In traumatic brain injury litigation – the lawyer with whom you start the case can make all the difference in the world. These cases require an integrated approach to document all the damage to the multi-organ systems that can be impacted by brain injury. The timing of preparatory steps is likewise important. Moreover, insurance companies maintain dossiers on lawyers who routinely try cases; and those who look to just settle cases. Insurers save money by understanding the opposition and injured people pay the penalty
Stewart Casper was contacted about 6 weeks before a scheduled trial in a severe pediatric case involving a head-on truck vs vehicle crash. The truck was driving on the wrong side of the road – conduct observed by an eye-witness. There was limited insurance coverage. The child had sustained a severe TBI (Glasgow Coma Scale 3), two fractured femurs, and multiple skull and facial fractures. Upon reviewing the file, Stewart felt that the insurance company had acted at least negligently in failing to settle the case at least 1 ½ years earlier not only because the child’s injuries warranted payment of the available insurance coverage and the claim was worth far more, but also because proof of reckless driving can result in a verdict for punitive damages that are not covered by insurance. Insurance companies must act reasonably to settle cases within the applicable policy limits.
By the time the file review was completed and the parents retained Stewart there were only four weeks until trial. After presenting the parents with options for moving forward, a decision was reached to insist on compensation that would account for the insurance company’s dereliction – but even then the insurance company refused to offer the full policy limit. So the trial commenced and last about 3 ½ weeks in April 2014.
The child’s injuries included multiple areas of brain damage that included hemorrhage in the splenium of the corpus callosum, right temporal lobe contusion, bilateral frontal lobe contusions, white matter shearing in the frontal lobes, mid-brain and the brain stem, and atrophy of the cortical spinal tracts.
The child experienced nearly global reductions of cognitive abilities; decrease in fine and gross motor function; ability to retain learned material; and behavioral dysregulation. He requires ongoing physical, occupational, speech, and vestibular therapy. He will experience a reduction in earning capacity.
The jury verdict found for the plaintiff on all three counts including two counts of reckless driving. The jury verdict was for $7,980,000 to which there will be added $4,000,000 in interest, attorneys’ fees plus case expenses yielding a judgment that will exceed $12 million.
The trial featured innovative trial aides for the jury to aid in understanding the evidence. For example, the child suffered an array of injuries to diffuse areas of the brain that were demonstrated using a visual imaging “slicer” prepared by High Impact Litigation with input from our expert witness Richard Boren, M.D. of Yale University School of Medicine. This demonstrative tool allowed us to review with the jury the areas of tissue damages including hemorrhage, white matter shearing, mass effect within the brain, tissue loss, and damage in the corpus callosum, the midbrain, and the brain stem.
The testimony established that areas of damage were consistent with the child’s deficits in reading and retaining new information; executive function disorder; balance problems and constant state of deconditioning.
The outcome of this case was substantially improved as a result of the parents retaining Stewart to prepare and try the case. It will make an immense difference for this child who will live with the consequences of his severe traumatic brain injury.