Traumatic Brain Injuries for Lawyers
Traumatic Brain Injury
A Guide for Lawyers, Clients and Families
John K. Powers
Powers & Santola, LLP
39 North Pearl Street
Albany, New York 12207
(518) 465-5995
jpowers@powers-santola.com
Head injuries can generally be divided into two categories: open head injuries - in which both the skull and the brain have been damaged; and closed head injuries - in which the brain has been damaged but the skull has not. The first type is usually characterized by a penetration of the skull (i.e., from a gun shot wound) or by a depressed skull fracture. Of the two types, closed head injuries are, by far, the most common.
Closed head injuries are further subdivided into four types:
1. Injuries involving acceleration and deceleration. Such injuries occur as the result of the skull moving while the brain remains stationary. When the head suddenly stops moving, the brain smashes into the interior wall or the base of the skull. The result is hemorrhaging, bruising or swelling of the brain.
2. Compression injuries. The brain has a limited amount of space inside the skull. When bleeding inside the skull occurs, this results in compression of the brain, thus affecting its functions.
3. Rotational injuries. These occur when the brain twists around the axis of its stem just above the spine where it enters the skull. This results in a shearing of the brain stem or damage to its nerve fibers.
4. Anoxia. Damage occurs to the brain when it is deprived of oxygen or when the amount of oxygen to it is reduced because of reduced blood flow.
The manner and order in which the proof is presented during the plaintiff's case is important to the jury's willingness to accept the plaintiff's theory of injury. It is often advisable to refrain from having the plaintiff in the jury's presence until after the proof of his or her injuries have been presented to the jury through expert and lay testimony. The typical order of proof in a closed head injury case often follows the following format:
1. A physician, usually a neurosurgeon or neurologist, is called to explain the anatomy of the brain and the mechanics of injury. The physician, using demonstrative evidence, explains the functions of the various portions of the brain and the symptoms of injury relating to each part. The physician then acknowledges the reliability of neuropsychological testing, his or her reliance upon the findings of the neuropsychologist, and the importance of the neuropsychologist in diagnosing the victim's injuries.
2. The physician's testimony is followed by a series of "before and after" lay witnesses. These witnesses relate their observations about the type of person that the plaintiff was before the accident, and how he or she has changed since the accident. The effectiveness of lay witnesses is maximized by each witness limiting his or her testimony to one or two interesting examples or observations concerning the victim's pre- and post-injury behavior.
3. The stage is thus set for the testimony of the neuropsychologist. If the physician and lay witnesses have performed effectively, the jurors will already know that portions of the brain have been damaged. There is no witness who is more effective than an expert who is about to tell the jury that which they have already concluded by themselves.
4. A vocational rehabilitation expert testifies to his or her opinion about the extent to which the plaintiff's injuries have affected his or her employability.
5. A life care planner testifies concerning his or her opinion of the plaintiff's life- long needs and their anticipated costs.
6. The plaintiff is then presented to the jury.
7. An economist testifies concerning his or her opinion about the economic losses sustained by the plaintiff as the result of his injuries.
In an appropriate case, it may be advisable to present testimony from other expert witnesses. These may include: an accident reconstructionist (to testify concerning the extent and direction of the forces involved in the collision); a seat belt expert; and other medical specialists whose testimony is necessary to exclude injuries other than brain damage as the cause of plaintiff's condition.
To properly lay the foundation for obtaining, and protecting, the verdict for a person who has sustained a traumatic brain injury, it is essential to combine thorough pre-trial preparation with the appropriate use of experts who are can evaluate every aspect of the client's needs and impairments. The losses and injuries sustained by the head injured client will ultimately be presented to the jury in the following format:
Medical Expenses to Date: ___________
Lost (or Impaired) Earnings to Date: ___________
Lost Fringe Benefits to Date: ___________
Lost Household Services to Date: ___________
Injury, Disability, Pain, Suffering and
Loss of Enjoyment of Life to Date: ___________
Future Medical Expenses: ___________
Future Lost (or Impaired) Earnings: ___________
Future Lost Fringe Benefits: ___________
Future Injury, Disability, Pain, Suffering
and Loss of Enjoyment of Life: ___________
TOTAL PAST AND FUTURE DAMAGES: ___________
Accordingly, your role is to continuously focus on each of the above elements and reevaluate and analyze how your client's injuries relate to each item of loss and how you will lay a foundation to prove the loss at trial.
I. INITIAL INTERVIEW
The results of closed head injury are often overlooked by both the acute care physician and by the patient. The effects of closed head injury are often delayed and subtle. As a result, many patients, who are more concerned with recovering from their more obvious injuries, fail to report their symptoms or to seek treatment for these injuries.
To determine whether a client has sustained a closed head injury, the attorney needs to conduct a careful and focused interview of both the client and his or her family members.
During the interview of the client, the attorney should be aware of any of the following symptoms which may indicate a closed head injury:
COGNITIVE DEFICITS:
1) Lethargy, lack of alertness
2) Lack of attention span
3) Slowing of mental processes
4) Inability to plan ahead
5) Difficulty concentrating
6) Easily distracted
7) Short or long term memory difficulties
8) Does the client compensate by making lists or taking notes?
