................................................................108
mTBI Sequelae............................................................................................................................................109
Defense TBI Experts...................................................................................................................................110
A. Neuropsychology Expert.....................................................................................................................110
B. Neuroradiology Expert.......................................................................................................................110
C.Psychiatrist/Psychologist....................................................................................................................111
D. Biomechanical Expert.........................................................................................................................111
E. Neurology Expert................................................................................................................................111
VII. Written Discovery.......................................................................................................................................111
VIII. Cross Examination Specific to mTBI Cases...............................................................................................112
A.Plaintiff.................................................................................................................................................112
B. Plaintiff ’s Neuropsychologist..............................................................................................................113
C. Plaintiff ’s Neuroradiologist.................................................................................................................115
IX.Conclusion...................................................................................................................................................117
Defending Mild TBI Cases—Integrating Medicine and Strategy ■ Gass and Cahill ■ 105
Defending Mild TBI Cases—Integrating Medicine and Strategy
I. The Fearless Defense of Mild TBI Cases
Trepidation (trĕp' ĭ-dă' shәn) n. 1. A state of alarm or dread; apprehension. See Syns at “fear.” 2.
An involuntary trembling. The American Heritage College Dictionary at 1442 (3rd ed. 1993).
When a traumatic brain injury case arrives in the office, many defense lawyers and those managing personal injury claims need not look up the definition of trepidation in the dictionary. Instead, they need
merely look into that emotional space between the heart and the belly to understand the meaning of the word.
For a variety of reasons, Traumatic Brain Injury (“TBI”) cases can be some of the most challenging cases a
lawyer will ever face, whether that lawyer is for the plaintiff or the defense.
This article addresses some of the concepts, resources, tactics, and strategies that a lawyer needs to
defend a case alleging Mild TBI (“mTBI”). Every TBI case is unique, and the information offered here is a
starting point for developing the sophisticated knowledge and strategy needed to fearlessly defend an mTBI
case. Although not specifically addressed, many of the same concepts and strategies are useful in moderate
TBI cases. Severe TBI cases usually require a completely different approach that is beyond the scope of this
article.
II. Brain Anatomy
When defending a brain injury case, the starting point for any attorney is to learn basic brain anatomy and the functional areas of the brain. Defense attorneys must learn basic brain anatomy and functional
areas of the brain in order to have any kind of meaningful interaction with their own and opposing experts.
In particular, this basic knowledge helps the defense attorney understand and formulate strategies around the
question of whether claims of brain-injury deficits match the areas of the brain claimed to be injured.
Neuropsychological Assessment, considered by many neuropsychologists as the bible for neuropsychological diagnostics, contains an in-depth discussion of the anatomy of the brain and its interrelationship with
functional deficits arising from brain insults. Muriel D. Lezak et al., Neuropsychological Assessment, ch. 3, (5th
ed. 2012). Attorneys defending mTBI cases should have this definitive treatise on their bookshelf.
III. Basic Types of TBI
Most authorities classify two types of TBI injury: penetrating and closed head. The names of these
classifications are self-explanatory. Penetrating injuries are those involving trauma that penetrates the skull,
causing direct injury to brain tissue. Closed-head injuries are more common and are those injuries in which a
force to the skull causes injury to the brain without penetrating the skull. Although closed-head injuries often
arise from a blow to the head, they also can arise from a sudden acceleration or deceleration of the skull which
movement causes a whiplash-type injury to brain tissue.
Injury to the brain under the impact point of the blunt force is a coup injury. In addition, a patient
can sustain a contrecoup injury to the side of the brain opposite the point of impact when the brain rebounds
inside the skull. The patient can also sustain a Diffuse Axonal Injury (“DAI”) throughout the brain when sudden movement of the brain within the skull creates a stretching or shearing injury to the brain’s neurons and
axons. Finally, a lack of oxygen to parts of the brain due to blunt force damage or chemical interference can
cause an anoxic or hypoxic injury to the brain tissue.
Defending Mild TBI Cases—Integrating Medicine and Strategy ■ Gass and Cahill ■ 107
Chemical exposure, such as carbon monoxide exposure, is a third type of brain injury and many of
the concepts presented here for defending closed-head mTBI claims apply also to defending chemical exposure injury cases.
