Delving Deeper Into Tbi Law and Science
Total Page：16
File Type：pdf, Size：1020Kb
THE CUTTING EDGE 2015: DELVING DEEPER INTO TBI LAW AND SCIENCE Jeffrey A. Brown, M.D., Esq., Neuropsychiatry David M. Mahalick, Ph.D, ABPN, Neuropsychology William N. DeVito, Esq., The Law Offices of Leon R. Kowalski CLE Materials -- TABLE OF CONTENTS Document 1 --------------------------- Course Agenda Document 2 --------------------------- Andrew v. Patterson Motor Freight, Inc. Document 3 --------------------------- Bio: David M. Mahalick, Ph.D, ABPN Document 4 --------------------------- Contact Information for the Presenters Document 5 --------------------------- Curriculum Vitae: Jeffrey A. Brown, M.D., Esq. Document 6 --------------------------- Halsne v. Avera Health Document 7 --------------------------- Lamasa v. Bachman Document 8 --------------------------- Leung v. Verdugo Hills Hospital Document 9 --------------------------- Treatise Excerpts: From Litigating Brain Injuries By B. Stern and J. Brown © Materials under copyright by West, a Thomson Reuters Business Reprinted by Permission Document 10 -------------------------- Lugo v. New York City Health and Hospitals Corp. Document 11 -------------------------- Topic Outline: David M. Mahalick, Ph.D, ABPN Document 12 -------------------------- Ruppel v. Kucanin Document 13 -------------------------- Todd v. Baker Document 14 -------------------------- Curriculum Vitae: William N. DeVito, Esq. Document 15 -------------------------- Wilson v. Corestaff Services L.P. Document 16 -------------------------- Zawaski v. Gigs, LLC Document 1 Course Agenda The Cutting Edge 2015 Co- Presenters: Jeffrey A. Brown, MD, JD, David Mahalick, PHD and William Devito, Esq. DANY DINNER – Date to be determined 1. Intro A. Devito – 10 minutes - Why talk about brain injury cases - Increasing financial stakes in brain injury claims (dollar values) - New Science - Focus on the team and strategy - How is plaintiff going to present the case and tests that come up - New cases on Diffusion Tensor Imaging - People Recover the classic case of Phineas Gage 2. Investigating Closed Head Brain Injuries A. Mahalick – 25 minutes - Types of Brain Injuries - What to look for in Medical Records - Identifying TBI - Clinical Testing by a neuro-psychologist - Framing the degree of alleged damage - co-occurring psychiatric disorders - treatment Devito Intro to Brown B. Brown Defense Tactics in TBI Cases -25 minutes - Finding inconsistency in past and present medical and mental history - What to look for in Employment and School Records - How to Use IME’s and Science to Argue no permanent Injury - Use of Video deposition of plaintiff and why and what to look for in surveillance and photos - Spotting inconsistencies and exaggeration and somataform disorder - Presenting alternative arguments for plaintiff’s problems and demonstrating that the plaintiff has not mitigated damages - The latest on DTI and other advanced testing C. DeVito 20 minutes Translating the neuroscience into winning legal strategies - Using discovery to find out what baseline you started with – what brain were you dealing with before the accident - Discovery for the medical exam - New Cases on the admissibility of diagnostic exams for TBI review of cases on evidentiary rulings on the most common - Using sensitivity and specificity arguments to win the case 10 minute break 3. Approaching medical and legal challenges making their way to the northeast A. DeVito 5 minutes – B. Does Obama Care entitle you to discount the plaintiff’s future medical claim and lifecare plan? What the cases really say. -Watching the ever changing science C. Brown/Makalick ten minutes The latest science in the pipeline biomarkers, brain mapping, and Prions 4. Q&A – discussion – fifteen minutes open discussion and questions Document 2 Andrew v. Patterson Motor Freight, Inc. Page 1 Slip Copy, 2014 WL 5449732 (W.D.La.) (Cite as: 2014 WL 5449732 (W.D.La.)) Only the Westlaw citation is currently available. Proffered Expert Testimony and Report Re- garding Mitigation of Damages and Rea- United States District Court, sonable Alternatives” [Doc. 67]. Those mo- W.D. Louisiana, tions will be addressed by separate ruling. Lafayette Division. Robert Craig ANDREW, et al. Considering the law, the facts in the record, and v. the arguments of the parties, the Court GRANTS PATTERSON MOTOR FREIGHT, INC., et al. plaintiffs' motion to limit the testimony of George “Tracy” Latiolais [Doc. 47]; the Court DENIES IN Civil Action No. 6:13CV814. PART and DEFERS IN PART defendants' motion in Signed Oct. 23, 2014. limine/ Daubert challenge to Dr. Eduardo Gonza- lez–Toledo [Doc. 51]; and the Court DENIES IN PART and DEFERS IN PART defendants' motion in James Harvey Domengeaux, Domengeaux Wright et limine/ Daubert challenge to Dr. Mark S. Warner al, Lafayette, LA, for Robert Craig Andrew. [Doc. 52]. Michael J. Remondet, Jr., Jeansonne & Remondet, I. Factual Background Lafayette, LA, for