9) Difficulty with learning new information or skills
10) Difficulty understanding written or spoken information
11) Impairment of writing skills
12) Vision problems (field cuts, double vision, failure to recognize familiar objects)
13) Hearing problems
14) Reduced tactile sensitivity
15) Difficulty with abstract reasoning
16) If the client is a student, has there been a decrease in grades or difficulty studying?
PHYSICAL DEFICITS:
17) Motor weakness in one or more limb
18) Lack of muscle coordination and dexterity
19) Difficulty maintaining balance, dizziness, fainting spells or sudden involuntary movements
20) Speech problems
21) Vision problems
22) Impairment of sense of smell or taste
23) Hearing impairment
24) Impairment of sense of touch or feeling
25) Numbness, tingling, weakness or heaviness
26) Fatigue
EMOTIONAL DEFICITS:
27) Is there a normal range of expression?
28) Is the expression of emotion flat?
29) Are there inappropriate outbursts such as laughter or crying?
30) Periods of aggression or agitation
31) Impulsiveness or childish behavior
32) Repetitive behavior
33) Increase in swearing or verbal abuse
34) Disinhibition
35) Changes in interpersonal relationships
36) Depression
37) Paranoia
38) Lack of tact or humor
39) Reduced sexual interest
40) Sleep disorders
In addition, complete ambulance and medical records should be obtained and scrutinized. A determination must be made whether the client suffered:
a) Any period of loss of consciousness;
b) Any episodes of confusion or disorientation;
c) Any blurring of vision or double vision;
d) Any injuries to the head or neck.
If a review of the records, or the interview of the client and the client's family, results in any of the above questions being answered in the affirmative, the patient should be referred for neuropsychological testing to determine whether a closed head injury has occurred.
II. NECESSARY RECORDS
Due to the nature of traumatic brain injury, it is always best to proceed from the assumption that your client lacks the ability to provide you with an accurate and complete history. To protect both your client and the expert witnesses whom you will ultimately call upon to testify concerning the effects of the injuries sustained in this accident, it is essential that you obtain and furnish your experts with all the following records that might be appropriate to their opinion:
A. Current medical condition since the accident;
B. Past medical condition (from birth to accident);
C. Current employment records;
D. All past employment records;
E. Current union records;
F. All past union records;
G. All military records;
H. Federal tax records;
I. State tax records;
J. Check registers for at least 3 years;
K. All educational records including results of any standardized tests;
L. All past health insurance records;
M. All current health insurance records;
N. All past no-fault records;
O. All current no-fault records;
P. All past worker's compensation records;
Q. All current worker's compensation records;
R. All veteran's administration records;
S. All vital records (birth, marriage, divorce, death);
T. All social security records;
U. Certified copies of all medical bills;
V. Collateral source information;
W. All arrests and/or convictions.
X. All prior lawsuits or claims.
In addition, complete ambulance and medical records must be obtained and scrutinized. A determination must be made whether the client suffered:
Y. Any period of loss of consciousness;
Z. Any episodes of confusion or disorientation;
AA. Any blurring of vision or double vision;
BB. Any injuries to the head or neck.
These records should, when relevant, be introduced into evidence during the presentation of the plaintiff's case.
III. TREATING PHYSICIAN
The role of plaintiff's treating physicians is to describe the injuries, relate them to the accident, establish the fair and reasonable value of medical services rendered to date, and give an opinion about disability, permanency, prognosis and future treatment. In addition, they can and should provide opinions regarding the plaintiff's inability to work during the period when the plaintiff was under their care.
Jurors are reluctant to accept, in the absence of severe and visible damage to the skull, that the plaintiff suffered a severe and permanent brain injury. Thus, the treating physician's role is to teach the jury the mechanics of the injury, the anatomy of the brain and skull, the functions of different portions of the brain and how the interrelationship between the plaintiff's brain injury and other injuries can magnify the effects of each.
In preparation for trial, it is essential that demonstrative evidence be prepared to illustrate the anatomy of the brain. Medical illustrations and models are useful tools in helping a witness to explain both the function of the various portions of the brain and the mechanics of the injury.
Plaintiff's counsel must make the jury understand the mechanics of the injury to the brain. The jury should be conditioned to the concept that sudden motion, even without direct impact to the brain, can cause the brain to make sudden contact with the interior of the skull. Shearing forces against the base of the skull, pulling upon the brain stem, turning of the entire brain around the brain stem causing impaired circulation and injury, or movement of the brain against the sharp edges of the external covering of the brain, coup and contre-coup (i.e., blow and return after impact) can all cause serious brain damage without the presence of significant external injuries.
After stating a diagnosis, the witness should use demonstrative evidence (such as a model of the skull and brain) to describe the basic anatomy and function of the brain. When describing a coup-contre-coup injury or brain shear injury, additional demonstrative aids should be employed to help the jury understand the mechanism of injury. Such evidence can be either in the form of medical illustrations or commercially available animations. The witness should call the juror's attention to those portions of the ambulance and hospital records that are consistent with the plaintiff having sustained traumatic brain injury. If x-rays, CAT scans, or MRI's confirm injury to the skull or brain, "positive" copies and enlargements should be used confirm the basis of the doctor's diagnoses. If the original tapes that the MRI or CAT scan were recorded on can be located, it is often possible to create a computer enhanced three dimensional view of the brain and the damage that has occurred.