IV. Defining mTBI
In addition to classifying TBI as penetrating or closed head, a TBI is also classified as mild, moderate,
or severe. A penetrating-type injury is seldom, if ever, classified as mild. It is important to note that classification from mild to severe describes the acute phase of the TBI and does not relate to the patient’s prognosis for
recovery or the effects (sequelae) of the TBI. For example, although a patient’s TBI may be classified as mild, it
is possible that a patient with mTBI may have more lasting deficits than a patient with moderate TBI.
TBI classified as mild account for 75 percent or more of all TBI. Centers for Disease Control and Prevention, Report to Congress on Mild Traumatic Brain injury in the United States: Steps to Prevent a Serious Public Health
Problem, at Introductory Letter, 9-10 (2003). (“CDC Report”) There is no consensus for defining mTBI, particularly as differentiated from moderate and severe TBI. See, id. at 11. Historically, however, the Glasgow Coma Scale
(“GCS”) has been used to categorize the severity of TBI, with GCS scores of three to eight labeled severe, scores of
nine to 12 labeled moderate, and scores of 13 to 15 labeled mild. Id. at 7. Information on the GCS scoring system
can be found at http://www.brainline.org/content/2010/10/what-is-the-glasgow-coma-scale.html.
Nevertheless, most practitioners recognize the limits of the GCS scoring system and look to additional indicators to categorize TBI severity. For example, the Mayo Classification System was developed to
more accurately assess TBI severity. The Mayo Classification System looks to multiple symptoms and tests
including: duration of lost consciousness, neuroimaging study results, GCS, duration of post-traumatic amnesia, skull fracture, brain hemorrhages and contusions. An explanation of the Mayo Classification System can
be found at http://omicsgroup.org/journals/improving-the-classification-of-traumatic-brain-injury-the-mayoclassification-system-for-traumatic-brain-injury-severity-2165-7939.S4-005.pdf.
In response to the lack of a standardized definition of mTBI, the CDC proposed the following Conceptual Definition of mTBI:
A case of mild traumatic brain injury is an occurrence of injury to the head resulting from blunt
trauma or acceleration or deceleration forces with one or more of the following conditions attributable to the
head injury during the surveillance period:
• Any period of observed or self-reported transient confusion, disorientation, or impaired consciousness;
• Any period of observed or self-reported dysfunction of memory (amnesia) around the time of
injury;
• Observed signs of other neurological or neuropsychological dysfunction, such as—
• Seizures acutely following head injury;
• Among infants and very young children: irritability, lethargy, or vomiting following head
injury;
• Symptoms among older children and adults such as headache, dizziness, irritability,
fatigue, or poor concentration, when identified soon after injury, can be used to support
the diagnosis of mild TBI, but cannot be used to make the diagnosis in the absence of loss
of consciousness or altered consciousness. Further research may provide additional guidance in this area.
108 ■ Complex Medicine ■ November 2014
• Any period of observed or self-reported loss of consciousness lasting 30 minutes or less.
CDC Report at 16. In addition, the report specifically excluded an injury from the mild category if the
patient had any of the following three conditions: (1) loss of consciousness for more than 30 minutes, (2) posttraumatic amnesia lasting longer than 24 hours, and (3) penetrating craniocerebral injury. Id. at 17.
So what does this mean for the attorney defending a TBI case? Because many TBI professionals will
admit that most mTBI patients make a full recovery, plaintiff ’s counsel will often attempt to use the shifting classification guidelines to place the plaintiff ’s injuries into the moderate or severe TBI category. In fact
there is a movement by some plaintiff attorneys and their pliable experts to put forth the argument that there
is no such thing as a “mild” TBI. See, e.g., Spencer Lucas, There Is No Such Thing As A “Mild” Traumatic Brain
Injury, Advocate, Jan. 2013. (available at http://www.psblaw.com/wp-content/uploads/2013/01/ThereIs No
SuchThingAsAMildTraumaticBrainInjuryAdvocate.pdf). Instead they argue that no sequela from a traumatic
is mild due to the substantial impact on the plaintiff ’s enjoyment of life. This argument is contrary to established medical terminology (albeit subject to multiple definitions) and near full recovery by most persons who
sustain mTBI. As a result, defense counsel should consider a motion in limine to exclude any argument that no
TBI is mild because it is contrary to established medical principles.
