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Handling and Defending TBI and CRPS Cases
The Brief, Volume 47, Number 1, Fall 2017.
Published in The Brief, Volume 47, Number 1, Fall 2017. © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Every litigator who handles personal injury cases is aware that the value of these cases is largely determined by the type of injury alleged by a plaintiff. In many cases, this can be determined by relatively objective methods. Did the x-ray demonstrate a broken bone? Did the MRI show a bulging disc? The more difficult cases are ones in which a plaintiff alleges an injury that is based primarily on subjective complaints and less on objective diagnostic tests. These types of injuries can turn a case with seemingly minor injuries into a high-exposure claim, or take a case with serious injuries and significantly increase the exposure for a defendant.
What makes many of these claims difficult to value is that much of the diagnosis and symptoms are based on the subjective statements of the plaintiff. The symptoms from these injuries, such as memory loss and pain, can be tempting to exaggerate, especially if the plaintiff understands that embellishment of the symptoms could
add value to his or her claim. Additionally, defense of these claims is costly, both in terms of time and resources, as it takes significant investigation by both defense counsel and retained experts to uncover the true severity of the injury or whether the injury even exists.
These types of injuries can also create a delicate situation for the presentation and defense of the claims at trial. A defendant must be careful when suggesting
that a plaintiff is exaggerating or fabricating an injury due to the risk of appearing unsympathetic, which can be costly in front of a jury. On the other hand, proper
investigation and credible evidence that cast doubt on a plaintiff’s claims and alleged injuries can create disfavor toward the plaintiff, winning the case for the defense.
This article addresses how to handle and defend these types of claims. While the discussion focuses on two examples of these types of injuries—traumatic brain injury and complex regional pain syndrome—the information can be applied to any claim where an injury with subjective complaints is alleged.