The results of closed head injury are often overlooked by both the acute care physician and by the patient. In addition, the patients with significant head injuries may have "normal" neurological evaluations, CT scans or MRI's.
In such a case, the method of cross-examination often employed is to establish the following:
a) The lack of complaints by the patient or his family members in the hospital record of any of the problems for which he now alleges to be suffering;
b) The absence of any diagnosis in the hospital record by any medical doctor of the condition that the neuropsychologist has not diagnosed;
c) Every normal neurological test, x-ray, CT scan, MRI or EEG in the medical record;
d) That the plaintiff's treating physicians did not feel that it was necessary to refer the patient for a neuropsychological workup.
Accordingly, it is essential for the plaintiff's treating physician to deal with any vulnerability in these areas as part of direct examination, rather than deal with it defensively on cross-examination.
The treating physician also lays the foundation for the neuropsychologist. The doctor should teach the jury what each part of the brain does and what type of disability of behavioral change occurs when that portion of the brain is damaged. The physician then describes, in general terms, the field of neuropsychology and the role of the neuropsychologist in evaluating and diagnosing the plaintiff's injuries. If the physician refers patients to neuropsychologists, and relies upon the results, this should be discussed, to reinforce the juror's willingness to accept the neuropsychologist as a medical professional whose testing techniques and results are accepted and relied on by the medical community. The foundation is then completed with the physician's testimony that he or she has received the neuropsychologist's report and agrees with the conclusions and diagnosis contained therein.
Most physicians are not equipped to render opinions about the future cost of medical care, equipment, supplies or procedures. Nor are they sufficiently familiar with the specific requirements of any occupation (other than their own) to render an opinion concerning the plaintiff's future vocational options. Accordingly, in those areas, they should only be used to provide a foundation for the life care planner and vocational rehabilitation expert.
The necessity of past medical expenses and their relationship to the accident should be established by the testimony of plaintiff's treating physicians. In some jurisdictions, the necessity of the expenses may be established by the introduction of certified copies of hospital records and certified copies of bills. The reasonable value of the expenses is established by testimony from plaintiff's treating physicians that they are the usual and customary amounts charged for similar services. The treating physician should be prepared for this question before his or her testimony. The doctor's bill should be marked for identification, identified by the physician, and he or she should then testify that the amount of the bill reflects the fair and reasonable value of the services that were rendered.
In some jurisdictions, the amount paid is prima facie proof of the reasonableness of the bill. In other jurisdictions, some extrinsic evidence of reasonableness must be produced. Some courts have held that expert medical testimony is required to support claims of past loss earnings and impairment of future earnings. Other courts have felt that medical proof was not essential if the nature of the injury was such that the jury could fairly determine from their own experience that such impairment would naturally result from the injury.
The best practice is to always present medical proof about the nature and extent of plaintiff's injuries and plaintiff's past, present and future disabilities. If plaintiff's physician is not able to make a clear connection between future disabilities and impairment of earning capacity, the doctor should not be asked to do so. Be content to have the physician establish a foundation from which a vocational rehabilitation expert can state his or her opinion. Generally, past medical expenses are recoverable as separate items of damage. To recover for these items, the plaintiff must prove:
A. That the injuries were caused by the accident; and
B. That the treatment or evaluation of the injuries was reasonable and necessary for
treatment of the injuries; and
C. That the amount charged for treatment, evaluation, service or supplies was
fair and reasonable; and
While causal relationship is sometimes obvious, usually medical expert testimony is required. Thus, plaintiff's treating physicians should be asked whether they have an opinion, with a reasonable degree a medical certainty, whether the injuries for which they treated the plaintiff were caused by the accident in question.
If the plaintiff has sustained an injury after the original event, the relationship, if any, between that injury and the original injury, should be explored. For example, if the plaintiff sustained a knee injury in the original accident, and fell six months later, breaking his or her arm, counsel should determine whether the fall was related to plaintiff's instability that resulted from the original injury. In such an event, it may be possible to causally relate plaintiff's subsequent injury to the original accident.
If the plaintiff will incur medical expenses for treatment of his or her injuries in the future, you must establish, by testimony from the treating physicians:
1. The causal relationship between the injuries and the accident;
2. The specific nature of the future treatment;
3. The time or times in the future when the treatment will be rendered;
4. The cost of such services; and
5. That there is a reasonable medical probability or certainty that future expenses will be incurred.
As most physicians lack the expertise to predict the future cost of such services, it is customary for the physician to express an opinion about the present cost of such services and when in the future such services will be rendered. This serves as a foundation for the economist to testify about the present value of the cost of such future services. In significant brain injury cases, where there is a need for extensive future services and supplies, the foundation for such future services and the present cost of the future services is often supplied by a professional life care planner. If a life care plan has been prepared, the physician should testify that he or she has reviewed it and agrees that the therapies, equipment, services, etc. contained therein are medically reasonable and necessary for the care and treatment of the plaintiff for the duration of the times specified.
At least one of the plaintiff's physicians also should lay the foundation for life expectancy and work-life expectancy. It is not necessary that the physician testify to a specific life expectancy, this can be established by the economist. The role of the treating physician is to testify that, based upon the history obtained and the examination of the plaintiff, the physician believes, with a reasonable degree of medical certainty, that the plaintiff had a "normal life expectancy" for a person of similar age, race and sex before the accident. Further, based upon the history and physical examination, the physician believes that the plaintiff still has a "normal life expectancy" after the accident.
