Brain Injury: The Challenge of Proof

By C. David Fonvielle, Firm Partner

     The closed head injury involving traumatic brain injury (TBI) can be one of the more challenging injuries for the personal injury attorney to prove.

     The primary problem for the attorney is the fact that in most TBI cases there is no physical evidence of the injury. By definition, the closed head injury does not involve a fractured skull, and in many instances does not involve any objective signs of brain damage on CAT scans, MRI testing or EEG recording. The primary evidence of the traumatic brain injury is often nothing more than observations by friends and family as to changes in behavior after an accident.

     It is this lack of medical evidence which challenges the personal injury attorney when it comes to proving these type injuries exist and were caused by a specific incident.

     Such was the situation for attorneys C. David Fonvielle and Halley B. Lewis III in a case which went to trial in April 1995, in Jacksonville, Florida. As a result of an auto accident in 1991, our client’s car was struck from behind by a Wells Fargo truck and shoved forward rapidly enough to break the supports to the back of his driver’s seat.

     After the accident, our client got out of the car and although shaken by the circumstances, appeared not to be seriously injured. Following a brief trip to the emergency room, he went on to work that day and has continued to work to the present time.

     Unfortunately, within a month or so after the accident, our client’s co-workers began to occasionally find him seated at his computer in a trance-like state. When they would get his attention, he didn’t know the trance occurred. His family also began to notice that, contrary to his pre-accident status, he was now forgetful and also experienced extreme mood swings.

     He was referred to a neuropsychologist for evaluation and the test results revealed that he had some significant cognitive deficits which were inconsistent with his pre-accident abilities and behavior, but consistent with many of his post-accident symptoms. Although subsequent neurological testing utilizing a machine which records brain waves (EEG) was unable to verify any brain irregularities, our client’s doctors diagnosed the cause of his brief trance-like episodes to be a seizure condition known as a partial complex seizure disorder. His mood swings were diagnosed as an organic mood disorder resulting from trauma to his brain and his cognitive deficits were diagnosed as having been caused by trauma to the brain. Because none of these conditions existed prior to the auto accident, doctors and brain injury experts attributed the deficits and seizure condition to the auto accident.

     Wells Fargo’s attorneys were appalled by our client’s diagnoses and contended that since he never hit his head in the accident, appeared to be fine immediately following the accident, and numerous EEG studies of his brain were normal, that he could not have sustained the brain injury diagnosed as causing his problems. As part of the litigation process, our client was compelled to submit to independent medical examinations by a neurologist and neuropsychologist chosen by the defendant’s attorneys, and both of these doctors disagreed with our client’s diagnoses. The neurologist chosen by the defendant testified at trial that our client was faking all his conditions and that it was not possible that he had the complex seizure disorder.

     At trial our experts further explained to the jury that the brain can sustain serious damage as a result of nothing more than sudden acceleration such as occurred when the Wells Fargo truck struck our client’s car from behind. Sudden acceleration can result in shearing (breaking) of connectors (axons) in the brain which transmit messages throughout the brain.

     Our experts further explained to the jury that although it is often impossible to document this type of brain injury by objective testing, that this condition can be diagnosed by a careful comparison of the patient’s pre-accident and post-accident condition, his reaction to medication, and a careful analysis of the symptoms reported by the client, family and friends.

     After a week long trial, the jury agreed that our client had suffered traumatic brain injury in the auto accident and awarded him $1,597,178.72.