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1 2 3 4 5 6 7 8 9 10 11 ' 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 GREENE BROILLET &WHEELER, LLP (SPACE BELOW FOR FILING STAMP ONLY) LAWYERS. 1 00 WILSHIRE BOULEVARD, SUITE 2100 2 P.O. BOX 2131 SANTA MONICA, CALIFORNIA 90407-2131 TEL. (310) 576-1200 3 FAX. (310) 576-1220 BRUCE A. BROILLET, State Bar No. 63910 4 ALAN VAN GELDER, State Bar No. 221820 TAYLOR RAYFIELD, State Bar No. 272300 5 Attorneys for Plaintiffs 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES —CENTRAL DISTRICT 10 11 ' '~ WILLIAM ANDROLIA and LINDA CASE NO. BC534479 ~ ANDROLIA, [Re-Assigned for All Purposes to the 12 Honorable Yvette M. Palazuelos, Dept. 28] Plaintiffs, 13 PLAINTIFFS' OPPOSITION TO vs. DEFENDANTS' MOTION ~NLI1t~INE 14 NO.3; MEMORANDUM OF POINTS ENTERTAINMENT CENTER,LLC; CBRE, AND AUTHORITIES; DECLARATION 15 INC.; and DOES 1-100, inclusive, OF TAYLOR RAYFIELD,ESQ.; EXHIBITS 16 Defendants. 17 Complaint Filed: January 29, 2014 AND RELATED CROSS-ACTIONS. FSC Date: May 11, 2017 18 Trial Date: May 22, 2017 19 20 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1CO3.A56 ~~ Plaintiffs' Opposition to Defendants' Motion in Limine No. 3 1 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION. ~~ In July of 2012 Plaintiff walked into a glass door and hit his head on the door. He then started having symptoms of concussion. Plaintiff had a MRI scan which did not show any evidence of a brain bleed or brain damage. Plaintiff then went to a neurologist, Dr. Chang. Dr. Chang began treating him for his concussion symptoms with the hopes that the symptoms would resolve in a few weeks like most concussions. However, Plaintiff's symptoms have continued to last, so Dr. Chang diagnosed Plaintiff with post-concussive syndrome. Dr. Chang tried various treatments and medications and was not having any luck treating Plaintiffs symptoms. Then Dr. [IlI Chang had advanced neuroimaging studies performed on Plaintiff with the hopes that it would 11 provide some ideas of some different treatments that she could try. At the time the advanced a J J ~ M 12 imaging studies were performed Dr. Chang had already diagnosed Plaintiff with post concussive W N Jw ~o 13 syndrome. She was not using the advanced imaging studies to diagnose brain injury. The j M otf N U 14 advanced imaging studies merely confirmed what Dr. Chang already diagnosed. ~ oQ ~ m U ~ oz 15 Defendant disputes that Plaintiff has a mild traumatic brain injury and is blaming his m aw W 16 underlying medical history and depression for the symptoms that Plaintiff is experiencing. z z w ~ ~ 17 Defendant is seeking to exclude any and evidence relating to the advanced neuro imaging studies. c~ 18 that were performed. Defendant cites to one article amidst the hundreds of articles on this issue to 19 support its' contention that advanced neuroimaging is unreliable across the board. This court 20 should not be persuaded. 21 ~ II. ADVANCED NEUROIMAGING TECHNIQUES ARE RELIABLE AND 22 ACCEPTED IN THE SCIENTIFIC COMMUNITY TO DETERMINE THE ~r~c~ EXTENT OF PLAINTIFF'S TRAUMATIC BRAIN INJURY. •~! The federal courts have already determined admissibility of advanced neuroimaging. In 25 White v. Deere & Company, Slip Copy, 2016 WL46290, Defendant moved to exclude the 26 opinions of Plaintiff's expert Dr. Benson. Dr. Benson opined Plaintiff suffered a traumatic brain 27 injury and based that opinion in part on DTI (advanced neuro imaging). The Court denied 28 Defendant's motion to exclude Dr. Benson's opinions based on DTI because it found DTI to be - 1- 1 CO3.A56 riaintirrs• opposition to uerenaants' nnotion m ~~mme No. s 1 reliable and relevant. The Court noted DTI finds have been admitted by multiple courts. Id. at 10- 2 12. "In df, the evidence submitted shows DTI has been tested and has a low error rate; DTI has 3 been subject to peer review and publications; and DTI is generally accepted method for detecting 4 TBI." Id. The Court also noted Dr. Benson's conclusion of TBI was not based solely on the DTI 5 findings but on other sources of data. Id. at 5. See Exhibit 1 to Taylor Rayfield's Declaration, 6 Slip Copy of Opinion. 