Defending the Pediatric Traumatic Brain Injury Case

Discovery Tools

Although the discovery tools here are not specific to the pediatric brain trauma case, the age of the child and the nature of the injury alter the focus of discovery requests.

Interrogatories: As in all personal injury cases, interrogatories are an invaluable first tool to discover the basic information about the plaintiff: age, address, schools attended, pediatrician's name, identities of treating doctors and hospitals, pharmacies used by the family, employers, and the family's medical, academic and employment history.

Medical Record Collection: The defense attorney must take a scorched-earth approach to medical record collection; obtain every medical record prepared about the child. There are several goals of medical-record collection: to develop alternative causation theories, to identify witnesses to depose, and to build a plan to minimize damages. Using Health Insurance Portability and Accountability Act (HIPAA)-compliant authorizations, the attorney must send requests to every pediatrician, family doctor, hospital and specialist who treated the child. (HIPAA, 42 U.S.C. ' 201 et seq.) Pediatrician records are an invaluable source of information for several reasons: 1) the records track the physical, emotional and mental development of the child from birth to the event; 2) the records contain reports from specialists, allowing the defense attorney to obtain records directly from those providers; 3) they document any post-accident sequelae and the child's academic performance; and 4) the records reveal whether the child underwent diagnostic testing, which will inform counsel of the need to obtain the films.

The medical record collection efforts should not be limited to the child. The mother's OB/GYN records could reveal important information. Similarly, the parents' and siblings' medical records may be needed if a congenital abnormality is suggested as the cause of the event. The best approach is not to foreclose any avenues of potentially discoverable information.

Academic Records: Academic records are vital to the defense of the pediatric closed head injury case. Records from nursery school through college should be obtained through an academic authorization. Because privacy interests are implicated, attorneys should consult the Federal Education Rights Privacy Act, 20 U.S.C. 1232g.

Academic records are more than report cards — the entire academic file must be requested. The academic file will contain achievement and IQ test results, report cards, and notes from teachers and other school personnel. With head injuries, the potential for an impact on academic development and abilities is real. The child may be in a special needs class or require additional tutoring and monitoring. The school may have developed an Individual Education Plan (IEP) — a written description of the child's special education program — for the child. It can expose the significance of the injury's impact on the child's cognition and may also reveal names of additional fact witnesses to interview or possibly depose.

Pre-accident and post-accident report cards and achievement test results must be compared to evaluate the effects of the injury. For example, the left hemisphere of the brain controls language. An injury to this area will affect the child's performance in language arts and spelling. If the language arts grades of the child have suffered post-incident, but the brain injury is isolated to the right hemisphere, another explanation, possibly unrelated to the event, may exist to explain the drop in grades. Further, if the child's post-event grades have not suffered, the defense's damages case has improved significantly.

Yearbooks are a less obvious source of information, but they should be requested from middle-and high-school students. The yearbook will reveal the child's hobbies and extracurricular activities, while identifying friends and teachers who can be interviewed and deposed.

Employment Records: If the teenaged plaintiff works, his or her employment records should be obtained. These records often contain policies and procedures the teenager as employee had to review and consent to before working, demonstrating the teenager's ability to understand and appreciate important safety information. If the teenager was able to adhere to these policies, the defense can use the records to bolster an argument that the event did not significantly affect the child's cognitive functioning. Further, supervisors and co-workers are also viable candidates for an interview or deposition.

Depositions: Depositions of some witnesses will be needed. The record review should reveal potential deponents: mother, father, child, relatives, babysitter, friends, teachers, coaches, guidance counselors, family friends, neighbors, doctors, nurses, EMTs and pharmacists. However, once the witness has been identified, counsel should not rush to prepare the deposition notice.

Defense counsel should cautiously select deposition witnesses to avoid developing bad deposition testimony. The first question should be, “Do I need to depose this witness? Who is the witness and what type of information might they may possess?”

