While stopped in interstate traffic in a pickup truck, the 63-year-old plaintiff, and his wife, both retirees, were rear-ended by an 18-wheeler truck, which pushed them into the flatbed truck in front of them. He did not appear to have any injuries, and his wife had only a large laceration on her forehead. At the hospital, their son noticed that his father stayed in a corner looking a little dazed instead of sitting by his wife as she received stitches, which was odd behavior. The next day, his general practitioner diagnosed a shoulder strain and found no signs of head trauma.
Over the next few months, however, the plaintiff’s family became concerned. Before the collision, he had exhibited mild forgetfulness; he would lose his keys or his wallet and sometimes forgot to put in his dentures. Immediately after the accident, the forgetfulness got worse. Initially, his family thought he was depressed, but they eventually began noticing other problems. Formerly a computer whiz who put computers together from scratch, he was unable to reassemble a computer he took apart for his son. If he was in an unfamiliar place, he would become confused and scared. He also began isolating himself from people and could not seem to come out of his daze.
Four months after the collision, the family took the plaintiff back to the doctor, insisting something was wrong. Tests again showed no head trauma, but the doctor referred him to a neuropsychologist. The family informed the neuropsychologist about his previous forgetfulness. Although the physician’s tests confirmed that their patient was asserting a full effort and had gotten noticeably worse after the incident, he completed a report stating that the plaintiff had early dementia that was not caused by the collision.
The plaintiffs then sought out experienced legal counsel who reviewed the medical records thoroughly and discovered a notation of shoulder bone marrow edema, indicating the impact was hard enough to cause deep bruising. They then turned to the Internet and found several studies finding that when a person has even mild brain damage—such as the beginnings of dementia—any collision can accelerate the damage, a phenomenon called diffuse axonal shearing.
Armed with his research, plaintiff’s counsel asked the neuropsychologist if anoxal injuries possibly occurred in this case. “The doctor said that’s what he believed happened here,” counsel relates. “The accident did not cause the cognitive problem. It was already there. But this made it worse.” The case was now more complicated because the defendant contested damages for the head trauma, and settlement talks ended. Counsel would have to prove at trial that the incident caused head trauma even though the plaintiff did not suffer a direct impact during the crash, the tests showed no physical brain damage, and the doctor made a finding that the collision did not cause the dementia.
Counsel’s theme at trial was that the impact of acceleration/deceleration forces on a person with dementia “fast forwards” the age of the brain, causing the symptoms to worsen much faster. He elicited testimony from the general practitioner; the neuropsychologist; and an orthopedic surgeon who repaired plaintiff’s shoulder. The defendant’s main strategy was to try to weaken the doctors’ testimony, but he maintained that although his report was correct in that the dementia was not caused by the incident, he believed it was exacerbated by it. The defense also asked about plaintiff’s use of the cholesterol drug Lipitor, arguing it has been linked to memory deficits. Both doctors testified they had not seen any evidence of that. Finally, defense counsel implied during cross-examination that the doctor and plaintiff’s counsel had conspired to win the case !
The jury awarded $825,400, including $37,500 for plaintiff’s past medical expenses and $47,900 to his wife. Plaintiff’s counsel credits the fact that his injured client’s family was upfront with the doctor about his symptoms before the collision, showing they were honest. “They could have just lied about it, and no one would have been the wiser,” counsel notes. “If the person has credibility and is complaining, and the family knows something is wrong, bring that out on direct. They’re important details in a subjective case.”
Tullier v. Dynasty Transp., Inc., La., Ascension Parish 23d Jud. Dist., No. 84137A, Apr. 14, 2008; AAJ Law Reporter, Volume 51, No. 6, August 2008 Spotlight case at p.p.193-194