7 Other federal courts,have similarly concluded that DTI is a reliable tool, and that the 8 findings of DTI may be testified to by appropriate experts. See Andrew v. Patterson Motor 9 i Freight, Inc. (W.D. La. Oct. 23, 2014) 2014 WL 5449732; Chiulli v. Newberry Fine Dining Inc., 10 No. 10-10488-JLT (D. Mass. Sept. 30, 2013) 2013 WL 5494723; Ruppel v. Kucanin (N.D. Ind. 11 2011) 2011 WL 2470621 ("the evidence shows that DTI and analysis of white matter in DTI a J J ~ M 12 images are generally accepted methods for determining mild TBI"); Booth v. Kit(D.N.M. Mar. 23, J N wW 13 2009)2009 WL 4544743. M p~ ~2S N U 14 Here, Dr. Chang is not using the advanced neuro imaging solely to form her opinions about ~ oQx ~ m U -~ Q Z 15 Plaintiff's brain injury. Dr. Chang already formed the opinion that Plaintiff was suffering from m °'~ w 16 post concussive syndrome before she even did the advanced neuro imaging. This imaging simply z z w ~ ~ 17 confirmed what Dr. Chang had already diagnosed, that Plaintiff has a brain injury 18 Advanced neuro imaging has been admitted in this very Courthouse. In fact Judge Feffer 19 allowed evidence of a functional MRI into evidence in 2014. In an unpublished California case, 20 Diao v. Southern California Gas Company, the Second District, Division 1, Court of Appeals 21 affirmed a lower court judgment which considered evidence of an abnormal fMRI for purposes of 22 proving mTBI caused by the blasting force of ignited natural gas. (Diao v. Southern CalifoNnia 23 Gas Company (Jan. 8, 2016) 2016 WL 110000 [not officially published].) While not specifically 24 deciding on the admissibility of the fMRI, the Court of Appeals concluded that the fMRI, along 25 with a SPECT scan, neuropsychological testing, constituted substantial evidence of TBI. (Id. at p. 26 8.) Judge Feffer allowed the fMRI into evidence in 2014 as evidence that the Plaintiff suffered a 27 TBI. 28 -2- 1 CO3.A56 riaintitts~ opposition to uerenaants' nnotion m ermine No.:~ 1 Other State court too have determined that DTI is reliable and generally accepted in the 2 medical community. For example, New York has led the way in helping the legal community 3 recognize the reliability and accuracy of DTI that the medical community accepted years ago. In 4 Lamasa v. Bachman, a published opinion in which the New York appellate court held that DTI 5 evidence was properly admitted as it could not be characterized as novel science, but rather, 6 "objective medical tests." Lamasa v. Bachman, 869 N.Y.S. 2d 17, 18. As the trial court stated, 7 "DTI provides anatomical information about tissue structure and composition," the properties of 8 which can often by correlated with disease and traumatic brain injury. Lamasa v. Bachman, 2005 9 N.Y. Slip Op. 50882(U) (N.Y. Sup. Ct. April 13, 2005) 2005 WL 1364515, at fn. 3. 10 In an article entitled, A Decade of DTII Traumatic Brain Injury: 10 years and 100 Articles 11 Later, the American Journal of NeuroRadiology (2013) reported the findings of Hulkower, et al. J J 12 who concluded that "A unifying theme can be deduced from this large body of research: DTI is an ~ ~ J N for the detection of TBI-related brain abnormalities." See Exhibit w ~ 13 extremely useful and robust tool j M ~ Appropriate Use of DTI in mTBI otS N U 14 3 to Rayfield Dec, "Clarifying the Robust Foundation for and ~W ~am U -~ Q Z 15 patients." m a d patients. In the Journal of w 16 Further studies support use of fMRI for traumatic brain injury z z w ~ ~ 17 Neurotrauma (July 15, 2016), "Is Resting State Functional Connectivity in Mild Traumatic Brain c~ 18 Injury at the Acute Stage: Independent Component and Seed Based Analysis," fMRI is a viable 19 alternative in detecting injury related abnormalities that structural MRI's do not. Rayfield Dec. 20 Exhibit 4. 21 The Radiological Society of North America (October 2012), "Default Mode Network 22 Disruption in Mild Traumatic Brain Injury" utilized fMRI to measure reduced connectivity in the 23 PCC and parietal regions and increased frontal connectivity around the MPFC in patients with 24 mild traumatic brain injury. See Rayfield Dec., Exhibit 5. 25 The Journal of the American Medical Association, "Resting State Functional Magnetic 26 Resonance Imaging Activity and Connectivity and Cognitive Outcome in Traumatic Brain 27 Injury," discussed fMRI abnormalities in signal amplitude and brain connectivity at rest and their ~►•~:~ - 3- 1 CO3.A56 Plaintiffs' Opposition to Defendants' Motion in umme No. 1 relationship to cognitive outcome inpatients with chronic and severe axonal injury. Rayfield Dec. 2 II Exhibit 6. 3 The Journal of Neurotrauma (June 1, 2016), "Is Traumatic Brain Injury Associated with 4 Reduced Inter-Hemispheric Functional Connectivity? A Study of Large Scale Resting State 5 Networks following Traumatic Brain Injury" discussed resting state fMRI and how it was utilized C'~ to display a specific pattern of aberrant FC following a traumatic brain injury. Rayfield Dec. 7 Exhibit 7. 8 Thus, as Plaintiff's experts will state, the advanced neuroimaging is like other imaging 9 modality where it does not reveal the etiology of a particular pathology all by itself In the case of 10 traumatic brain injury the advanced neuroimaging studies is used in conjunction with clinical data, 11 such as historical data., physical examination, and neurological examination.
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