At first blush, treating physicians may be attractive deponent selections. However, their medical records may not contain sufficient facts to justify the time and expense associated with the deposition, or worse, contain bad facts plaintiff's counsel can develop on cross. To circumvent the problem, the defendant can have its defense expert rely on the record and testify about the records' salient findings. Fed.R.Evid. 803(4).

Additionally, defense counsel should consider whether plaintiff will subpoena the witness to testify at trial. In out-of-state plaintiff cases, the chances are remote a teacher, doctor, or employer will testify in court; thus, a deposition may not be needed at all. Likewise, if the testimony is potentially damaging, counsel can interview the witness before deciding whether a deposition is needed. For in-state plaintiffs, each treater may need to be deposed.

Finally, the witness should not be deposed merely for deposition's sake. Deposing the witness just to gain information is not wise — counsel must have a plan to obtain facts needed for causation and damages theories and for direct or cross-examination purposes at trial.

After deciding to depose the witness, counsel must devise a deposition strategy. Tailor your goals and tailor them to each witness; the witness cannot simply be deposed to find out what he or she knows. Several goals for the TBI deposition are:

• Obtain the child's pre-event history: The child's pre-incident medical, academic, and employment histories are needed to build alternative causation theories, to assess damages and to identify additional fact witnesses.
• Get to know the child's family history: The medical, academic and employment histories of the child's family members are needed from parents and grandparents. This testimony will reveal possible alternative explanations for the injury, and provide a forecast of academic and employment success, because a parent's academic success is a strong indicator of the level of education the child will obtain.
• Assess the child's jury appeal: The child must be deposed for several reasons. First, counsel can evaluate the child's potential jury impact. The deposition can provide the defense attorney — and in turn the client — with a different perspective of the injury beyond medical records. This view can assist with settlement strategy.
• Convert the physician into a defense witness: Not all pediatric TBI cases are defense nightmares. The pediatric brain is more resilient to trauma than the adult brain and can compensate for an injury. Post-event medical and academic records may reveal that the child has little or no physical or cognitive limitations. Physicians and teachers can be turned into “star” damages defense witnesses by testifying about the child's recovery and academic success post-incident.
• Assess the damages case: Each witness, including the child, can reveal important damages testimony. When deposing the child, the defense attorney needs to talk to him or her and learn what goes on in the child's life — from friends, to school, to pets, to hobbies. Counsel must have the witnesses describe the effects of the injury on the child.

Experts

Pediatric TBI cases are expert-intensive, but the defense attorney must consider the type, quality and quantity of experts. The threshold issue is the type of expert to retain, and the type of expert is influenced by the two phases of litigation: liability and damages.

In the liability phase, a pediatric neurologist must be retained, if possible, but at the least, a neurologist. A pediatric neurologist can better address the nuances of the developing child brain and its ability to compensate for an injury than can an adult neurologist. If the child underwent surgery, a neurosurgeon should be brought onto the defense team. Ideally, again, a pediatric neurosurgeon should be the choice. A radiologist — or better yet, a neuroradiologist — should examine the films to determine the cause of the injury. If a prescription or over-the-counter drug is blamed, a pharmacologist should make the defense expert team. In traditional trauma cases — those involving a blow to the head or injury resulting from a motor vehicle accident — accident reconstructionists and engineers may be needed to refute plaintiff's theory of how the accident occurred.

The damages phase is where the question of quantity comes up: Are defense experts needed in every field to match the experts plaintiff has retained? The answer is “yes,” but with some qualification, as there is no requirement that the defendant match every expert report served by the plaintiff. At times, a plaintiff's expert's methodology, reasoning, and conclusions will be acceptable to the defendant, as when the expert deems the child's injuries not severe or the value of the life care plan is conservative. Similarly, sometimes a defense expert cannot undermine his counterpart's conclusions without proving or bolstering the plaintiff's case. In these situations, the defendant has two options: 1) consult with the expert to prepare for cross-examination; or 2) have the expert prepare a report limited to challenging the plaintiff's methodology, interpretation of test results and conclusions, without providing the plaintiff a basis for recovery. For example, the defense economist can point out the inconsistencies with the plaintiff's report, yet not calculate a lost wage claim. This exercise must be done for each expert.

