WHAT IS THE DEFENSE STRATEGY IN TRAUMATIC BRAIN INJURY CASES? 

During litigation to recover compensation for a brain injury, the Defense Counsel may apply numerous tactics to discredit the victim and the injury.  The defense strategy in traumatic brain injury cases can be very aggressive.  Such strategies include:

  • Emphasizing the lack of reporting of the brain injury in early medical records, 
  • Emphasizing the fact that the victim may have said they were okay at the scene of the incident, 
  • Emphasizing the fact that the incident may not have been sufficiently violent, or 
  • Emphasizing the fact that there may be a prior history of brain trauma.  

In order to refute the fact that there was no early reporting of the brain injury in medical records, Plaintiff’s counsel should introduce publications by the Center for Disease Control, which expressly state that patients must be specifically questioned as to whether they have had an injury or accident.  This is important because some patients may not mention the injury-causing accident to their physician at all. The publication can be admitted as evidence if the Plaintiff’s expert establishes it as a reliable authority. The publication can also be used in cross-examination of the Defendant’s expert. The Federal government’s publication may also be admitted by judicial notice.    

Defense counsel may also point to prior educational and work records to show there is no serious impact from the alleged brain injury.  Defense counsel may claim the injured victim’s doctors are “hoodwinked” and cannot be trusted.

Similarly, Defense counsel will have its retained neuropsychologist testify that the plaintiff had premorbid functioning.  Defense counsel will show plaintiff’s poor educational transcripts (such as repeating of grades or failure to obtain a General Education Development diploma or “GED”), occupational levels, present ability measures, and evidence of preexisting deficits (learning disabilities).

The defense will attempt to introduce sub rosa and surveillance evidence to expose an allegedly dishonest plaintiff by using advanced video editing technology to make a truly injured plaintiff appear to be not injured, or less injured.  Defense counsel will also attempt to “break down” the injured victim at a video deposition.      

Defense counsel may attempt to show that the plaintiff was taking certain medications that  can have a “masking” effect which can alter the result or outcome of certain neuropsychological tests and make them faulty. This is an important challenge facing plaintiffs who take certain neuroleptics and antidepressants. 

Overall, the Defense counsel may try to show the jury that the injured victim is “malingering” and lying about the injury.  However, in order to prove malingering, elements must be satisfied. If injured victim’s own treating physicians have never suspected the victim of malingering, then Plaintiff’s counsel can argue that the treating doctors’ opinions should be persuasive and controlling. 

The Defense counsel’s tactics can be overcome if the Plaintiff’s counsel takes the necessary steps to show the jury that the injured victim plaintiff is credible, the event was violent, the mTBI criteria are satisfied, and the impact on the injured victim’s life before as compared to after the injury.  Plaintiff’s counsel should also present collateral witnesses and corroborative medical evidence. It is important for the Plaintiff’s counsel to present the case in a way that grabs the jury’s attention to build momentum throughout the trial and to show that the defense is cynical.

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