Articles Posted in Brain Injury

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/automobile accident case and its proceedings.)

Ms. Smith had been referred for a neuropsychological evaluation by Dr. Green but was unable to proceed because of the lack of finances. Subsequent, arrangements were made for her to have a neuropsychological evaluation which was recently completed. She was diagnosed as suffering from adjustment disorder (with depressed and anxious mood, moderate-severe). Significantly, the extensive testing established that there were no data to suggest that the patient is feigning or amplifying her current cognitive symptom presentation. In other words, “this patient is not malingering.”

On referral from the neuropsychologist, Ms. Smith has recently been evaluated by neurologist, Robert James, M.D. Dr. James has diagnosed Ms. Smith as suffering from cerebral concussion; postconcussive syndrome; posttraumatic headaches; chronic cervical musculoligamentous strain; chronic thoracic musculoligamentous 2.5 strain; chronic lumbosacral musculoligamentous strain; bilateral lower extremity restless leg syndrome; PTSD; and post-traumatic insomnia.

Ms. Smith has also undergone an extensive work up for her ongoing traumatic brain injury symptomotology from Joan John, M.D. The bottom line from Dr. John’s report is that Dr. John has established objective documentation to correlate Ms. Smith’s symptoms with a post-concussion syndrome. Dr. John has also outlined a cognitive rehabilitation program specifically designed to correct Ms. Smith’s cognitive and emotional deficits caused by the accident. This neurocognitive rehabilitation program will take approximately one year and a half to complete with Ms. Smith anticipated to make substantial recovery following completion of this extensive program.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/automobile accident case and its proceedings.)

NATURE AND EXTENT OF PLAINTIFF’S DAMAGES
SUMMARY OF PLAINTIFF’S MEDICAL TREATMENT

Ms. Smith sought treatment with Lee Family Chiropractic on October 11, 2006. She reported that she could not stop crying since the accident. She was also complaining of left neck pain and stiffness, left shoulder pain, left lower back pain, knee pain, nervousness, irritability, depression, and was feeling weird. She also had bruises along both hips from the lap belt as well as bruises on her right knee and nose from the air bag deploying. Dr. Lee evaluated Ms. Smith and diagnosed her as suffering from a cervical spine sprain/strain; lumbar spine sprain/strain; sacroiliac sprain/strain; left shoulder sprain/strain; and knee sprain/strain.

Dr. Lee treated Ms. Smith on a regular basis through February 8, 2007, and discharged her with the expectation that she would have continued care. She has in fact continued to see Dr. Lee since her discharge.

Ms. Smith also sought medical attention from neurologist, Donna Green, M.D. She was first seen by Dr. Green on May 14, 2007. Ms. Smith reported that she had ongoing and progressive depressive symptoms. She also was unable to multitask. She also continued to have some neck discomfort as well as headaches.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/automobile accident case and its proceedings.)

PLAINTIFF’S TRIAL BRIEF
GENERAL STATEMENT OF CASE

This is an auto versus auto accident case occurring on October 10, 2006 at approximately 7:00 p.m. Plaintiff Sandy Smith was traveling northbound on University Avenue crossing the intersection with North Street when defendant Dan Brown, who had been traveling southbound on University Avenue, was making a left turn onto eastbound North Street. The signal at the intersection was green for northbound travel, but Mr. Brown made his turn when it was unsafe to do so. There were SUV vehicles in the no. 1 lane waiting to turn left onto westbound North Street from northbound University which blocked both Mr. Brown’s view of Ms. Smith and Ms. Smith’s view of Mr. Brown. However, Ms. Smith clearly had the right of way as she was heading straight through the intersection on a green light and Mr. Brown clearly had the duty to not make his turn until it was safe to do so.

Plaintiff thus submits that there is no dispute about liability for this accident.

Ms. Smith saw Mr. Brown when he was approximately 7 to 10 feet away. There was no time to avoid the accident at that point. She struck Mr. Brown and, as a result, her car turned 90 degrees to the right. Ms. Smith was knocked unconscious for about 30 to 90 seconds as a result of the accident.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

It is also well settled that misconduct has often taken the form of improper argument to the jury, such as by urging facts not justified by the record or suggesting that the jury may resort to speculation (Malkasian v. Irwin, supra, 61 Cal.2d 738, 747); by informing the jury that an injured party has been compensated by a codefendant (Tobler v. Chapman (1973) 31 Cal.App.3d 568, 575); and by informing the jury of an offer of settlement and compromise (Granville v. Parsons (1968) 259 Cal.App.2d 298, 304). City of Los Angeles v. Decker, supra, 18 Cal.3d at p. 870.