Testing

Several damages experts may need to be retained. One expert is the pediatric neuropsychologist. These experts evaluate the injury's impact on the areas and functions of the brain. They administer tests to evaluate the effects of a TBI on IQ, verbal and abstract/visual reasoning, quantative reasoning, short-term memory, vocabulary comprehension, recall, problem solving, processing speed and cognition. See generally Lezak: Neuropsychological Assessment (4th ed. 2004), for a comprehensive overview of the field of neuropsychology. The testing also evaluates depression, anxiety and malingering. The pediatric neuropsychologist also can examine academic records and administer an independent neuropsychology test, if required.

The defense expert should critically examine the plaintiff's report.The defense neuropsychologist should approach the plaintiff's report by asking several questions: 1) Has the plaintiff's expert administered age-appropriate and current versions of tests?; 2) Has the plaintiff's expert properly scored the tests? (A request for the plaintiff's expert's raw data is required); 3) Did environmental factors influence the test?; and 4) Did the plaintiff's expert omit tests that should have been administered?

After the defense neuropsychologist has undertaken this review, the expert and attorney have to determine whether an independent neuropsychological examination is needed. The decision will turn on whether the expert believes the plaintiff's neuropsychologist's testing and scoring were accurate, valid and proper, and a favorable result will be achieved by examining the child. In some jurisdictions, a plaintiff will be entitled to discover the expert's findings even if the neuropsychologist does not serve a report. In these jurisdictions, counsel must carefully weigh the decision to conduct an independent medical examination.

Another expert to consider retaining is a life-care planner. Life-care planners (LCPs) provide a comprehensive summary of the therapeutic modalities, education, attendant care services, medical follow-up, equipment needs, supplies, and medication for individuals with TBI. They serve as liaisons between the medical professional caring for the child and the third-party vendors who supply medical and other services the injured child needs. LCPs can be medical doctors, registered nurses, nurse- practitioners or rehabilitation professionals. The LCP reviews the medical records, interviews the patient and doctors and prepares a report or plan that outlines the services and equipment the plaintiff needs, with their purchase/replacement costs and replacement schedule.

If the plaintiff retains a LCP, the defendant must retain one also. The defense LCP should determine whether the plaintiff's plan is redundant, providing double and triple services. For example, the plaintiff LCP may provide for several yearly visits to a physiatrist, physical therapist and pediatrician, when the pediatrician alone can provide the services. Similarly, the defense expert can determine whether the plaintiff's expert has inflated the cost of services, or, better yet, has provided services not warranted by the medical records. Moreover, the plaintiff's plan may include medications taken before the event, for which plaintiff should not recover the cost from the defendant. Finally, counsel should not hesitate to consult with his or her pediatric neurologist to determine if the services are medically appropriate to the injury.

Additionally, the defense LCP can advise counsel if the plaintiff LCP's plan is conservative. In such a situation, the defense expert should consult for cross-examination purposes. A report should only be served when the plaintiff's expert has included redundant services and the cost of the defense LCP projected services is a floor the defense can accept.

A defendant may need to retain additional experts such as psychiatrists and economists. Depression is a common sequela of head trauma. Economists will be needed to calculate the cost of the life care plan to present value and to address a plaintiff's future-wage-loss claim. Again, the defense needs to be careful that the economist does not set a floor for a plaintiff verdict on damages.

The quality of your experts is the final consideraton. Retaining well-credentialed experts is highly important. The potential for a significant settlement or jury verdict means considerable effort must be made when investigating experts.