V. mTBI Sequelae
There are a plethora of symptoms and deficits that can be attributed to mTBI. We organize mTBI
sequelae into two basic categories based on the origin of the sequelae: organic and psychological. The organic
category encompasses cognitive and motor deficits arising from physical injury to the organic structures of
the brain. The psychological category encompasses those sequelae that may result from the injury, but may
not be the direct result of physical injury to the organic structures of the brain. For example, a patient who
truly experiences cognitive deficits from mTBI may experience depression due to the patient’s recognition of
the mTBI deficits. The following are a few examples of potential mTBI sequelae in each category.
Organic in Origin
•
•
•
•
•
•
•
•
•
•
Memory Impairment
Sensory Memory Impairment
Executive Function Impairment
Psychomotor Impairment
Decreased Emotional Regulation
Attention/Concentration Impairment
Sleep Disorders
Aphasia
Visuospatial Impairment
Headaches
Psychological in Origin
•
•
•
•
•
•
•
•
•
Depression
General Anxiety Disorder
Decreased Emotional Regulation
Post-Traumatic Stress Syndrome
Sleep Disorders
Impulse-Control Disorder
Adjustment Disorders
Personality Disorders
Substance Abuse
While it is true that the constructs in the organic column are those most commonly measured in
neuropsychological testing, many of the disorders in the psychological column can also be caused or exacerbated by organic damage. The classic 19th century case of Phineas Gage was one of the first to demonstrate
that physical damage to the brain may cause what look like “psychological” symptoms such as mood, emotion, and impulse-control disorders. The defense attorney must always keep in mind that it is well-established
that psychological functions and disorders are fundamentally rooted in the functioning of the physical brain.
While it is often the case that these sorts of psychological disorders may be from psychological causes, they
may also be caused by organic brain deficits.
Defending Mild TBI Cases—Integrating Medicine and Strategy ■ Gass and Cahill ■ 109
When reviewing this partial list of sequelae claimed by mTBI plaintiffs, one will note that all of these
sequelae are not unique to persons who sustain TBI. Instead, they are found in the general population of persons who have not sustained any kind of brain injury. This raises the question whether an mTBI plaintiff ’s
symptoms were in fact caused by the claimed TBI event. As a result, significant areas of inquiry with plaintiff
TBI experts are (1) what the plaintiff ’s baseline condition was before the TBI event, (2) how the expert determined the plaintiff ’s baseline, and (3) what facts and testing led the expert to conclude that the plaintiff has a
statistically significant impairment compared to the plaintiff ’s pre-morbid condition.
VI. Defense TBI Experts
As in most cases, the defense attorney may need to retain a vocational rehabilitation expert, an economist, a rehabilitation medicine physician, and a life care planner. Although there may be small nuances in
how these experts approach a TBI case, there is little unique in dealing with those experts. There are a number
of experts, however, that play unique roles in mTBI cases. Once the defense attorney has learned the basics of
brain anatomy and how to define mTBI, it is essential the attorney retain a team of accomplished experts that
specialize in TBI injuries.
A. Neuropsychology Expert
The starting point for setting up the defense mTBI expert team is to retain an experienced neuropsychologist who is not only a good communicator and teacher, but someone who has the substantial time and
availability to (1) teach counsel about the neuropsychology testing performed by plaintiff ’s experts, (2) dive
into the raw neuropsychology testing data used by plaintiff ’s experts, and (3) perform additional neuropsychological testing. Unlike most psychiatrists and psychologists, the neuropsychologist will offer opinions that
seem to objectively quantify the plaintiff ’s cognitive and motor deficits. As will be explained later, most cases
offer the opportunity for effective cross examination of plaintiff ’s neuropsychologist, but the defense neuropsychologist is needed first to interpret the data underpinning the opposing neuropsychologist’s opinions. It
is important to get the defense neuropsychologist involved early so she can help develop discovery requests
related to neuropsychological testing and treatment and to help develop a scientifically defensible strategy for
attacking the plaintiff ’s neuropsychological damages claim.