Similarly, the physician's opinions about the plaintiff's work life expectancy before and after the accident must be obtained before the trial (then communicated to all other experts) and elicited at the trial.
If the treating physician believes that the plaintiff had anything other than a normal life expectancy or work life expectancy before, after, or as a result of the accident, the specifics of that opinion must be determined and conveyed to the life care planner, vocational rehabilitation expert and economist before they prepare their reports.
The treating physician also should be asked to lay the foundation for the plaintiff's inability to perform household services in the manner, or to the extent, that the plaintiff was able to do before the injury. If the physician is unable to do so, lay a foundation in terms of the nature and extent of the plaintiff's disability and limitations to permit the vocational rehabilitation expert to provide the ultimate opinion about the diminution of household work capacity.
IV. BEFORE AND AFTER WITNESSES
As head injury victims often have a poor understanding of their impairments, it is imperative that family members and co-workers be interviewed to determine whether they have observed, or heard complaints concerning, any of the following conditions:
A. Impairment of coordination. Have they observed the client bumping into things,
stumbling, dropping objects, having difficulty getting dressed, etc.?
B. Has the client experienced dizziness, fainting spells or sudden involuntary movements?
C. Does the client compensate by making lists or taking notes?
D. Does the client suffer from depression?
E. Does the client have an inability to express feelings?
F. Apathy.
G. Lethargy.
H. Reduced sexual interest.
I. Inability to plan ahead.
J. Difficulty reading or understanding what is read.
K. Loss of memory (short or long term).
L. Confusion.
M. Impulsiveness or childish behavior.
N. Repetitive behavior.
O. Inability to communicate effectively.
P. Any personality changes.
Q. Increase in swearing or verbal abuse.
R. Increased aggressiveness, fear or anger.
S. Chronic headaches.
T. Visual Difficulties or reading problems.
U. If the client is a student, has there been a decrease in grades or an increase in difficulty studying.
V. Headaches.
W. Hearing problems.
X. Impairment of the sense of smell or taste.
Y. Sleep disorders.
Z. Co-employees "covering" for the plaintiff.
Each credible lay witness you uncover who can testify to having observed any of these conditions becomes a cornerstone upon which the ultimate opinion of your experts will rest. There is no expert whose opinion is more readily accepted by a jury than one who is telling them something that they've already figured out for themselves.
Once the treating physician has explained the function of the relevant portions of the brain and the disability or behavioral change that occurs when that portion of the brain is damaged, several very brief "before and after" witnesses will describe how the patient was "normal" before the accident and how he or she is different now. Each person should give only one or two illustrative examples and get off the witness stand. If possible, start with non-family members, such as co-employees, neighbors and friends, and proceed to family members and spouse. If demonstrative evidence, such as a "Day in the Life" video, still photos or a video album, is being used, it should be introduced and explained at this time through a family member.
V. NEUROPSYCHOLOGIST
The testimony of the neuropsychologist is the foundation upon which the plaintiff's case rests. The neuropsychologist is able to establish the nature and extent of the plaintiff's injuries and to relate those injuries to the specific portion of the brain that has been injured. In addition, the neuropsychologist is uniquely qualified to help the jurors to understand how the plaintiff's permanent brain damage effects his or her daily activities and the quality of his or her life.
Neuropsychology is the study of the relationships between the brain and behavior. Clinical neuropsychology relies on the concept of deficit measurement. It assumes that the patient once functioned in a certain manner. If a behavior change has emerged, there is a corresponding deviation from the normal expected premorbid pattern of test performance.
Injuries to specific portions of the brain are known to produce precisely defined disorders. As closed head injuries often produce damage to several portions of the brain simultaneously, mixed symptoms often result.
Due to the anatomy of the skull's interior contours, acceleration injuries are more likely to impact frontal lobes and the poles of the temporal lobes. Thus, the most common type of brain injuries resulting from automobile accidents are to those areas of the brain.
The frontal lobes are the portion of the brain primarily responsible for judgment, insight, creativity and foresight. These lobes are critical to the ability to maintain concentration, vigilance, perseverance and response inhibition. In addition, the ability to smell requires an intact frontal lobe.
Persons sustaining injury to the orbito-frontal area of the frontal lobes often exhibit behavior which is hostile, compulsive and inappropriate sexually. Such behavior is often described as silly, childish and outlandish.
Persons suffering from injury to the dorso-lateral part of the frontal lobes often become apathetic and indifferent. In addition, the victims of such injuries often suffer from an inability to concentrate, have difficulty carrying out sequential tasks, and may repeat themselves frequently when speaking.
Injuries in the medial-frontal area often result in a variety of movement disorders called akinesias. This most often results in a lack of spontaneous movement or the loss of the ability to initiate motor activity. In addition, persons sustaining severe injury to these areas are often incontinent of urine and feces.
The temporal lobe of the brain has three major functions:
1. The interpretation of a variety of auditory functions, including written and spoken language;
2. The awareness of the relevance of time, which includes memory; and
3. The regulation of some forms of emotional expression and primitive drives and affects.
Thus, damage to the temporal lobes may impair the ability of the victim to discriminate words and to understand speech sounds. In addition, extensive injuries to the temporal lobes may result in severe anterograde amnesia and impaired ability for new learning. Retrograde amnesia, which involves difficulty in remembering events prior to the onset of the amnesia, is also commonly present.