The issue of negligence by Defendant White was wrongly decided. The issues of causation and Dr. Black’s damages were never decided. The argument of defendant’s counsel at trial had the effect of injecting irrelevant, prejudicial, and misleading evidence into the proceedings, and resulted in a verdict tainted by passion and prejudice.

The Implication that Dr. Black was Working.

In reality there was no evidence that Dr. Black was employed during the time that he claimed to be disabled. The only income he had during this time frame was disability benefits or residual income. Despite knowing same, defense counsel, over the court’s admonition, suggested repeatedly to the jury that Dr. Black was working when he claimed to be disabled – again impugning Dr. Black’s credibility. He went so far as to examine Dr. Baker on a telephone message taken by a member of his staff, indicating that Dr. Black “needed a letter for work” and examine Dr. Mark on and thereby admitting into evidence a patient’s history form on which Dr. Black reported that he was a CEO of a company.

Despite knowing that the true state of affairs was that plaintiff was not working, the jury was intentionally misled. Over objection, the court permitted the patient questionnaire to be presented into evidence and allowed Mr. Jones to question regarding same.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

A camera is not the same as the human eye, and film is not the same as the retina of the eye. The limitations of the camera-film system as a simulator of human vision are particularly acute under low luminance conditions. William Hyzer has written extensively on this subject. Hyzer’s criticisms have been relied upon by plaintiffs accident reconstructionist Miles Apuni in this case. As Hyzer notes, a principal difficulty is the limited dynamic luminance range of photography as compared with that of the eye.

Perceptual-cognitive issues also are often misleading with nighttime photographs. The normal field of view for humans is close to 180 degrees in all directions, but a camera only captures a small portion of the visual field, much less than the person who actually sees things the picture or video is trying to replicate. Thus, such photographs artificially concentrate the viewer into the restricted field and artificially enhance the visibility of the key object or condition being depicted.

A photograph is a static representation of a slice of time, whereas the accident sequence itself is very dynamic. The human eye is designed to optimally perform at high levels of illumination. Therefore, cameras and videos tend to make things brighter to allow people to see the target of the illustration. Also, in an auto accident, the driver does not expect the hazard to appear, but observers of a video which tries to replicate the accident know the hazard is coming and the animation or video artificially changes the viewer’s perceptions in a way far different from what actually occurred in the field.

A photograph might be offered to show 200 feet from the intersection and so the person looking at it knows what to look for and scrutinizes what can or cannot be seen, but this is not at all what happens in reality. The driver never knows the hazard is coming, can see a much wider field, and is moving at the time. These problems, along with the camera’s inability to replicate the human eye, all make the demonstration unrealistic and highly prejudicial.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

In Granville v. Parsons, supra, the action before the jury involved only one defendant. In his opening statement counsel for the defendant advised the jury that there had been other defendants, and the court made an inconclusive ruling on plaintiff’s objection. Counsel argued that the plaintiffs “know who was the guilty party…because…[he] was a defendant in this action and settlement….” Ibid. at 301-02. When former defendants were called as witnesses the defendant brought out that they had been dismissed as defendants and had paid the plaintiff in settlement for his brain injuries. No admonition or instruction was given to limit the effect of that impeaching testimony.

The court ruled on appeal, “… from the record before us we can come to only one conclusion: that defense counsel got carried away in his enthusiasm and deliberately argued the evidence concerning the dismissal and the settlement for an improper purpose.” [Citations.] The case was extremely close. The misconduct was prejudicial. (Granville v. Parsons, supra, 259 Cal.App.2d at p. 304.)

The conduct by defense counsel in the above cited case is directly analogous to that of Mr. Jones’s closing argument in the Black trial. This conduct alone would give rise to grounds for a new trial, but in the Black case it was even more inequitable. While allowing the defendant to inappropriately argue or inform the jury that Mr. Lyon had settled, implying fault and compensation, the court precluded the plaintiff from reciprocally being able to inform the jury that Iris Black was a plaintiff and had settled with defendant White. Iris Black did not elect not to sue Mrs. White. Mrs. White made the same decision to settle that Mr. Lyon made in reference to both plaintiffs in this auto accident case. There was in effect not only misconduct, but an unequal playing ground.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

Section 1152 of the Evidence Code provides in pertinent part, (a) Evidence that a person has, in compromise … furnished … money … to another who … claims to have sustained loss or damage … is inadmissible to prove his liability for the loss or damage or any part of it. Evidence of any settlement with or payment by Lyon was inadmissible to establish his liabilityin the auto collision, so all such references would also be improper. (Tobler v. Chapman (1973) 31 Cal.App.3d 568, 575.)