B. Neuroradiology Expert
More and more, plaintiffs are relying on neuroimaging to bolster their mTBI cases. The defense
attack on mTBI cases has often relied, at least in part, on the lack of any objective evidence of injury, because
most mTBI claimants do not have any physical indication of a brain injury. In response, plaintiffs have turned
to questionable neuroimaging techniques or interpretations in an attempt to show objective evidence of
injury, because a picture is worth a thousand words. Once the plaintiff can get the jury to accept there is objective evidence of permanent, physical injury to the brain, it is a small step for the jury to find permanent mTBI
functional deficits. As a result, it is essential to hire a neuroradiologist who has strong expertise in accepted
and newer neuroimaging techniques, including CAT (computerized axial tomography) and PET (positron
emission tomography) scans, SPECT (single photon emission computerized tomography), MRI (magnetic resonance imaging), fMRI (functional MRI), and DTI (Diffusion Tensor Imaging).
Finding a neuroradiologist with sufficient expertise in this area can be difficult. For example, in an
out-of-state case we recently defended, a neuroradiology professor from a local university was retained by
local counsel to review MRI, CAT, fMRI, and DTI imaging performed by a neuroradiologist whose work is
focused on testifying for plaintiffs in TBI cases. The retained defense expert reviewed the imaging and report
110 ■ Complex Medicine ■ November 2014
of plaintiff ’s expert and found he could not disagree with any of the opinions offered by plaintiff ’s expert.
Upon exploring his opinions, we found the professor had no real hands-on experience with fMRI or DTI
scans. A subsequent review by a neuroradiologist with experience with those scans revealed significant deficiencies in plaintiff ’s expert’s opinions that were then effectively discounted during plaintiff ’s expert’s deposition. Neuroradiology is evolving rapidly, and it is imperative that the defense lawyer retain a neuroradiologist
who is comfortable with the evolving technology. This is particularly true in cases where the plaintiff relies on
fMRI and DTI technology.
C.Psychiatrist/Psychologist
Neuropsychologists often address plaintiff ’s claims of both organic and psychological injury, and
it may seem unnecessary to double up experts by also retaining a psychiatric expert. Nevertheless, in some
cases a clinical psychiatric expert is better able to explain the transient nature of the psychiatric sequelae and
the treatments that can effectively eliminate or mitigate these disorders such that there is no permanent functional impact on plaintiff ’s life.
D. Biomechanical Expert
mTBI cases arise because some amount of force has been applied to plaintiff ’s skull. We have seen
increasing numbers of plaintiff attorneys turning to biomechanical experts to explain the forces behind coup
and contrecoup impacts to plaintiff ’s skull and the movement of the brain’s soft tissue within the skull. This is
particularly true in DAI cases where initial CAT scans and MRIs do not reveal any physical injury to the brain.
Plaintiffs point the jury to the biomechanical calculations of force applied to the brain and its movement
within the skull to overcome the lack of physical evidence of injury. The calculation of these forces requires a
substantial number of assumptions that need to be tested and challenged. A biomechanical expert is needed
to effectively challenge that testimony at trial and to provide the defense attorney with the tools to effectively
cross examine plaintiff ’s expert.
E. Neurology Expert
There was a time when neurologists were essential experts in any brain injury case, but the use of
neurologists has lessened as neuropsychologists have come to be the principal experts in mTBI cases. In light
of the wide acceptance of neuropsychological testing to quantify the extent of impaired function from mTBI,
neurologists now have a much smaller role in mTBI cases. Nevertheless, they still provide valuable insight on
psychomotor impairment claims and some of the physical manifestations of cognitive impairment. For example, a plaintiff claimed to have word finding difficulty as a result of mTBI. Whenever this plaintiff was having
difficulty, she would display exaggerated hand motions that the neurologist was able to opine were completely
inconsistent with the TBI-induced aphasia she claimed to suffer. Although neurologists play a smaller role in
mTBI cases, it is important to retain a neurologist for case review and consulting on neurological issues that
can be raised with other experts, even if the doctor will not be identified as a testifying expert.