Bilateral damage to the undersurface of the temporal lobes, if extensive, can create a condition in which the patient reacts to virtually all stimuli with extreme rage which is beyond the person's control.
The parietal lobes of the brain govern much of the appreciation of many kinds of sensation including touch, temperature, pain, pressure, vibration, the ability to distinguish among a variety of shapes, sizes and textures. Persons suffering damage to the right parietal lobe may become easily disoriented. Damage to the left parietal lobe often leads to confusion between the left and right sides of the body and inability to calculate and to write.
The occipital lobe of the brain is primarily devoted to visual perception and recognition. When injury occurs to this area of the brain, the symptoms include a range of visual field defects, bizarre visual hallucinations or illusions, an inability to recognize persons who should otherwise be familiar to the patient and a loss of color vision.
Neuropsychology relies upon three primary methods of deficit measurement. The first, and most reliable, is to compare pre-injury standardized tests to the results of post-injury tests. To do this, it is necessary for the attorney to obtain any standardized tests that were administered while the client was in school, in the military, or in other situations where such tests might have been given. These test results should be furnished to the neuropsychologist.
If there are significant differences between the results of those tests and the tests done by the neuropsychologist after the accident, the neuropsychologist will attribute the deviation to the brain injury caused by the accident. Because the neuropsychologist is comparing "apples" to "apples," the witness is on solidest ground when he or she has a pre-injury test upon which to base the deficit measurement. There are, however, factors other than the accident that may account for the deviation in test results. These include any of the following types of events that could have occurred between the testing intervals:
1. Other head injuries, seizures, strokes or anoxic events;
2. Exposure to noxious agents such as carbon monoxide, or heavy metals (i.e., lead), solvents, fuels or pesticides;
3. Drug or alcohol abuse;
4. Psychiatric conditions;
5. Orthopedic problems; or
6. Peripheral nervous system impairments.
In addition, various medications can dramatically impair the patient's ability to score well on the subsequent examination. Be certain to have the neuropsychologist exclude these possibilities as a cause in the deviation between pre- and post-accident test results.
If no pre-injury tests can be obtained, the neuropsychologist will assume that the patient was an average person before the injury and will compare post-injury test results to average test scores. In such a situation, the witness is comparing a current "apple" to an imaginary average "apple." By doing so, the neuropsychologist creates an area of vulnerability.
In such a situation, cross-examination is based upon establishing that the assumption of "averageness" was incorrectly made. The plaintiff's attorney needs to be aware of every "below average" event in the patient's life before the injury. These may include:
1. A low or failing grade in a school transcript;
2. A bad driving record;
3. Below average SAT scores;
4. Failed marriages or relationships;
5. Poor work evaluations, etc.
To foreclose the defense from attacking the underlying assumption of "averageness", counsel should then proceed to explore any of the previously mentioned conditions or events that could have influenced the subsequent test results and have the neuropsychologist explain why they are not significant to the assumption of "averageness."
VI. VOCATIONAL REHABILITATION EXPERT
The vocational rehabilitation expert relies upon the opinions of the medical doctors and neuropsychologist about the nature and extent of the plaintiff's disabilities and the prognosis for recovery. This information, when combined with the vocational expert's own tests, allows the vocational expert to arrive at an opinion regarding the client's pre-injury and post-injury earning capacity. This opinion then serves as the basis for the economist's opinion of the present value of the lost earning capacity.
The testing done by the vocational expert may include a General Aptitude Test Battery and a Self Directed Search. The General Aptitude Test Battery is an aptitude test consisting of twelve sub-tests yielding nine aptitude scores that are believed necessary to perform work. The scores are reported with grades of 1 through 9, with one being the lowest. Scores of 1-3 are below average, 4-6 are average and 7-9 are above average.
The Self Directed Search is a vocational interest test which measures a person's occupational interest by use of a personality profile. The six personality types are: Realistic; Investigative; Artistic; Social; Enterprising; and Conventional. The scores are given in groups of three so possible blends of various occupational types can be considered. This allows the expert to compare the client's vocational interests to job types that correspond to the three letter code and to determine whether the plaintiff possesses the necessary intellectual and physical aptitudes to perform those jobs.
Besides determining those occupations that the client will be unable to perform, thus reducing the opportunity for employment, the vocational expert also must determine whether the plaintiff's injuries will shorten or impair his or her work life. Even if the plaintiff can return to work, will the client suffer from a reduced ability to be retrained in the event of the loss of the current job due to layoff or a new, unrelated, injury? Additionally, this expert should detail the dramatically reduced probabilities for employment that a disabled worker endures because of job discrimination.
The basic elements of every lost or impaired earnings claim are common to all personal injury litigation cases. These include:
A. Loss of Wages
If a plaintiff is employed at the time of the accident and is prevented from continuing work as the result of injuries sustained in the accident, he or she is entitled to be compensated for lost earnings. A plaintiff's lost earnings are usually determined by multiplying the amount of time lost by the amount of the wage, with appropriate adjustments for inflation, and interest rates. Generally, the income that plaintiff loses from the time of the injury until the time he or she goes back to work, or the case goes to trial, are past lost wages. Future lost wages are based on future losses, assuming that plaintiff would have kept the same job until retirement. Loss of earning capacity is what the plaintiff could have earned in the future before the injury, minus what plaintiff can now earn, given the accident-caused injury.
