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TBI DEFENSEProving defense expert’s opinions are inadmissible can be extremely complex and challenging, especially in the context of complicated cases such as product liability cases and brain injury cases.  When the issue in the case involves a moderate or a severe traumatic brain injury, proving both the injury and the extent of the injury is not difficult with subjective and objective findings supported by medical records.  That is not the case with mild traumatic brain injuries where both the symptoms and signs associated with such injury may not be detected in imaging studies and there is little medical documentation on the subjective complaints of the injured party.

In cases involving mild traumatic brain injuries, the main point at controversy is whether Plaintiff did in fact suffer the alleged injury absent clear symptoms and signs documented in a clear timeline in the medical records.  Even though there are several studies that reveal that a person can in fact have a brain injury in spite of having no immediate symptoms or objective findings (e.g., loss of consciousness, positive imaging studies, Glasgow Coma Scale scores below 15, etc.), defense attorneys and their experts, may still try to circumvent these neurological studies by asserting that in the absence of clear symptoms and/or signs showing otherwise, there is just no brain injury or the brain injury healed.  After all, the plaintiff has both the burden of proof and persuasion.

We have handled several TBI-related cases and we know for a fact that this not true.  But how can you prove your TBI case when your opposing party has a qualified hired gun expert who is challenging your client’s brain injury?  The following are some steps you should follow to prove that the defense expert’s opinions are inadmissible:

  1. Research.  Find out everything about the defense expert witness in google, Lexis Nexis, criminal background, memberships in associations, and the cases where the expert has been retained, whether the expert’s testimony was stricken, and the outcome of those cases.  That also means obtaining copies of the relevant records on those cases, such as depositions, trial testimonies, reports, the expert’s curriculum vitae that contains his/her academic and professional background.
  2. Learn About Brain Injuries and How the Brain Works Too.  Get familiar with brain injuries, their most common symptoms, ways to diagnose brain injuries, cases in which misdiagnosis may occur, new technologies in diagnosing TBI’s, the effects of TBI’s, and the most common definitions, among others.
  3. Retain A Consulting Expert.  With all your newly acquired knowledge, you will be able to understand the basics and be able to have meaningful discussions with experts.  Retain a qualified expert and who is not only an expert in the field, but who has enough experience, qualifications and credentials to support his opinion.  In choosing an expert, you should conduct a similar research about your expert as mentioned above.  Once all is clear, you should ask your consulting expert to analyze the opposing expert’s opinion as soon as he is designated and renders his report.  Lastly, make sure your consulting expert considers and addresses every aspect of your case from the TBI standpoint.
  4. Prepare for Depositions. 
  5. a) Before Deposition.

As soon as the defendant’s expert is designated and renders his/her opinion, send discovery requests if permitted by your local rules and ask for the expert’s deposition.  The main objective is to obtain all of the materials relied upon by the expert in support of his conclusions, which includes peer reviewed literature.  Lastly, make sure you subpoena the expert to bring his entire file, which must include all materials, peer reviewed literature, and studies relied upon as well as all bills/invoices/evidence of payment, etc.

  1. b) During Deposition.

            At this time, you should know what the expert’s qualifications credentials, and experience he has or does not have.  You should have all the relevant questions based on your research ready, and which are aimed at learning:

  • Whether the expert has knowledge and experience in the subject matter, in this case traumatic brain injury;
  • The expert’s experience in the field;
  • Whether he or she has an appropriate academic background;
  • Whether the expert is a member of any organization, association, state bar, etc.
  • Whether the expert is considering all the relevant facts and not excluding some in in reaching his conclusions; and/or
  • The extent of the expert’s bias.

There are several more subject areas to explore questions that can be asked depending on the defense expert’s responses and/or his evasiveness to respond, but these are the main ones you should be mindful of when preparing for the deposition.  It is also very important to identify each and every document the expert has in his file on the record.

If you feel that the defense’s expert lacks qualifications or foundation to make his opinions reliable or that the defense violated the rules of expert discovery, you may consider moving to strike portions of his testimony or exclude him entirely.  The attorneys of the Amaro Law Firm have vast experience handling TBI cases, and we are confident we can help victims not only in navigating through the legal complexities involving this type of injures, but also in helping victims get the compensation they deserve.