VII. Written Discovery
As in most cases, defense counsel should send early written discovery requests for basic documentary
information about the plaintiff ’s condition. In particular, the requests should ask for at least the following:
• all past and current medical providers;
• releases for prior medical records;
Defending Mild TBI Cases—Integrating Medicine and Strategy ■ Gass and Cahill ■ 111
• all past and current psychiatric providers and expert witnesses;
• releases for all prior psychiatric records;
• all past and current neuropsychology providers and expert witnesses;
• releases for all prior neuropsychology records, including all raw data from neuropsychological
testing
• description of military service, including military occupations and dates and locations of service;
• a request for a release of all military records using Standard Form SF180 (a pdf version of the
form can be downloaded at: http://www.archives.gov/research/order/standard-form-180.pdf.);
• all educational institutions attended, including elementary school;
• releases for all past and current educational records;
• all past and current employers;
• releases for all past and current employment records;
• for the period of five years before the mTBI incident through the present, identification of all
entities with whom the plaintiff had bank accounts, credit card accounts, ATM cards, and investment accounts;
• user names for all social media sites, including without limitation Facebook, Twitter, Linked-In,
and Instagram;
• if the plaintiff has a Facebook account, a copy of plaintiff ’s Facebook data, which can be obtained
by plaintiff selecting “Download a copy of your Facebook data” under “Settings” on the plaintiff ’s
Facebook page; and
• copies of all photos and videos in which plaintiff appears for the period five years before the
mTBI incident through the present.
The above list does not encompass all discovery requests defense counsel may want to make, but
these requests should be made at the start of every mTBI case. Undoubtedly, plaintiff will object to the
requests as overbroad in time and nature, but defense counsel should stand firm in requesting the data
because it is necessary to determine the plaintiff ’s pre-morbid condition as compared to plaintiff ’s current
condition. We find that requests for financial information are strongly resisted by plaintiffs, but this data is
helpful in understanding plaintiff ’s activities. With the decreased use of cash in our society, credit card and
ATM card data often provides an inside view of plaintiffs’ daily activities and travel that may be inconsistent
with their claimed deficits from the mTBI. Photos and especially videos are illuminating, as they often show
plaintiff enjoying life outside the world of litigation.
VIII. Cross Examination Specific to mTBI Cases
The cross examination of all types of witnesses in mTBI cases is beyond the scope of this article.
Instead, this will address three kinds of witnesses that seem to create the most anxiety for lawyers defending
mTBI cases: the plaintiff, the plaintiff ’s neuropsychologist, and the plaintiff ’s neuroradiologist.
A.Plaintiff
There should be no question that the deposition of an mTBI plaintiff should be videotaped in high
definition. In addition to the fact that video impeachment of the plaintiff at trial is more effective than reading
from a transcript, often the plaintiff will look better during a longer video deposition than at trial. For exam112 ■ Complex Medicine ■ November 2014
ple, we have seen plaintiffs at trial try to demonstrate short-term memory loss during their trial examination,
but seemingly innocuous questions at deposition about how they traveled to the deposition, what they ate for
breakfast, what they did the night before the deposition, and similar questions belie the claimed short-term
memory issues raised at trial. In addition, the video deposition testimony can be used by defense experts to
help formulate and support their opinions.
The question that remains is when to take the plaintiff ’s deposition. Often the natural order of depositions is to take the plaintiff ’s deposition before the depositions of plaintiff ’s damages experts. There are
different considerations, however, in an mTBI case. If the defense lawyer first takes an mTBI plaintiff ’s deposition before the damages experts to inventory the brain injury deficits claimed by plaintiffs, we have found
the experts merely explain that the brain injury prevents plaintiff from recognizing all of his deficits. The
plaintiff ’s experts then add to the deficits elucidated by plaintiff, and usually the defense will not have another
opportunity to question plaintiff regarding the deficits added by his expert. As a result, defense counsel should
strongly consider taking the depositions of plaintiff ’s damages experts before deposing plaintiff. This allows
the defense to fully test the deficits claimed by those experts.