Some courts have held that expert medical testimony is required to support claims of past loss earnings and impairment of future earnings. Other courts have felt that medical proof was not essential if the nature of the injury was such that the jury could fairly determine from their own experience that such impairment would naturally result from the injury.
The best practice is always to present medical proof about the nature and extent of plaintiff's injuries and plaintiff's past, present and future disabilities. If plaintiff's physician can't make a clear connection between future disabilities and impairment of earning capacity, he should not be asked to do so. Be content to have the doctor establish a foundation from which a vocational rehabilitation expert can state an opinion.
B. Loss of Fringe Benefits
An often overlooked, and increasingly important, element of past and future damage is the client's loss of fringe benefits. These benefits may include the employer's contribution to:
1. Social Security
2. Worker's compensation
3. Pension plan premiums
4. Medical insurance, life insurance, and death benefits
5. Profit sharing plans
6. Medical and dental check ups
7. College tuition remission
8. Financial consulting or legal services plans
9. Courtesy discounts on company products
10. Discounted loans for college or home expenses
The value of these items can equal up to forty percent or more of the employee's actual or potential earnings.
C. Commissions
If the plaintiff is paid, in whole or in part, on a commission basis, he or she is entitled to recover the value of commissions lost because of his or her injuries if such commissions can be determined with a reasonable degree of certainty. Customarily, such computations are based upon past commissions earned. In those instances where there is a limited history of commissions earned, or where other economic factors need to be considered, loss of commissions can be proved by testimony from the plaintiff's employer, accountant, or by expert testimony from a professional economist.
D. Business Profits
Profit is generally considered to be the result of investment rather than labor. Because profit and loss are affected by such factors as revenues, overhead, economic factors and competition, a plaintiff traditionally cannot recover for such loss of profits. There is, however, a split in jurisdictions about the recoverability of loss of profits.
If the plaintiff can demonstrate with some degree of reasonable certainty that there is a direct relationship between the lost profit and the loss of his or her labor, talents or entrepreneurial or managerial skills, some courts have permitted recovery for this item of loss.
Generally, proof of such loss should be founded upon financial books and records of the business. Proof by partners, employees and competitors about the nature of the business and the effect of plaintiff's inability to participate in the business also should be produced. Opinion testimony also can be introduced through certified public accountants, management consultants, or professional economists to explain why profits were lost, or that the value of the business was impaired, because of the plaintiff's disability.
E. Loss of Opportunity for Employment
If the plaintiff was not employed at the time of the injury, he or she can still recover for the loss of opportunity for employment. This may take the form of either past or future loss of earning capacity, or both. To prove this item of loss, it is necessary to prove both the loss of opportunity and the amount of lost earning capacity. This should be done by showing, and documenting, specific efforts to find work or the temporary nature of plaintiff's employment (i.e., the ending of a strike, co-employees going back to work in the industry, or that the industry in which the plaintiff is employed has started hiring again). Plaintiff's lost earnings can be shown by reference to specific job opportunities that were lost, plaintiff's past earning capacity, or the average earning capacity of others of the same age, education, sex, race and occupation.
F. Loss of Future Income
If the plaintiff's ability to earn income in the future has been diminished or destroyed, he or she is entitled to be compensated for this item of loss. Technically, this is not an item of lost wages but is a loss of earning capacity. The loss of future income may result from one or more of the following factors:
1. Future lost time from work due to plaintiff's injuries or future treatment of same;
2. The loss of promotion or job opportunities resulting from plaintiff's physical or emotional disability, fatigability, or inability to travel;
3. The shortening of plaintiff's work life; or
4. Plaintiff's inability to accept overtime.
G. Impairment of Earning Capacity
Impairment of earning capacity means the diminution or loss of the ability to earn money. It is a separate item of damage from lost earnings. Impairment of earning capacity is the difference between the amount of money the plaintiff was capable of making before the injury and the amount that he or she is now capable of making because of the injury. The difference may result from either a temporary or permanent effect of the injury upon the plaintiff's ability to earn a living.
The plaintiff generally has an obligation to minimize these losses, if reasonably possible. Thus, if by retraining or additional education, plaintiff can minimize those losses, then the damages may be limited to the cost of retraining or education and the lost earnings resulting from such impairment to the time that plaintiff's earning capacity would be the equivalent of the amount that he or she would have had if the plaintiff had not been injured.
If plaintiff's injuries will result in early retirement, it is necessary to determine whether the plaintiff will be able to find some other income producing work in retirement to minimize those damages. In this regard, it is important to determine whether the plaintiff will have difficulty in finding other employment. An unskilled, poorly educated middle-aged laborer, may not be capable of being retrained. Thus, the ability to earn income is more often related to the individual than to the injury.
H. Impairment of Earning Capacity Without a Corresponding Loss of Income
There can be recovery for loss of earning capacity without a corresponding loss of income. For example, a construction worker who is unemployed at the time of the injury, and therefore suffers no loss of income, may have a significant loss of future earning capacity because of a shortened work life expectancy. Similarly, a child may sustain no loss of present income while sustaining a significant, or total, loss of earning capacity.
