Winning a Traumatic Brain Injury Case

Presented by:

Richard H. AdlerAttorney at LawAdler Giersch PS

I. Magnitude of the I. Magnitude of the ProblemProblem

II. Using Before and After II. Using Before and After WitnessesWitnesses

1. Top Reasons to use 1. Top Reasons to use Before/After Lay Before/After Lay

WitnessesWitnesses

2. When to Obtain Before 2. When to Obtain Before and After Lay Witness and After Lay Witness

StatementsStatements

3. Who are Good, 3. Who are Good, Qualified Before and After Qualified Before and After

Witnesses?Witnesses?

4. Effectively 4. Effectively Communicating with Communicating with

Before and After Before and After WitnessesWitnesses

5. Some Examples of 5. Some Examples of Open-Ended Questions for Open-Ended Questions for

Lay WitnessesLay Witnesses

III. New LawIII. New Law

1. HB 2055 Effective 1. HB 2055 Effective 07/22/0707/22/07

2. Lystedt Law2. Lystedt Law

IV. Illustrations and TBI IV. Illustrations and TBI CasesCases

V. Ethnical Concerns in V. Ethnical Concerns in Handling Traumatic Brain Handling Traumatic Brain

Injury Cases: Injury Cases: Knowledge Skill, Knowledge Skill,

Thoroughness and Thoroughness and PreparationPreparation

““Rule 1.1 COMPETENCERule 1.1 COMPETENCE

A lawyer’s shall provide competent A lawyer’s shall provide competent representation to a client. Competent representation to a client. Competent representation requires the legal representation requires the legal knowledge, skill, thoroughness, and knowledge, skill, thoroughness, and preparation reasonably necessary for the preparation reasonably necessary for the representation.”representation.”

Rules of Professional Conduct (RPC) page Rules of Professional Conduct (RPC) page 223223

VI. Effectively Challenge VI. Effectively Challenge the “No LOC” (loss of the “No LOC” (loss of

consciousness) Dilemmaconsciousness) Dilemma

VII. Initial Considerations VII. Initial Considerations on on

Handling A TBI CaseHandling A TBI Case

1.1. LiabilityLiability

2.2. Training and Dispatching an Training and Dispatching an InvestigatorInvestigator

3.3. Assess Your ClientAssess Your Client

4.4. Develop Theme of Pre TBI vs. Post Develop Theme of Pre TBI vs. Post TBITBI

5.5. Change Your ThinkingChange Your Thinking Mild does not mean minorMild does not mean minor Mild-moderate-severe-continuumMild-moderate-severe-continuum Is it possible to have mild neurological Is it possible to have mild neurological

injury and:injury and: Mild functional impairment? YesMild functional impairment? Yes Moderate functional impairment? YesModerate functional impairment? Yes Severe functional impairment? YesSevere functional impairment? Yes

VIII. Acceleration-VIII. Acceleration-Deceleration Forces and Deceleration Forces and Impact on Grey/White Impact on Grey/White

MatterMatter

Other Considerations to Other Considerations to think think

about in understanding the about in understanding the role of acceleration-role of acceleration-

deceleration deceleration injuries with TBIinjuries with TBI

1.1. Hard tissue (bone) breaks and does not Hard tissue (bone) breaks and does not tear; soft tissue (cell, tissue, ligament, tear; soft tissue (cell, tissue, ligament, disc) tears, but does not break.disc) tears, but does not break.

2.2. The white matter of the brain is closest to The white matter of the brain is closest to the center. the center.

3.3. Grey and white matter in the brain have Grey and white matter in the brain have different “inertia” variables. different “inertia” variables.

Cont’d Cont’d

4.4. The frontal and temporal lobes of the The frontal and temporal lobes of the brain, the major speech and language brain, the major speech and language areas, often receive the most damage areas, often receive the most damage because they sit in pockets of the skull because they sit in pockets of the skull that allow more room for the brain to shift that allow more room for the brain to shift and sustain injury. and sustain injury.

5.5. During rapid acceleration and During rapid acceleration and deceleration, the effect of centrifugal deceleration, the effect of centrifugal force may result in tissue tear force may result in tissue tear hemorrhages (small tears of the white hemorrhages (small tears of the white matter). matter).

Cont’dCont’d

6.6. Tearing or shearing injuries may take Tearing or shearing injuries may take place at the time of the initial injury or it place at the time of the initial injury or it may take as long as 24 to 48 hours for the may take as long as 24 to 48 hours for the process to be completed. process to be completed.

7.7. Nerves and tissues, when pulled or Nerves and tissues, when pulled or stretched in a slow manner, can stretched in a slow manner, can oftentimes result in no injury. oftentimes result in no injury.

8.8. Injuries are diffuse throughout the brain Injuries are diffuse throughout the brain and not focal or centralizedand not focal or centralized

Cont’d Cont’d

9.9. The structure of a brain cell contains The structure of a brain cell contains synapses. At the end of the connectors are synapses. At the end of the connectors are neurotransmitters.neurotransmitters.

10.10.Cranial nerves travel through the holes in Cranial nerves travel through the holes in the skull bone.the skull bone.

IX. Excitotoxicity InjuriesIX. Excitotoxicity Injuries

X. Responding to the X. Responding to the Negative MRI/CTs: Normal Negative MRI/CTs: Normal Brain Structure Does Not Brain Structure Does Not

Mean Normal Brain Mean Normal Brain FractureFracture

XI. Rebutting the XI. Rebutting the “Normal” Neurological “Normal” Neurological Exam by the IME/DME Exam by the IME/DME

NeurologistNeurologist

XII. Effectively XII. Effectively Communicating with your Communicating with your

NeuropsychologistNeuropsychologist

1.1. Questions to ask your Questions to ask your neuropsychologistneuropsychologist

2.2. Neuropsychologists find it useful to Neuropsychologists find it useful to have all school recordshave all school records

XIII. Neuropsychological XIII. Neuropsychological Assessments for Traumatic Assessments for Traumatic

Brain InjuryBrain Injury

1.1. Executive FunctionExecutive Function

2.2. Language SkillsLanguage Skills

3.3. Verbal MemoryVerbal Memory

4.4. AttentionAttention

5.5. Organizational Efficiency, Visual-Motor Organizational Efficiency, Visual-Motor Memory and Retention of Motion InformationMemory and Retention of Motion Information

6.6. Sensory-MotorSensory-Motor

7.7. Emotional StatusEmotional Status

XIV. Responding to the XIV. Responding to the “Malingering” Label“Malingering” Label

Richard H. AdlerRichard H. AdlerAttorney at LawAttorney at LawAdler Giersch PSAdler Giersch PS333 Taylor Ave N.333 Taylor Ave N.

Seattle, WASeattle, WA206.682.0300206.682.0300

radler@adlergiersch.comradler@adlergiersch.comwww.adlergiersch.comwww.adlergiersch.com