Quality also is dictated by the facts of the case. If the child underwent surgery, matching a defense neurologist against a plaintiff neurosurgeon could have a drastic impact at trial. Similarly, retaining a neuroradiologist to combat the plaintiff's neurologist's interpretation of the radiology films could favorably impact liability if the neuroradiologist can detect a brain abnormality the neurologist could not.As with all personal-injury cases, the well-traveled expert could undermine the defense when battling a phalanx of board certified neurologists on the plaintiff's side. Finally, with jury sympathy for the plaintiff being almost a foregone conclusion, the defense experts must be skilled jury communicators with an excellent “bed side manner” on the stand.

Conclusion

These discovery tools are by no means exhaustive, but are fairly consistent considerations when defending a pediatric TBI case. At each step, the discovery tools will reveal to the defense attorney new facts, liability theories and damages explanations that require additional witness investigation, depositions and expert review. Not until the case is settled can the defense attorney stop discovery in the pediatric TBI case.

Eric L. Probst, a member of this newsletter's Board of Editors, is counsel at Porzio Bromberg & Newman, PC, in Morristown, NJ.

Each year, millions of Americans, including some children, suffer non-penetrating, or closed, head injuries. When lawsuits result, they involve complex medical, academic, and legal issues. When the plaintiff is a child, the defense attorney faces numerous additional challenges in defending the matter. Certain discovery tools are necessary to simplify and defend the pediatric traumatic brain injury (TBI) lawsuit. These tools, although also used in traditional personal injury cases, take on added significance because of the age of the plaintiff and the nature of the injury.

The first step is to define the plaintiff. The term “pediatric” encompasses birth through adolescence. Age, however, cannot be the exclusive defining factor because the child's status as a student also plays a role. Thus, the discovery tools explained below apply to the injured college student as well. More important, counsel must be aware of factors — race, socioeconomic background, family relationships, education, state of residence, and health — besides the child's age that influence the child's development. The pediatric plaintiff must be treated by counsel as a complex individual whose development is shaped by these factors.

The next step is to define a “traumatic brain injury.” A TBI can be defined as an injury from any source that “disturbs or damages brain function.” Blackwell, Powers, Weed: Life Care Planning for Traumatic Brain Injury, 1 (1994). Brain injuries are caused by a variety of events: assaults, strokes, tumors, motor vehicle accidents, sporting event injuries, falls, workplace accidents, medical malpractice, and illicit drug use. While the cause of the injury is certainly important, the defense attorney also must understand and appreciate the impact of the injury on the child's brain function. To fully develop the defense liability and damage strategy, the attorney has to examine the child's pre-accident medical history and the injury's effect on the child's academic, cognitive, mental and emotional development. The defense attorney — and for that matter the plaintiff's attorney — must treat the pediatric-plaintiff as a unique individual and not stereotype the child's injury based upon other closed-head trauma cases the attorney has litigated.

Discovery Tools

Although the discovery tools here are not specific to the pediatric brain trauma case, the age of the child and the nature of the injury alter the focus of discovery requests.

Interrogatories: As in all personal injury cases, interrogatories are an invaluable first tool to discover the basic information about the plaintiff: age, address, schools attended, pediatrician's name, identities of treating doctors and hospitals, pharmacies used by the family, employers, and the family's medical, academic and employment history.

Medical Record Collection: The defense attorney must take a scorched-earth approach to medical record collection; obtain every medical record prepared about the child. There are several goals of medical-record collection: to develop alternative causation theories, to identify witnesses to depose, and to build a plan to minimize damages. Using Health Insurance Portability and Accountability Act (HIPAA)-compliant authorizations, the attorney must send requests to every pediatrician, family doctor, hospital and specialist who treated the child. (HIPAA, 42 U.S.C. ' 201 et seq.) Pediatrician records are an invaluable source of information for several reasons: 1) the records track the physical, emotional and mental development of the child from birth to the event; 2) the records contain reports from specialists, allowing the defense attorney to obtain records directly from those providers; 3) they document any post-accident sequelae and the child's academic performance; and 4) the records reveal whether the child underwent diagnostic testing, which will inform counsel of the need to obtain the films.

