Case Results
Gordon & Silber Obtains Extraordinary Result in Brain Damage Case May — 2007.
Type of Case: Auto Liability. Plaintiff claimed that as a result of a
rear-end collision, he suffered various injuries including: 1) a brain
injury which resulted in a) a loss of cognitive ability (i.e. fine motor
skills, short term memory, ability to learn new tasks) and b)
intermittent exotropia (inability to focus the eyes); and 2) a torn
rotator cuff. Plaintiff underwent eye surgery to fix the exotropia and
shoulder surgery to fix the rotator cuff. Plaintiff also underwent
months of cognitive therapy to address the deficits allegedly revealed
on neuro-psychological testing.
Venue: Federal Court, Southern District of New York.
Background Facts: Plaintiff was struck by the assured in the rear
while waiting to enter the interstate. Prior to the settlement, we
conceded liability to focus on the issue of damages -- specifically whether the alleged brain injuries were genuine, and if so, whether they
were caused by the accident. Plaintiff was a social studies teacher who
left his teaching position on the recommendation of his cognitive
therapist in lieu of a less stressful part time administrative position.
The plaintiff however, had many overlying medical issues, which we
argued complicated his claim that his problems were associated with the
car accident. In fact, at the time of his neuro-psychological testing,
he was taking 14 separate prescription medications, including several
whose side effects included impairment of the central nervous system.
Special Problems: Plaintiff's expert witnesses were his treating
physicians, who are generally trusted and seen as credible by jurors.
Plaintiff's varied injuries claims, required us to hire various experts,
including an orthopedist, an ophthalmologist, a neuro-radiologist and a
neuro-ophthalmologist.
Our Strategy: We attacked plaintiff's treating optometrist and
ophthalmologic surgeon's opinion that the car accident caused the
exotropia, using plaintiff's medical records which disputed their claim
there was an early onset of vision problems after the accident. We also
brought to light various other possible causes of his exotropia,
including cerebral vascular disease that appeared in a brain MRI,
various combinations of medications he was taking, as well as his
optometrist's prescription of unnecessary prisms in his glasses that
plaintiff's own surgeon conceded could have caused the exotropia through
eye strain. We also established that contrary to their belief,
plaintiff was not an accurate historian with respect to the accident or
his own medical history.
We attacked plaintiff's neuro-psychologist's opinion that her paper and
pencil testing revealed deficits caused by brain injury, by establishing
that plaintiff was taking large doses of pain killers, anti-convulsants
and anti-histamines at the time she initially tested him, which made her
results unreliable. We argued that the change in his scores when he was subsequently tested was not relevant given the changes in his medications. We also obtained an admission from plaintiff's neuro-psychologist that she was not fully aware of the medications he was taking and that contrary to her belief, the plaintiff was not an accurate historian with respect to how the accident had occurred or with respect to his medical history. We also were able to argue that the neuro-psychological testing itself contradicted plaintiff's ophthalmological claims since her notes failed to reveal that plaintiff had any problems focusing his eyes during the several hour test.
Result: Although the Court denied our Daubert motions to preclude plaintiff's experts from testifying at trial, the case was nevertheless settled solely for the perceived value of the shoulder injury and surgery. G&S thus, was successful in neutralizing the much more significant brain damage claims.
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