Brain Injuries Effective in Civil Suits for Punitive Damages and Negligence

(TheNakedPhysio.com)

Neuroscientific evidence have been a staple of brain injury litigation for decades, and these cases reviewed below from 2021 highlight some recent uses. The types of evidence introduced in the cases reviewed here varied. Expert testimony was commonly introduced, while several cases also included MRIs and CT scans. In contrast to brain injury evidence in criminal cases [see link], where evidence of brain injury often fails to impact guilt phase adjudication, brain evidence in civil cases is often successful in contributing to a favorable judgment for the plaintiff. For instance, brain injury evidence has been used to bolster claims for punitive damages.

Expert testimony of brain injuries has been used in products liability suits against manufacturers of helmets, cars, and lead-based paints. In such suits, courts have required that plaintiffs show that the allegedly defective product caused brain injuries that were more significant than typical injuries arising from the activity the product was used in. For example, a several plaintiffs sued a football helmet manufacturer for failure to warn and design defects in the helmets. The cases were originally filed in California, then transferred to Illinois, which treated the cases similar to a mass-tort multidistrict litigation proceeding. These cases used evidence of mild traumatic brain injuries, also known as concussions, to demonstrate that the helmets contained defective warnings. However, these claims failed, because the court found that football causes concussions too so the injuries was not necessarily due to allegedly defective helmets. Adams.

Similarly, in a 7th Circuit toxic tort case, where multiple plaintiffs who grew up in Wisconsin houses that used lead-based paint sued the paint manufacturers, evidence of brain damage and the type of brain damage was crucial to prove causation. The plaintiff’s experts, neuropsychologist Dr. Idit Trope and pediatric critical care physician and toxicologist specializing in lead poisoning Dr. James Besunder, testified that the discrepancies across the plaintiffs’ functional domains and the resulting neuropsychological impairments experienced by the residents matched the brain damage in extensive studies of lead-based paint’s effects on children’s brains. Due to the expert testimony, the lower court awarded $2 million in damages. However, due to lower court errors that prejudiced the manufacturer by forcing it to try the case under an expanded theory of liability, the appeals court remanded for a new trial.. Burton.

In contrast, in a Texas case where a car crash left two young children with permanent severe brain damage after the car’s restraint systems failed and the front seats slid back and collided with the children’s heads in the rear seats of the car, evidence of the severe brain injuries, including x-rays, CT scans, MRI scans, neuropsychological evaluations, and clinical observations, contributed to a finding of gross negligence by the car manufacturer. In addition, neurosurgeon Dr. Weprin testified that the damage was so severe that there was “no treatment” to fix it. $95.2 million in punitive damages was awarded on top of $98.7 million in actual damages. The court found that the manufacturer exhibited conscious indifference to the extreme risk to rear-seat passengers when the front seats yielded and restraints failed. The expert testimony based on the scans was relevant to the court’s conclusion about the extreme risk of the seat design, which contributed to the finding of gross negligence and the high level of punitive damages. Toyota Motor Sales.

Medical records of anoxic brain injury and neuropsychological testing also helped 17-year-old Bryce Masters in his civil rights action in Missouri. Masters was tasered by a police officer for a prolonged time even though Masters was not resisting arrest or acting aggressively. The prolonged tasing resulted in cardiac arrest and anoxic brain injury. The brain injury impaired Masters’ memory, ability to multi-task, and mental health. Michael Dreiling, who provided vocational rehabilitation expert testimony based on neuropsychological testing, opined that the injury would make it difficult for Masters to complete college or hold a job, leading to a diminished future earning capacity due to the tasing. The jury returned a verdict of punitive damages, which the Court of Appeals increased to $425,700. Masters.

Expert testimony of brain damage was also central in several suits related to medical malpractice. In an Ohio medical-malpractice suit in the Ohio Court of Appeals, parents sued the physician that delivered their baby for negligence during care and delivery that resulted in brain damage. The plaintiffs argued that the cranial compression ischemic encephalopathy (CCIE) during birth caused the traumatic brain injury and autism. Applying Daubert and the Ohio Rules of Evidence, the trial court found the expert evidence admissible because it was scientifically reliable, testing similar to CCIE had been done on animals, the CCIE theory had been subject to peer review, and delivery trauma could cause such injury. As such, expert testimony was sufficient to prove proximate cause of the brain damage. The lower court excluded the trial testimony of two of the defendant’s experts testified that autism and CCIE are not linked, and limited the scope of the third expert who wanted to testify that the CCIE theory is not a viable theory. The appellate court held that the lower court did not abuse its discretion in limiting the defendant physician’s experts because they would not have added significant information. Ellis.