There are many obstacles that arise in the deposition and trial cross examination of a plaintiff, not the
least of which is the trained response: “I am sorry counsel, but I don’t have the ability to answer that question
because your client gave me a brain injury.” Although it is important to demonstrate your natural empathy
during cross examination, the defense lawyer must remain firm, persistent and creative in attacking the plaintiff ’s damages claims from different angles. The plaintiff ’s testimony at trial and on video may be the jury’s
most compelling evidence about the extent to which the plaintiff suffers permanent brain deficits, if any, from
the claimed mTBI. It is not the time to be timid during cross examination of the plaintiff. Instead, it is the time
to be most fearless and creative.
B. Plaintiff’s Neuropsychologist
There are articles on defending mTBI cases which advise defense counsel to conduct minimal cross
examinations of neuropsychologists, as there is little to gain unless the neuropsychologist is obviously incompetent. We respectfully disagree with that approach. We believe it is important to effectively cross examine
all of plaintiff ’s damages experts. Although the cross examination of the neuropsychologist may be the most
daunting, it may be the most important expert to discredit in cross examination, as plaintiff attorneys will
often point to their neuropsychological testimony and testing as objective evidence of lasting injuries from
the mTBI event. Rather than leave the jury’s decision on the neuropsychological issues to a simple battle of
the experts, the well-prepared defense attorney can help tilt that decision in her favor with an effective cross
examination of the expert.
Before taking the deposition of plaintiff ’s neuropsychologist, it is imperative that defense counsel
obtain all of the neuropsychologist’s test scores and raw data. More often than not, the neuropsychologist will
refuse to supply defense counsel with raw test data, claiming copyright issues and the inability of a lay person
to interpret raw data. Both of these objections can be overcome by requesting that the raw data be supplied
directly to the defense neuropsychologist, who can then advise defense counsel on the best ways to use the test
data to attack the opinions of plaintiff ’s expert.
Next, defense counsel should become familiar with the basic principles of neuropsychology. Neuropsychological Assessment may be the best place to start. We have yet to find a neuropsychologist who will not
admit that this work is probably the most authoritative treatise on the subject, and many of the principles
explored in the treatise provide fertile ground for cross examination. This treatise provides information on the
many cognitive and psychomotor functions that are tested in a complete neuropsychological workup, includDefending Mild TBI Cases—Integrating Medicine and Strategy ■ Gass and Cahill ■ 113
ing executive function, memory, receptive functions, thinking, mental activity variables, psychomotor functions, and personality and emotionality variables. Neuropsychological Assessment also explains the content and
purpose of nearly all of the neuropsychological tests that are administered. Id., chs. 9-20.
Plaintiff ’s neuropsychologist often will point to discrete test scores that supposedly demonstrate the
plaintiff has sustained cognitive and/or psychomotor deficits as a result of the mTBI. With the help of the
defense neuropsychologist and Neuropsychological Assessment, there are many different approaches to attack
these conclusions, but four basic areas provide fertile ground for attacking these opinions.
A first area of attack is to explore what factual information the expert used to set the plaintiff ’s premorbid baseline function levels. In many cases, the expert will attempt to set a higher than appropriate baseline without considering many of the variables discovered by defense counsel through written discovery, such
as military records, school records (including achievement scores), past psychological records, and employment records. Surprisingly, we have encountered many situations in which the plaintiff ’s neuropsychologist
did not review these premorbid records which play an important role in estimating plaintiff ’s premorbid functional baseline. At the deposition, it is important to lock down everything that the expert considered in setting
plaintiff ’s baseline function levels, without revealing contrary records that may be used at trial to attack the
assumed baseline. A good primer on estimating premorbid baselines is contained in Chapter Four of Neuropsychological Assessment: “The Rationale of Deficit Measurement.”