The medical record collection efforts should not be limited to the child. The mother's OB/GYN records could reveal important information. Similarly, the parents' and siblings' medical records may be needed if a congenital abnormality is suggested as the cause of the event. The best approach is not to foreclose any avenues of potentially discoverable information.

Academic Records: Academic records are vital to the defense of the pediatric closed head injury case. Records from nursery school through college should be obtained through an academic authorization. Because privacy interests are implicated, attorneys should consult the Federal Education Rights Privacy Act, 20 U.S.C. 1232g.

Academic records are more than report cards — the entire academic file must be requested. The academic file will contain achievement and IQ test results, report cards, and notes from teachers and other school personnel. With head injuries, the potential for an impact on academic development and abilities is real. The child may be in a special needs class or require additional tutoring and monitoring. The school may have developed an Individual Education Plan (IEP) — a written description of the child's special education program — for the child. It can expose the significance of the injury's impact on the child's cognition and may also reveal names of additional fact witnesses to interview or possibly depose.

Pre-accident and post-accident report cards and achievement test results must be compared to evaluate the effects of the injury. For example, the left hemisphere of the brain controls language. An injury to this area will affect the child's performance in language arts and spelling. If the language arts grades of the child have suffered post-incident, but the brain injury is isolated to the right hemisphere, another explanation, possibly unrelated to the event, may exist to explain the drop in grades. Further, if the child's post-event grades have not suffered, the defense's damages case has improved significantly.

Yearbooks are a less obvious source of information, but they should be requested from middle-and high-school students. The yearbook will reveal the child's hobbies and extracurricular activities, while identifying friends and teachers who can be interviewed and deposed.

Employment Records: If the teenaged plaintiff works, his or her employment records should be obtained. These records often contain policies and procedures the teenager as employee had to review and consent to before working, demonstrating the teenager's ability to understand and appreciate important safety information. If the teenager was able to adhere to these policies, the defense can use the records to bolster an argument that the event did not significantly affect the child's cognitive functioning. Further, supervisors and co-workers are also viable candidates for an interview or deposition.

Depositions: Depositions of some witnesses will be needed. The record review should reveal potential deponents: mother, father, child, relatives, babysitter, friends, teachers, coaches, guidance counselors, family friends, neighbors, doctors, nurses, EMTs and pharmacists. However, once the witness has been identified, counsel should not rush to prepare the deposition notice.

Defense counsel should cautiously select deposition witnesses to avoid developing bad deposition testimony. The first question should be, “Do I need to depose this witness? Who is the witness and what type of information might they may possess?”

At first blush, treating physicians may be attractive deponent selections. However, their medical records may not contain sufficient facts to justify the time and expense associated with the deposition, or worse, contain bad facts plaintiff's counsel can develop on cross. To circumvent the problem, the defendant can have its defense expert rely on the record and testify about the records' salient findings. Fed.R.Evid. 803(4).

Additionally, defense counsel should consider whether plaintiff will subpoena the witness to testify at trial. In out-of-state plaintiff cases, the chances are remote a teacher, doctor, or employer will testify in court; thus, a deposition may not be needed at all. Likewise, if the testimony is potentially damaging, counsel can interview the witness before deciding whether a deposition is needed. For in-state plaintiffs, each treater may need to be deposed.

Finally, the witness should not be deposed merely for deposition's sake. Deposing the witness just to gain information is not wise — counsel must have a plan to obtain facts needed for causation and damages theories and for direct or cross-examination purposes at trial.