In a Nevada case, inmate James Banks frequently complained of brain injury symptoms, and received multiple recommendations from Dr. Alley to be evaluated by a neurologist. However, Banks’ primary jail-affiliated doctor, Dr. Bryan, delayed referral for treatment and never followed up. The court thus found that Dr. Bryan acted with deliberate indifference to serious medical needs stemming from Banks’ brain injury, and that the claims against him will proceed to trial. Banks.

Lastly, brain injury evidence has been introduced in work-related cases, including insurance and worker’s compensation. In a Pennsylvania case, an employer intentionally withheld letters showing blood test results that reported the employee’s blood zinc to be seven times OSHA’s acceptable level. The employer also withheld orders from a doctor ordering an employee to stop work due to dangerous levels of zinc from soldering radiator parts, as required by the employer, resulting in the employee’s permanent brain damage. The employer’s insurance company argued that intentional injury barred coverage of the employer, but the court found the insurance was required to pay the employee. Zenith.

In an Iowa-based workers compensation suit, high school teacher Thomas Hildreth died due to a stroke two years after a workplace brain injury caused by a fall, and his widow requested medical compensation and death benefits. The original fall resulted in an abrasion of the right frontal region of Hildreth’s head and a concussion, but an MRI scan returned normal. Nonetheless, Hildreth began experiencing severe migraines, having memory and vision issues, tinnitus, difficulty sleeping, and temporary loss of sight in his left eye. An otolaryngologist found that the tinnitus resulted from head trauma. A CT scan at the time of the stroke showed possible acute right basal ganglia infarct and showed a previous injury in the right parietal and left cerebellar regions, suggesting a previous stroke. The main question was whether the original injuries resulting from the fall had a causal link and substantially increased the chance of the stroke in the right basal artery. Hildreth’s expert, internal medicine professor Dr. Francis Miller, opined that Hildreth did not have the traditional risk factors for a stroke, and cited research from peer-review journal Stroke, which found an increased risk of stroke after even mild traumatic brain injury. The deputy commissioner found that the medical literature does not draw a definitive conclusion but leaned in favor the injury increasing the chance of stroke. But Dr. Michael Jacoby, Director of Medical Education at the Mercy Neuroscience Department and Adjunct professor of neurology and Des Moines University Medical School, presented expert testimony for the defendant high school that there is no correlation between brain injury and stroke. The deputy commissioner found Jacoby’s testimony “convincing”, but the burden of proof was more likely than not, so the deputy commissioner found this burden met and ordered the high school to pay death benefits and reimburse medical bills. The trial court reversed and the Appeals Court reversed the trial court, affirming the commissioner, because Dr. Miller provided “substantial evidence” that the brain injury increased the chance of stroke. Hildreth.

These illustrative examples make clear that evidence of brain injuries continues to be used in a wide variety of civil cases, with differing levels of success.

Citations: Adams v. BRG Sports, Inc., 2021 WL 1517881; Banks v. Lombardo, 2021 WL 1931493; Burton v. E.I. du Pont de Nemours & Co., Inc., 994 F.3d 791 (7th Cir. 2021); Des Moines Pub. Schs. v. Hildreth, 2021 WL 2452066; Ellis v. Fortner, 169 N.E.3d 987 (2021); Masters v. City of Indep., 998 F.3d 827 (8th Cir. 2021); Toyota Motor Sales, U.S.A., Inc. v. Reavis, 627 S.W.3d 713 (2021); Zenith Ins. Co. v. Newell, 527 F. Supp. 3d 778 (E.D. Pa. 2021).

Keywords: Pennsylvania, Texas, Ohio, Iowa, Missouri, Nevada, Wisconsin, Illinois, traumatic brain injury, brain injury, concussion, MRI, CT scan

This post is the 122nd post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.

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at Mass General Hospital, Harvard Medical School

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