A second area of attack is to explore the inconsistencies that are present in nearly every set of neuropsychological testing. A full battery of neuropsychological tests may take a full day to complete, and it is
important to understand that there is variability in performance and results that may have nothing to do
with plaintiff ’s actual ability. For example, a test battery will usually have several tests that measure plaintiff ’s different types of short-term memory in different ways, and it is probable that there will be a variance
in the scores. It is essential that the defense neuropsychologist help the attorney to understand what each
test measures and variability within results. The expert should also acknowledge that the results for any neuropsychological test do not measure the best the plaintiff can perform. Instead, these tests measure what is
the minimum level at which plaintiff is able to perform. Further, the expert may report a neuropsychological
deficit that may not be truly statistically significant compared to a proper baseline. The defense attorney and
defense expert need to fully analyze the statistical significance of the deficits reported by plaintiff ’s expert. The
defense attorney should also explore the expert’s understanding of neuroplasticity, which recognizes continual
change in the structure of the brain and its ability to adapt and restore function after mTBI.
The third area of attack is to explore the validity of the testing due to confounding co-morbidities
such as clinical depression and substance abuse or questionable validity due to plaintiff ’s lack of motivation.
Commonly, an mTBI plaintiff will allege these co-morbidities are sequelae of his injury, and it is well accepted
that they may adversely affect scoring on neuropsychological testing. In addition, malingering (intentional
or unconscious) will adversely affect plaintiff ’s performance. There are a variety of tests designed to measure
effort, such as the Test of Memory Malingering (“TOMM”), while other tests such as the Minnesota Multiphasic Personality Inventory 2 (“MMPI-2”) incorporate scales to measure effort or attempts to “fake bad.”
Although the MMPI-2 is not strictly a neuropsychological test but a personality inventory test, the test incorporates various validity tests the results of which can always be calculated. Defense counsel should be aware
that plaintiff ’s experts may not address or even document the results of validity testing in their report, or may
attempt to excuse results that demonstrate malingering. This provides fertile ground for cross examination,
particularly when the expert does not even bother to report a validity scale in tests such as the MMPI-2.
In a recent book on the subject of symptom validity assessment, the author of the Foreword, Manfred
F. Greiffenstein, PhD, ABPP-CN, warned his neuropsychology colleagues:
114 ■ Complex Medicine ■ November 2014
If after reading this book you are still not convinced that at least some persons can and do mimic
deficits to fulfill personal needs after mTBI, you should not be practicing clinical neuropsychology.
Mild Traumatic Brain Injury: Symptom Validity Assessment and Malingering at xiv (Dominic A.
Carone & Shane S. Bush eds. 2013) (emphasis in original). After reading this collection of articles by a widerange of neuropsychologists, the defense lawyer may come to the same conclusion and will have an arsenal of
concepts to use with plaintiff ’s expert.
Finally, neuropsychology experts may offer diagnoses on psychological problems (such as PTSD)
arising from the mTBI event based on the diagnostic standards in one of the versions of the Diagnostic and
Statistical Manual of Mental Disorder (“DSM”). DSM-IV was the standard manual for quite some time and
there is substantial controversy in the psychology community regarding the changes put forward in DSM-5.
See, e.g., Health News from NHS, Controversy over DSM-5: New Mental Health Guide available at http://www.
ncbi.nlm.nih.gov/ pubmedhealth/behindtheheadlines/news/2013-08-15-controversy-over-dsm-5-new -mental-health-guide/. This controversy may be helpful if the expert is relying on the outdated DSM-IV or is relying on one of the controversial sections of DSM-5. Although the expert may opine that the plaintiff ’s ability to
recover from the psychiatric disorder is less due to diminished capacity caused by the mTBI, dealing with psychiatric disorder damages are similar to those in most other types of cases alleging psychiatric damages. Those
techniques are well-known to defense lawyers, but include the need to obtain concessions that the psychiatric
and psychological communities have treatments to remedy or ameliorate these disorders and that diagnosis of
a disorder is inappropriate unless the diagnostician can point to some aspect of plaintiff ’s life that is functionally impaired by the disorder.
The latest work by David Faust, an extension of the original work by Jay Ziskin, is an invaluable
primer on handling psychological injuries. See David Faust, Coping With Psychiatric and Psychological Testimony (6th ed. 2011). This is another invaluable resource for dealing with damages claimed in mTBI cases.