After deciding to depose the witness, counsel must devise a deposition strategy. Tailor your goals and tailor them to each witness; the witness cannot simply be deposed to find out what he or she knows. Several goals for the TBI deposition are:

• Obtain the child's pre-event history: The child's pre-incident medical, academic, and employment histories are needed to build alternative causation theories, to assess damages and to identify additional fact witnesses.
• Get to know the child's family history: The medical, academic and employment histories of the child's family members are needed from parents and grandparents. This testimony will reveal possible alternative explanations for the injury, and provide a forecast of academic and employment success, because a parent's academic success is a strong indicator of the level of education the child will obtain.
• Assess the child's jury appeal: The child must be deposed for several reasons. First, counsel can evaluate the child's potential jury impact. The deposition can provide the defense attorney — and in turn the client — with a different perspective of the injury beyond medical records. This view can assist with settlement strategy.
• Convert the physician into a defense witness: Not all pediatric TBI cases are defense nightmares. The pediatric brain is more resilient to trauma than the adult brain and can compensate for an injury. Post-event medical and academic records may reveal that the child has little or no physical or cognitive limitations. Physicians and teachers can be turned into “star” damages defense witnesses by testifying about the child's recovery and academic success post-incident.
• Assess the damages case: Each witness, including the child, can reveal important damages testimony. When deposing the child, the defense attorney needs to talk to him or her and learn what goes on in the child's life — from friends, to school, to pets, to hobbies. Counsel must have the witnesses describe the effects of the injury on the child.

Experts

Pediatric TBI cases are expert-intensive, but the defense attorney must consider the type, quality and quantity of experts. The threshold issue is the type of expert to retain, and the type of expert is influenced by the two phases of litigation: liability and damages.

In the liability phase, a pediatric neurologist must be retained, if possible, but at the least, a neurologist. A pediatric neurologist can better address the nuances of the developing child brain and its ability to compensate for an injury than can an adult neurologist. If the child underwent surgery, a neurosurgeon should be brought onto the defense team. Ideally, again, a pediatric neurosurgeon should be the choice. A radiologist — or better yet, a neuroradiologist — should examine the films to determine the cause of the injury. If a prescription or over-the-counter drug is blamed, a pharmacologist should make the defense expert team. In traditional trauma cases — those involving a blow to the head or injury resulting from a motor vehicle accident — accident reconstructionists and engineers may be needed to refute plaintiff's theory of how the accident occurred.

The damages phase is where the question of quantity comes up: Are defense experts needed in every field to match the experts plaintiff has retained? The answer is “yes,” but with some qualification, as there is no requirement that the defendant match every expert report served by the plaintiff. At times, a plaintiff's expert's methodology, reasoning, and conclusions will be acceptable to the defendant, as when the expert deems the child's injuries not severe or the value of the life care plan is conservative. Similarly, sometimes a defense expert cannot undermine his counterpart's conclusions without proving or bolstering the plaintiff's case. In these situations, the defendant has two options: 1) consult with the expert to prepare for cross-examination; or 2) have the expert prepare a report limited to challenging the plaintiff's methodology, interpretation of test results and conclusions, without providing the plaintiff a basis for recovery. For example, the defense economist can point out the inconsistencies with the plaintiff's report, yet not calculate a lost wage claim. This exercise must be done for each expert.

Testing

Several damages experts may need to be retained. One expert is the pediatric neuropsychologist. These experts evaluate the injury's impact on the areas and functions of the brain. They administer tests to evaluate the effects of a TBI on IQ, verbal and abstract/visual reasoning, quantative reasoning, short-term memory, vocabulary comprehension, recall, problem solving, processing speed and cognition. See generally Lezak: Neuropsychological Assessment (4th ed. 2004), for a comprehensive overview of the field of neuropsychology. The testing also evaluates depression, anxiety and malingering. The pediatric neuropsychologist also can examine academic records and administer an independent neuropsychology test, if required.