I. Impairment of Business Productivity
In the case of a self-employed individual, it may be possible to prove an impairment of earning capacity because of a loss, or diminution, or business productivity. Such loss may be determined by the cost of hiring a substitute to replace the individual in the business. However, while the hiring of a substitute may permit the plaintiff to continue the business, there is often a reduction in productivity because the substitute does not possess the same motivation or talents as the owner. In such circumstances, proof should be offered as testimony from plaintiff's employees, accountant, competitors, and an economist about the nature and extent of the loss of productivity and profits due to plaintiff's inability to participate actively in the business.
Proof of impairment or loss of earning capacity is customarily based upon a combination of medical proof and testimony from a vocational rehabilitation expert. Plaintiff's treating physicians should testify, with a reasonable degree of medical certainty, about the nature and extent of plaintiff's future disabilities. The vocational rehabilitation expert, after testing plaintiff's ability to perform certain activities or to be retrained for other income producing activities, can then testify about plaintiff's inability to continue, or obtain, work in the future.
Based upon this foundation, a professional economist can then express an opinion about the present value of the plaintiff's future lost earnings and the benefits relating thereto.
A child also can recover for loss or impairment of future earning capacity. Because a child is usually not employed in his or her ultimate occupation, or any occupation, at the time of his injury, it is important to establish a basis for future loss projections. This is customarily done by reference to the child's educational attainments, standardized tests, the attainments of the child's family, the environment in which the child lives, physical problems or abilities, and interests. Based upon such information, a vocational rehabilitation expert or professional economist can testify about the average earnings of a person of the same sex and race based upon the average earnings of a non-high school graduate, a high school graduate, a person with two years of college, four years of college or more than four years of college.
The use of a vocational rehabilitation expert should be considered in any case in which the traumatic brain injury has a significant effect on the injured person's future loss or diminution of earnings. This particularly includes those instances in which future rehabilitation or training will be necessary and cases involving children or others with no demonstrated history of employment.
When employing a vocational rehabilitation expert and an economist, the plaintiff's attorney must be careful to delineate their responsibilities and coordinate their work product. For example, a decision must be made which of the experts will render an opinion of the plaintiff's pre-injury earning capacity. Once the decision is made, both experts need to communicate their opinions and their methodology to each other to make certain there is complete understanding and no room for dispute or contradiction between the plaintiff's experts.
VII. LIFE CARE PLANNER
The role of the life care planner is to evaluate all the lifelong needs of the client, both immediate and long term, and to create a living document that identifies those needs and their anticipated costs in today's dollars.
In the case of a traumatically brain injured individual, those needs might include:
A. Diagnostic testing
B. Educational assessment
C. Psychological assessment
D. Vocational assessment
E. Home care or facility care
F. Attendant care
G. Transportation needs
H. Therapy needs
I. Medical and hospital needs
J. Equipment
K. Psychological or psychiatric counseling
The life care planner bridges the gap between the treating physician and the economist by providing a detailed plan of the timing and costs of future needs. This expert must identify the client's specific disabilities, problems and limitations. The appropriate services and supplies are then identified, together with the frequency that they will be needed and the duration of their need. The range of cost for each item is then determined. Using the life plan, the economist projects the amount of money that will be needed to provide for the health care and related expenses for the remainder of the client's life.
In cases involving moderate to severe brain injury, some of the following issues may arise concerning a life care plan and should be addressed during direct examination:
Why does the plan provide for 24 hour a day care, if the plaintiff will be sleeping 8 hours a day and/or working in a sheltered workshop environment for several hours a day?
If the plan provides for care by a R.N., could a L.P.N. or a health care aide perform the same tasks for less money?
If institutional care, or a group home, is less expensive, why did the life care planner choose the more expensive option of having the plaintiff live in his or her own home?
If the life care plan provides for institutional care, is the defendant entitled to a deduction from the lost wage claim for meals, utilities, etc. that are being provided as part of that care and would otherwise have to be paid for from the plaintiff's earnings?
If the life care plan provides for institutional care, is there still a loss of household services?
Can the services or equipment described in the plan be obtained at a discount, or negotiated for at a better price, once the plaintiff receives the proceeds of the lawsuit?
If the life care plan provides for specially equipped transportation, has an adjustment been made for what the plaintiff would have spent on transportation had he or she not been injured?
VIII. PLAINTIFF
It is frequently not advisable to have the plaintiff present in the court room except when he or she is ready to testify. In cases involving mild head injury, the juries' initial impression that the plaintiff appears "normal" may be difficult to overcome unless they have first had an opportunity to be prepared for that appearance by the expert and lay witnesses. A traumatically brain damaged client who exhibits inappropriate behavior may distract the jury or cause feelings of hostility. The jury may "get used to" the appearance and deficits of a catastrophically injured client. Further, the absence of the plaintiff from the court room permits all other witnesses to testify candidly about the client's injuries and their effects, without having to worry about the plaintiff's reaction to that testimony.
If the plaintiff has first been introduced to the jurors through the testimony of family, friends and medical witnesses, and through the use of video tape or photographs, they will be ready to accept and understand the limitations that the plaintiff brings to the witness stand when he or she begins to testify. In addition, many persons with head injury are unable to recognize, or deny, the effects of their injuries. Accordingly, counsel should exercise judgment about whether to have the plaintiff discuss his or her injuries in any detail. It is usually much more effective to have had all the other witnesses tell the story of how this injury has effected the plaintiff's life rather than to have the client "complain" about his or her problems.