In fact it is well established that under parallel circumstances it is prejudicial misconduct to tell the jury that the injured party has been compensated by another codefendant who has been dismissed from the case and that such fact demonstrates that the remaining codefendant is not liable. Tobler v. Chapman, supra, 31 Cal.App.3d at p. 575 kiting Shepherd v. Walley (1972) 28 Cal.App.3d 1079, 1083-1084; Albrecht v. Broughton (1970) 6 Cal.App.3d 173, 178; and Granville v. Parsons (1968) 259 Cal.App.2d 298, 303, 304.)

The case of Albrecht v. Broughton, supra, is directly analogous to the case at bar. There the Court of Appeal reversed the trial court’s denial of Plaintiff’s new trial motion, finding prejudicial error in defense counsel’s mention of settlement in arguing the issue of liability resulting in a defense verdict. Like Black, Albrecht was a case in which the evidence on liability was in conflict. Like Black, the court allowed evidence of a settlement with a co-defendant. The trial court in Albrecht then permitted in argument reference to the settlement. The Appellate Court held that this was error.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

Pictures in various forms (e.g., engineering drawings, artist’s renderings, computer-generated displays, photographs) are commonly used in court. Photography is one of the most commonly used forms of visual presentation in court, because they assist the trier of fact in understanding injuries, the vehicles, the scene, when offered for that purpose. Jurors tend to believe that what they see in a photograph is what they would have seen had they been there themselves at the time the photograph was taken. And here, photographs and other depictions are central to issues in this auto accident case.

This belief is reinforced by their own experience, since most of them have probably taken photographs at one time or another. Unfortunately, most jurors have little knowledge about photography, hence little understanding of the possible problems and limitations.

Many experts now try to offer into evidence nighttime photographs, videos, and even computer-generated displays purporting to show the visibility available to an individual in a particular situation. Relative to verbal explanations of the results of a reenactment, these displays are regarded as a great improvement, but they present a number of problems that are seldom dealt with or even acknowledged by the individuals seeking to introduce this evidence.

Generally, daytime photographs will serve their purpose if they are sufficiently clear and are not distorted with the use of special lenses, filters, and arguments over such photographs are often not sufficient to keep them fairly out of evidence.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

DEFENSE COUNSEL’S MISCONDUCT. [C.C.P. SECTION 657 SUBD. 1. AND 7].

Evidence and Argument of the Lyon Settlement.

Before trial separate statements of the facts to be read to the jury were submitted by the parties. Defendant’s statement included that Mr. Lyon was a party, but he had settled. Plaintiff strenuously objected on the grounds of Evidence Code sections 352 and 1152 to there being any reference to that settlement. Alternatively, plaintiff proposed that if there was to be such a reference allegedly to explain Mr. Lyon’s current absence as a defendant, then equity demanded that the same explanation “of settlement,” be given as to Mrs. Black’s absence as a plaintiff against defendant White.

The court, over plaintiff’s objection, read to the jury the defense statement of the case, but refused to allow the jury to be told that Mrs. White had settled with Mrs. Black. During the entire course of the trial, from opening statement through questioning and into argument, defense counsel referenced the Lyon settlement, emphasizing to the jury that the party who was at fault, Mr. Lyon, had settled.

The implication clearly was that Mr. Lyon’s settlement was an admission of fault in the auto accident and demonstrated Mrs. White was not liable. Such statements further caused the jury to reason plaintiff had at least been partially compensated.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/car accident case and its proceedings.)

Here, Defendant has failed to establish by any means how the “sub rosa” videotape contradicts or somehow discredits the testimony of any of Plaintiffs experts based on any legal criteria. Defendants have not explained if or how these experts failed to rely on personal observation, personal knowledge, or an assumption of facts finding support in the evidence. As is obvious, the “sub rosa” video was not the only evidence available to the jury, nor can an assumption be made that Plaintiffs experts opinions would have been altered in any way based on a video depicting activities Ms. Lee’s own family testified. that she on occasion was able to participated in and/or perform.

Further, Defendant’s reliance on two family law cases, related to asset value disputes is markedly distinguishable from a civil matter wherein medical experts base their opinions on examination of a Plaintiff and provide an opinion based on their background, expertise and experience, as was the case here. Further, Defendants have relied on court opinions regarding expert valuations of tangible assets, which is markedly divergent from the valuation of a person’s future needs of a medical nature, as explained.

The Evidence Presented in the Trial Constitutes Significant Evidence
During the course of this trial, there was significant evidence with regard to the brain injury, and other physical injuries, suffered by Ella Lee. Every medical expert, Plaintiff or Defense, agreed that she did indeed suffer a brain injury. Further, the testimony of Plaintiffs experts and Defendant’s experts as to the extent of Ms. Lee’s injuries was not identical, but that is surely to be expected. The mere fact that there was contradicting expert opinion evidence does not diminish the solid value of the evidence presented.

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