C. Plaintiff’s Neuroradiologist
In eras past, the brain was viewed by some psychologists and philosophers as a black box, the workings of which are hidden from view by ordinary mortals. Our understanding of the brain remains relatively
limited, but the advent of CAT scans and MRI technology has allowed us to look into some of the previously
hidden operations of the black box. Although neuroimaging has changed research, treatment, and diagnosis
for TBI, the danger in mTBI cases is that some neuroradiologists are willing to rely on neuroimaging to draw
conclusions and form opinions far broader than what is supported by the results or the limits of the technology.
Some of the latest technological advances such as DTI and fMRI have gained acceptance in the
research and medical community for limited purposes, but a select group of plaintiff-oriented experts are willing to ignore the limits of the technology and point to claimed anomalies in a discrete scan as objective evidence of functional brain injury.
To the contrary, however, any reasonable neuroradiologist will acknowledge the structure of each
brain is unique. Unless there is a pre-existing brain scan of the same type, it is often an unacceptable stretch
for the neuroradiologist to conclude that an anomaly in the brain (such as a white matter hyperintensity) is
the definitive cause of a functional brain deficit, much less that the abnormal anomaly is the result of TBI and
not a congenital condition. Moreover, the concept of neuroplasticity teaches that even if there were injury to a
discrete portion of the brain tissue, the brain can adapt and “rewire” to eliminate or ameliorate any functional
deficit that may have arisen from the TBI event.
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In cases where neuroimaging is available, it is imperative that defense counsel obtain a neuroradiologist who fully understands the limits of all the technologies that will be involved in the case. For example, in
the last several years, we have encountered the use of Diffusion Tensor Imaging or DTI by plaintiff neuroradiologists, who use this technology to demonstrate “objective, physical” evidence of axonal injury from TBI.
The following is an example of an expert’s selected result of a plaintiff ’s DTI (with fiber tracking) supposedly
showing damaged axonal fiber bundles from the corpus callosum:
The plaintiff ’s expert then compares the plaintiff ’s scan against a supposedly “normal” DTI fiber
tracking result) to show how the plaintiff ’s axonal fiber bundles deviate from a “normal” DTI fiber tracking
scan.
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The plaintiff ’s expert will then explain that this fiber tracking result conclusively demonstrates the
plaintiff suffered organic brain tissue injury despite the fact that the TBI was classified as mild. This type of
opinion and testimony demonstrates why it is critical that the defense obtain full copies of all brain imaging
studies and the protocols used. Without the full imaging study and the protocols, the defense expert cannot
fully evaluate these opinions.
First, if the defense team looks at the complete imaging study, you may find, as we did in this case,
that the imaging study, as a whole, was normal. For example the complete DTI with fiber tracking imaging
(from which the slide of claimed axonal disruptions was taken) contained a full set of 3D images:
The above images are only two of many 3D images which, as a whole, showed there were no axonal
disruptions from the corpus callosum. In addition to selective use of images from neuroimaging studies, there
many fertile areas of cross examination for the plaintiff neuroradiologist that can be obtained from close collaboration with your defense expert.
Defense counsel should obtain a basic familiarity with forensic neuroimaging techniques through
one of many publications addressing the legal implications of neuroimaging. See, e.g., Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom (Joseph R. Simpson ed. 2012).
IX.Conclusion
For eons, theologians and religious philosophers described the soul as the essence of a person’s being
and identity. Today, if one were to poll any set of jurors, even the most religious among them would probably
describe the mind as the center of the person’s being and identity. It is the identification of the brain as the
source and repository of our personal identity that makes TBI cases frightening to jurors and defense counsel,
while raising dollar signs in the eyes of counsel for plaintiffs.
When defending mTBI claims, the defense attorney has a vast array of tools to minimize or eliminate
these claims that are largely dependent on the subjective reporting of the plaintiff. To achieve a successful resolution before trial or at trial, the defense lawyer needs to test mTBI damages claims using all available tools.
The defense lawyer must set aside any trepidation about aggressively testing plaintiff ’s claims of brain injury;
the jury expects the defense to test those claims, albeit with sensitivity and compassion.
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