The defense expert should critically examine the plaintiff's report.The defense neuropsychologist should approach the plaintiff's report by asking several questions: 1) Has the plaintiff's expert administered age-appropriate and current versions of tests?; 2) Has the plaintiff's expert properly scored the tests? (A request for the plaintiff's expert's raw data is required); 3) Did environmental factors influence the test?; and 4) Did the plaintiff's expert omit tests that should have been administered?

After the defense neuropsychologist has undertaken this review, the expert and attorney have to determine whether an independent neuropsychological examination is needed. The decision will turn on whether the expert believes the plaintiff's neuropsychologist's testing and scoring were accurate, valid and proper, and a favorable result will be achieved by examining the child. In some jurisdictions, a plaintiff will be entitled to discover the expert's findings even if the neuropsychologist does not serve a report. In these jurisdictions, counsel must carefully weigh the decision to conduct an independent medical examination.

Another expert to consider retaining is a life-care planner. Life-care planners (LCPs) provide a comprehensive summary of the therapeutic modalities, education, attendant care services, medical follow-up, equipment needs, supplies, and medication for individuals with TBI. They serve as liaisons between the medical professional caring for the child and the third-party vendors who supply medical and other services the injured child needs. LCPs can be medical doctors, registered nurses, nurse- practitioners or rehabilitation professionals. The LCP reviews the medical records, interviews the patient and doctors and prepares a report or plan that outlines the services and equipment the plaintiff needs, with their purchase/replacement costs and replacement schedule.

If the plaintiff retains a LCP, the defendant must retain one also. The defense LCP should determine whether the plaintiff's plan is redundant, providing double and triple services. For example, the plaintiff LCP may provide for several yearly visits to a physiatrist, physical therapist and pediatrician, when the pediatrician alone can provide the services. Similarly, the defense expert can determine whether the plaintiff's expert has inflated the cost of services, or, better yet, has provided services not warranted by the medical records. Moreover, the plaintiff's plan may include medications taken before the event, for which plaintiff should not recover the cost from the defendant. Finally, counsel should not hesitate to consult with his or her pediatric neurologist to determine if the services are medically appropriate to the injury.

Additionally, the defense LCP can advise counsel if the plaintiff LCP's plan is conservative. In such a situation, the defense expert should consult for cross-examination purposes. A report should only be served when the plaintiff's expert has included redundant services and the cost of the defense LCP projected services is a floor the defense can accept.

A defendant may need to retain additional experts such as psychiatrists and economists. Depression is a common sequela of head trauma. Economists will be needed to calculate the cost of the life care plan to present value and to address a plaintiff's future-wage-loss claim. Again, the defense needs to be careful that the economist does not set a floor for a plaintiff verdict on damages.

The quality of your experts is the final consideraton. Retaining well-credentialed experts is highly important. The potential for a significant settlement or jury verdict means considerable effort must be made when investigating experts.

Quality also is dictated by the facts of the case. If the child underwent surgery, matching a defense neurologist against a plaintiff neurosurgeon could have a drastic impact at trial. Similarly, retaining a neuroradiologist to combat the plaintiff's neurologist's interpretation of the radiology films could favorably impact liability if the neuroradiologist can detect a brain abnormality the neurologist could not.As with all personal-injury cases, the well-traveled expert could undermine the defense when battling a phalanx of board certified neurologists on the plaintiff's side. Finally, with jury sympathy for the plaintiff being almost a foregone conclusion, the defense experts must be skilled jury communicators with an excellent “bed side manner” on the stand.

Conclusion

These discovery tools are by no means exhaustive, but are fairly consistent considerations when defending a pediatric TBI case. At each step, the discovery tools will reveal to the defense attorney new facts, liability theories and damages explanations that require additional witness investigation, depositions and expert review. Not until the case is settled can the defense attorney stop discovery in the pediatric TBI case.

Eric L. Probst, a member of this newsletter's Board of Editors, is counsel at Porzio Bromberg & Newman, PC, in Morristown, NJ.