Patterson Motor Freight Inc. This matter involves a motor vehicle accident occurring on June 29, 2012, in the town of Broussard, MEMORANDUM RULING Louisiana. [Doc. 1, ¶¶ 6, 7] According to the com- REBECCA F. DOHERTY, District Judge. plaint, plaintiff Robert Andrew was injured when he *1 Currently pending before the Court are the was struck by a tractor-trailer operated by defendant following motions: (1) plaintiff's “Motion in Limine to Cecil A. French. [Id. at ¶ 7] Plaintiff alleges Mr. Strike and/or Limit Certain Testimony of Lay Wit- French was in the course and scope of his employment ness, George ‘Tracy’ Latiolais” [Doc. 47]; (2) “De- with defendant Patterson Motor Freight, Inc. at the fendants' Motion in Limine/ Daubert Challenge to time of the collision. [Doc. 5, ¶ 3] Plaintiff alleges as a Exclude or Limit the Trial Testimony and Evidence of result of the accident, he “sustained a Traumatic Brain Dr. Eduardo Gonzalez–Toledo and Request for Injury to the frontal lobe resulting in residual deficits Hearing” [Doc. 51]; and (3) “Defendants' Motion in in the areas of emotion, impulsivity, personality, and Limine/ Daubert Challenge to Exclude the Trial Tes- short term memory.” [Doc. 48, p. 3] Plaintiff addi- timony and Evidence of Dr. Mark S. Warner, Ph.D” tionally alleges he sustained a fracture of a thoracic [Doc. 52] .FN1 vertebrae (for which he underwent a T8 Kyphoplasty), and damages to the facets at the L4–5 region of the FN1. Additionally pending are: “Defendants' spine (with a recommendation of an L3–4 and L4–5 Motion in Limine/ Daubert Challenge to fusion with rods). [Id.] Plaintiff asserts he “has suf- Exclude the Trial Testimony and Evidence of fered and continues to suffer with severe back pain John W. Theriot and Request for Hearing” and general body pain, cognitive difficulties, head- [Doc. 53], and plaintiffs' “Motion to Exclude aches, sleep deprivation and disturbances, mood un- Expert Witness, Frank Stagno, CPA/ABV certainties, and confusion.” FN2 [Id.] Trial of this and/or Motion in Limine as to Defendants' matter is scheduled for December 8, 2014. [Doc. 26] © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 Slip Copy, 2014 WL 5449732 (W.D.La.) (Cite as: 2014 WL 5449732 (W.D.La.)) To be admissible at trial, expert testimony must FN2. Plaintiff's wife, Susan M. Andrew, as- satisfy the conditions of Federal Rule of Evidence serts a claim for loss of consortium. [Doc. 1, 702, which provides: ¶ 12] References herein to “plaintiff” are to Robert Andrew. A witness who is qualified as an expert by knowledge, skill, experience, training, or education II. Standards of Review may testify in the form of an opinion or otherwise if: A. Lay Testimony (a) the expert's scientific, technical, or other spe- cialized knowledge will help the trier of fact to understand the evidence or to determine a fact in Rule 602 of the Federal Rules of Evidence states issue; in pertinent part: “A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the (b) the testimony is based on sufficient facts or matter. Evidence to prove personal knowledge may data; consist of the witness's own testimony.” Fed.R.Evid. 602. If it is determined the witness does have personal (c) the testimony is the product of reliable prin- knowledge of the matters to which he intends to tes- ciples and methods; and tify, the nature of the witness' testimony is further limited by Rule 701, which provides: (d) the expert has reliably applied the principles and methods to the facts of the case. If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: Fed.R.Evid. 702. A district court has considerable discretion in deciding whether to admit or exclude (a) rationally based on the witness's perception; expert testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 *2 (b) helpful to clearly understanding the wit- (1999) (“[W]e conclude that the trial judge must have ness's testimony or to determining a fact in issue; considerable leeway in deciding in a particular case and how to go about determining whether particular expert testimony is reliable.”); General Elec. Co. v. Joiner, 522 U.S. 136, 139–40, 118 S.Ct. 512, 139 L.Ed.2d 508 (c) not based on scientific, technical, or other (1997)(abuse of discretion is the standard of review). specialized knowledge within the scope of Rule 702. “Rule 702 requires trial courts to ensure that proffered expert testimony is ‘not only relevant, but Fed.R.Evid. 701; see also U.S. v. Ebron, 683 F.3d reliable.’ “ Brown v. Illinois Cent. R. Co., 705 F.3d 105, 137 (5th Cir.2012)(“A lay opinion must be based 531, 535 (5th Cir.2013)(quoting Daubert v. Merrell on personal perception, must be one that a normal Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 person would form from those perceptions, and must S.Ct. 2786, 125 L.Ed.2d 469 (1993)). “To determine be helpful to the jury.”) whether proffered testimony is reliable, the trial court must make ‘a preliminary assessment of whether the B.