Discovery Plan
Developing a discovery plan is an important part of the overall strategic plan for any case, including TFA cases. With the help of experts, a defense strategy should focus on the plaintiff’s pre-incident and post-incident condition.
Pre-incident Condition
Obtain the plaintiff’s pre-incident medical/mental health records. Review the plaintiff’s pre-incident education and employment records, and identify witnesses familiar with the plaintiff’s pre-incident personality, habits, and function. Consider the following when analyzing the plaintiff’s pre-incident condition:
- Was the plaintiff exposed to social stressors like divorce, employment termination, etc., prior to the incident?
- Did the plaintiff have alcohol or substance abuse issues?
- Did the plaintiff have poor pre-incident educational performance?
- Did the plaintiff have a poor pre-incident employment history?
- Did the plaintiff have prior head/neck injuries, including workers’ compensation claims, disability claims, automobile accidents, or sports injuries?
- Did the plaintiff have prior mental health issues or learning disabilities?
- What was the plaintiff’s pre-incident social behavior?
Post-incident Condition
Obtain the plaintiff’s medical records following the incident paying particular attention to the Glasgow Coma Scores, MRIs, CT scans, neuropsychological testing, and medication. Obtain post-incident education and employment records. Obtain post-incident social media posts, and the plaintiff’s post-incident criminal records and traffic violations.
Surveillance of the plaintiff’s daily activities may be helpful but do so with extreme caution since you will likely be stuck with the results. Consider the following when analyzing the plaintiff’s post-incident condition:
- What was the scope and extent of the plaintiff’s physical injuries?
- Did the plaintiff lose consciousness? For how long?
- Did the plaintiff report TBI symptoms at or near the time of the incident, or days or weeks later?
- What was the plaintiff’s GCS? When was the score obtained?
- Identify all neurological testing performed, when it was performed, and obtain raw data from the tests.
- Are the plaintiff’s complaints consistent with the areas of the brain injury?
- Does the plaintiff’s reporting of symptoms change, evolve, or conflict?
- Since concussion symptoms are non-specific, did the treating physician rule out other possible causes through differential diagnosis?
- Do any treating physicians suggest malingering or secondary gain issues?
- Compare the plaintiff’s pre-incident report and post-incident medical and mental health, social media behavior, educational performance, employment history, social stressors, and personality. Are there any significant negative changes from pre-incident to post-incident? Could the plaintiff’s current condition be explained by other events or stressors unrelated to the subject incident?
Engage Experts
Engage experts at the earliest opportunity. Consider using one or more of the following experts in a TBI case:
- Neurologists and neurosurgeons can diagnose TBIs and may offer opinions concerning the nature of the injury.
- Neuroradiologists evaluate diagnostic scans and render findings based on the scans.
- Neuropsychologists conduct psychological testing to determine whether the alleged TBI caused cognitive impairment.
- If the plaintiff is claiming mental or emotional issues following the incident, you may consider involving a psychologist or psychiatrist.
- A biomechanics expert may be able to determine the amount of force imparted to the skull from a particular incident.
- Lifecare planners should be engaged with caution by defense counsel and typically used only to rebut a plaintiff’s life care plan.
Conclusion
TBI cases are complex. Although the diagnosis of TBIs involves subjective reports from plaintiffs and subjective testing, these injuries cannot be taken lightly. Such injuries can significantly and permanently impact a plaintiff’s quality of life and may require expensive future medical care. Defending these claims requires experienced defense counsel, a well-thought-out discovery plan, and a multi-disciplinary expert strategy.
Defending Traumatic Brain Injury Claims Part I – What is a Traumatic Brain Injury
Defending Traumatic Brain Injury Claims Part II – Diagnosing a Traumatic Brain Injury
M. Jansen Voss has developed a diverse defense litigation and appellate practice in both state and federal courts in Alabama and Mississippi. He represents a wide range of businesses, governmental entities, and individuals in complex personal injury and wrongful death lawsuits, as well as business disputes and breach of contract matters.
About Christian & Small
Christian & Small LLP represents a diverse clientele throughout Alabama, the Southeast, and the nation with clients ranging from individuals and closely held businesses to Fortune 500 corporations. By matching highly experienced lawyers with specific client needs, Christian & Small develops innovative, effective, and efficient solutions for clients. With offices in Birmingham, metro-Jackson, Mississippi, and the Alabama Gulf Coast, Christian & Small focuses on the areas of litigation and business, is a member of the International Society of Primerus Law Firms, and is a Mansfield Rule™ Participating Law Firm. Our corporate social responsibility program is focused on education, and diversity is one of Christian & Small’s core values.
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