Instead, if possible, have the client testify about feelings and goals and about how the injury has affected the rest of the family and their future. Let the jury get to know the plaintiff as a human being who is fighting to overcome a disability. Focus on how people look at and react to the plaintiff since the accident and the emotions that are evoked by that treatment. This is the time to make the jury understand how the plaintiff's injuries have affected the quality of life of an entire family, not just one individual.
IX. ECONOMIST
The foundation is now ready for the economist to demonstrate to the jury how much money it must return to make the plaintiff "whole" for the economic losses that have been suffered.
Past medical expenses are generally determined by simply adding up the medical, hospital and related bills that have been introduced into evidence. As these bills have already been paid or will be paid for at the stated amount, no adjustment for inflation is required.
Past lost wages or earnings and benefits are slightly more complex. Based upon the foundation prepared by the vocational rehabilitation expert (or by the economist), the past losses must be "grown" to reflect the actual or "real dollar" value of the losses at the time of trial. That is, how many of today's dollars will it take to compensate for past losses, taking into consideration that the plaintiff has been deprived of the use of the money and that inflation has eroded the purchasing power of those dollars.
The loss of the value of household services is the most frequently overlooked element of economic loss. They are most readily recognized in cases involving the value of services rendered by a "housewife." In such situations, they generally include the value of meal preparation, cleaning, shopping, child care and household management. In terms of men, they traditionally include the value of home and automobile maintenance, repair and improvements. These "traditional" views are, in many situations, no longer relevant in a society that is increasingly composed of single parent families, dual wage earning families and individuals who no longer limit their activities to those of past generations.
There are several replacement cost methods that can be used to arrive at a dollar value of services that the plaintiff had been able to perform for the household before being injured. One method is to determine the cost of hiring a housekeeper to perform those tasks. Another method, which can be used to supplement or replace the housekeeper approach, is the cost of hiring a specialist (i.e., car mechanic, handyman, baby sitter, etc.).
An alternative method is assigning an average value to the services by reference to one of several studies that have been done to value household services. One such study commonly used is The Dollar Value of Household Work, by William H. Gaugher and Kathryn E. Walker and published by the New York State College of Human Ecology at Cornell University (New York State College of Human Ecology Information Bulletin 60, 1980). As these studies employ averages, there is a risk that their use may result in an overstating or understating of the actual work customarily done by the plaintiff. No matter what method is employed by the economist, lay testimony (and, when possible, demonstrative examples) concerning the actual nature of the plaintiff's pre-injury household services are an essential foundation for the economist's testimony.
It is important to remember that the all studies demonstrate that the amount and nature of household services performed by individuals changes, depending upon their age, marital status, the number and age of children in the household and the number of hours per week that they are employed outside the household. Thus, while the nature and extent of the plaintiff's disability may remain constant, the effect that the disability will have on the value of household services changes at different times of the plaintiff's life.
Once the foundation has been established, the economist can deduct the value of the anticipated post-injury household services from the value of the anticipated household services had the plaintiff not been injured. For past losses, that figure is "grown" to reflect losses to the date of trial in "real dollars." For future losses, the figure is reduced to present value.
In using the Life Care Plan to project the cost of future medical care and treatment, the economist should adjust each component of the plan for the appropriate inflationary factors. For example, while the total cost of medical services increased by an average of approximately 8.42% per year during the period from 1970 until 1990, the cost of hospital rooms increased 10.5% per year during that period. Similarly, the physician's price index rose at an average of 8% per year and the cost of medical commodities rose at an average of 6.32% per year (or just slightly higher than the CPI) during that same twenty years. Any attempt to use one rate of increase can subject the expert to intense and effective cross examination.
How the economist will project the value of the future lost or impaired earnings will depend on the type of foundation furnished by the vocational expert. If that witness has given specific dollar values for pre-injury and post-injury employment, the economist need only apply the appropriate inflationary and age-experience factors to those numbers and reduce them to present value. (The age-experience factor is a recognition that the earnings of a typical worker are likely to increase to compensate for increases in the cost of living and for increases in productivity. Adjusted for inflation, real annual wages in the U.S. have increased steadily by 1 to 2% since the 1940's). If the vocational expert has provided an opinion about the nature or extent of plaintiff's employment limitations without providing a specific dollar amount, the economist must first make a projection of pre-injury and post-injury future earnings based upon that opinion. Various official U.S. Government publications are customarily relied upon by economists in projecting work life estimates, earnings and projected increases in earnings. The resulting losses should then (in appropriate jurisdictions) be reduced to present value.
The concept of reducing future losses to present value merely reflects the reality that, at the conclusion of the trial, the plaintiff will be compensated for future losses that have not yet occurred. Accordingly, all future losses must be "discounted" to values expressed in today's dollars. The rate of discount should reflect the rate of return that will be obtained on that component of the verdict when it is invested. While there are many different approaches that are employed, that most often used by conservative economists is the rate of return on short-term U.S. Treasury bills.
The economist, in anticipation of cross-examination, also should explain that investing the money needed for future losses will initially generate a great deal more money than will be needed but that the effects of inflation will ultimately erode the surplus, leaving the plaintiff with nothing left at the end of his or her anticipated life expectancy.
