Don’t Get Too Caught Up in Disproving the Diagnosis in mTBI Cases


We have seen a surge in the number of mild traumatic brain injury (mTBI) claims over the last decade where plaintiffs claim life-altering injuries from low impact collisions that leave little to no evidence that the plaintiff suffered any kind of cognitive impairment whatsoever, yet still supposedly call for an expensive lifecare plan that assumes the plaintiff can no longer work and will need round-the-clock assistance. Plaintiff attorneys are quick to argue that traditional clinical imagining is unreliable for diagnosing mild traumatic brain injuries and even defense witnesses are forced to agree that such injuries might not show up in traditional MRI or CT scans. Defense attorneys argue that mTBIs typically resolve within three months of injury, but again, their experts are forced to acknowledge that is not the case for every mTBI. Making matters worse for defendants is the “experimental testing” proffered by plaintiff experts. It is usually “experimental” in the sense that it has never been used as a diagnostic tool in a clinical setting, is not FDA-approved, and/or is not widely recognized as a valid technique for diagnosing hard-to-detect brain injuries. Unfortunately, the “experimental” and “cutting edge” labels are often persuasive to jurors leading to even greater frustration among defense attorneys in these cases.

The problem for defense attorneys in these cases is tunnel vision. We have seen so many instances of defense attorneys getting too caught up in disproving whether the plaintiff technically suffered a mTBI. It is understandable because the thought process is often that the mTBI is the key to the lifecare plan: if the jury does not believe the plaintiff suffered a mTBI, the lifecare plan goes away and the value of the case is significantly lower. Consequently, the defense attorneys get caught up in a technical distinction that may not matter to jurors.

In fact, our research over the past year alone suggests this distinction may not matter at all to jurors, who would rather look at the plaintiff and the evidence of what their life was like before and after the incident and make their own decisions about what he or she is capable of. For example, in a recent admitted liability case where the only dispute (from the defense perspective) was whether the accident resulted in a mTBI for the plaintiff, we spoke to the jurors after trial, and they said they did not address this specific question in their deliberations. They said they were not sure whether he technically suffered one, so they sidestepped the issue and just tried to look at the evidence of what his life is like now and what he needs. That is how they decided damages, which were higher than what the defense had hoped for but substantially lower than what the lifecare plan proposed.

In a mock trial on another matter, the mock jurors did not believe the plaintiff suffered a mTBI but were so angry about the actions of the defendant than they awarded the plaintiff a substantial amount of money, proving to that client that the exposure in the case was not necessarily tied to the determination of whether the plaintiff suffered a mTBI even though that is where they had placed all their focus.

In yet another mock trial for a case involving mTBI claims, the mock jurors concluded the plaintiff suffered a concussion and some long-term consequences as a result of that concussion but did not award significant money to the plaintiff because they did not think his injuries had that significant of an impact on his life. In fact, they were very critical of the lifecare plan, arguing the plaintiff was exaggerating his injuries to get more money in the case. This fueled distrust of the plaintiff, which further exerted downward pressure on damages.

These examples reveal two important lessons for defense attorneys in mTBI cases. First, exposure in mTBI cases is not necessarily tied to the determination of whether the plaintiff technically suffered a mTBI. It is possible for jurors to conclude the plaintiff did not suffer a mTBI, yet also conclude that the plaintiff’s life has been significantly impacted by the accident. The common belief that a mTBI diagnosis adds millions of dollars of exposure to a case might be true in some instances, but jurors can still get to those amounts without necessarily believing the plaintiff suffered a mTBI. Consequently, defense attorneys should not get too caught up in this technical distinction.

Second, and as result of the first lesson, it is important for defense attorneys to broaden their focus to what the accident and injury practically mean for the plaintiff’s life. What is most clear from our research is that jurors do not give as much meaning and importance to the mTBI question as they do to the broader evidence about what the plaintiff was like before and after the accident and how the injury seems to have impacted their life. Consequently, the best strategy for the defense is to show that the plaintiff can still live a relatively normal, meaning, and fulfilling life.

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