Julie Campanini, BridgeTower Media Newswires
In recent years we have seen an increase in cases involving mild traumatic brain injuries, or mTBIs. These injuries present several problems for defense counsel.
Across the country, with remarkable consistency, we see jurors accept mild concussions as debilitating medical conditions with lifelong consequences. Plaintiffs who sustain mild head injuries on job sites or in insignificant motor vehicle accidents reap millions of dollars at trial.
What used to be simply a bump on the head has exploded into a new injury category that is poorly understood and can result in high-dollar verdicts for a seemingly innocuous and common set of symptoms.
The challenging defense in such cases begins with what jurors think about head injuries generally before they hear any facts about a case. Recent publicity surrounding concussion awareness and CTE have fueled jurors’ fears about head injuries.
Jurors conflate CTE and TBIs and want to err on the side of caution in most situations. Mild TBIs fall right in that gray area of “cannot prove and cannot disprove,” further incentivizing jurors to give plaintiffs the benefit of the doubt.
Our polling of jurors shows that they believe head injuries can appear well after an accident, something that science has no definitive answer on, as each patient is different. In addition, we often hear from jurors that not only can the symptoms materialize much later, brain injuries get worse over time, not better.
The plaintiffs’ bar has many experts who will testify that this is emerging science and the brain remains an unknown frontier, and defense experts have little to rebut that. The brain and brain injuries are emerging fields of knowledge, and jurors are averse to denying a plaintiff money simply because his symptoms are not yet fully present. The “just in case” mentality looms large.
Another area of widespread confusion that plaintiffs are latching onto involves medical imaging. Many plaintiffs who sustain any type of head injury, mild or not, and report to the hospital have MRIs. Nine times out of 10 there are no significant findings, but they claim their symptoms persist and a lawsuit ensues.
Jurors are unsure whether a brain injury must show up on an MRI to be a brain injury (and MRI technology is rapidly advancing) and so are reluctant to preclude recovery based on a “no abnormalities” finding alone.
These predispositions play out in jury research deliberations in a consistent way. Jurors want to give injured people the benefit of the doubt. The burden at trial is often shifted to the defense, and the defense cannot disprove someone’s migraines or nausea, at least not without directly attacking a plaintiff’s credibility. Absent obvious and egregious signs of malingering, jurors have no reason to disbelieve a plaintiff’s claims. Their personal experience with migraines, depression and similar issues tells them how debilitating the cluster of symptoms associated with mTBIs and concussions can be.
Moreover, the plaintiffs’ bar has well-coordinated systems to make even false symptoms appear real, lulling jurors into ignoring any lingering doubts they may have that a nonviolent hit to the head typically has no lasting debilitating effects.
Finally, to get a feel for what types of impacts jurors think could cause a brain injury, we inquired about low-impact accidents. Jurors are clearly willing to accept that this is a fair avenue for ongoing brain issues. In our recent research, jurors believed a loss of consciousness was optional for an mTBI and that an mTBI is more likely if it accompanies other injuries.
For example, to jurors, a car accident in which an injured person sustains a fracture or contusions increases the likelihood of other, harder to define issues, such as mild brain injuries.
While there is much debate in the medical community about what constitutes a brain injury versus a concussion and what the consistent diagnostic criteria are for the range of brain injuries, as well as how those resolve (or not), it is clear that the debate within the medical community is giving credence to the debate in the courtroom.
Plaintiffs’ counsel use mTBI as a catch-all for mild, post-concussive symptoms that render plaintiffs allegedly unable to function like they did prior to whatever accident landed them in the courtroom, and defendants struggle to clear up the confusion and convincingly cast doubt on a plaintiff’s injuries.
Increasingly, plaintiffs are well-prepared with medical documentation asserting these vague symptoms over a period of time, imparting some veracity to the idea that the plaintiff is suffering and needs recompense.
Knowing what to expect from jurors in concussive/brain injury cases is an important first step in preparing a litigation strategy.
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Julie Campanini is a senior trial consultant at Magna Legal Services and can be contacted at jcampanini@magnals.com.
