Inside Their Heads: Winning a Case for a Client Whose Head Injuries are Invisible May Not be Easy. But Some Massachusetts Lawyers Say They Know How to Do It

By Dick Dahl

Seven years ago, after Norfolk Superior Court jury awarded his client $2 million for head injuries she suffered after being struck by a K-Mart garage door, Boston plaintiffs' attorney Kenneth I. Kolpan proclaimed the verdict a watershed.

The judgment, he said at the time, was the first in which a jury had awarded civil damages to an injured person despite the absence of diagnostic medical evidence. That is, the normal technology for physically spotting head and brain injury--X-rays, CAT scans, EEG tests-failed to indicate that Susan Berberian of Framingham had suffered any injury.

Still, something obviously was wrong. Berberian complained of memory loss, headaches, disorientation, lack of concentration.

Based on Psychological tests, experts' validation of those tests, and "before and after"' testimony from people who knew Berberian prior to the accident and saw how it had changed her, Kolpan argued her case and won a verdict that was one of the biggest ever in the state for a head injury.

The fact that it was a closed head injury that had gone undetected by traditional medical testing made it all the more noteworthy and all the more unusual. But since then, the uncommon, has become much more customary.

In Massachusetts, Kolpan and several lawyers have staked out territory in this strange new world where tortious injuries are invisible-or nearly so- and winning some significant verdicts and settlements. And they're doing it armed with ammunition which, only a few years ago, would have been considered light-caliber.

Two months ago, for instance, a client of Boston personal-injury lawyer David P. Dwork won a $500,000 settlement for closed head injuries she suffered in a rear-end accident even though she drove away from the scene and required no medical attention-or so she thought- the day the accident happened.

"There was no evidence that she hit her head or even lost consciousness," says Dwork, a partner in the firm of Barron & Stadfeld.

When Gayle Vernon realized something was wrong-when she periodically lost track of time and experienced disorientation-she did seek medical treatment. But the tests, Dwork says, were negative. In the end, a 24-hour EEG produced "findings suggestive of seizure activity," Dwork says, but the bulk of the case was based on evidence of a less palpable nature.

The key to such cases, Dwork and Kolpan say, is the evidence that can be provided by neuropsychologists, who can document the plaintiffs cognitive deficits. Vemon's experts included the neuropsychologist, an orthopedist, a neurologist and a physiatrist (who provides information about future rehabilitation needs), The case settled during jury trial in Middlesex Superior Court.

Dwork concedes that testimony from experts like that is rather "soft" for a jury and he says he always seeks to substantiate it via endorsement from a witness who is a medical doctor. In the Vernon case, a clincher came late in the form of the 24-hour EEG (a test used to monitor a patient all day to determine moments of heightened electrical activity of the brain). But as another personal-injury lawyer who takes cases involving closed head injuries, Scott E. Charnas, says, "Many times, your neuropsychologist's testimony is the best you're going to get."

As these lawyers describe it, the advancement of closed head injuries as a tortious action is partially a result of improved technology. CAT scans and magnetic resonance imaging, or MRI, provide pictures of the brain and reveal injuries that once were undetectable. Meanwhile, neuropsychologists have found that where the damage can't be seen, it can still be determined on the basis of observable behavior, coupled with psychological testing. That is, if an injured person starts behaving in a certain way following a head injury, a neuropsychologist can determine that the injury occurred to a specific part of the brain.

But as Dwork says, the growth of closed-head-injury litigation is also a reflection of "a growing recognition within the bar that these claims are genuine and that the tools to substantiate them do exist."

Dwork says he thinks that many lawyers look at these plaintiffs, talk to them, and find it hard to believe they have a case. Indeed, he says, winning closed-head-injury cases isn't necessarily easy.

"Juries are skeptical enough about plaintiffs these days," he says, and when you have a person who looks normal and acts normal and who may be superior to the average juror in intelligence and there you are, asking for six figures or seven figures..."

But it's not necessarily a difficult as that may sound, he says.

Dwork still sounds surprised at the success of his first closed-head injury case five years ago. His client, an orthodontist, received a $275,000 judgment in Middlesex Superior Court after the defendant's insurance company placed $25,000 on the table. The man, says Dwork, still held his $200,000-a-year job, but complained of "subtle cognitive difficulties."

"He was still brilliant, "Dwork says. "He just wasn't as brilliant as he used to be."

Further exacerbating the difficulty involved in winning a closed-head-injury case, the lawyers say, is the fact that, as Charnas says, "a lot of these guys are really nasty people"-not the kinds of persons with which jurors may sympathize.

'There are good reasons for them to be churlish, he points out. Doctors have told them they can find nothing wrong with them at the same time that the plaintiff knows there's something wrong.

Charnas tells of one of his cases currently in suit involving a man who was hit in the head by a piece of heavy steel.

The man's wife told Charnas that his behavior changed dramatically after the accident. Once a kind and loving father, the man had started to yell at his children. He also had difficulty with activities, such as handling the family's finances, that he once performed.

"He came into the office, and I couldn't stand the guy," Charnas says. "He was whiny, tearful. And when the jury hears this guy, they're going to hate him."

As these lawyers characterize it, the brain is an organ that can literally bounce around inside one's cranium as the result of impact. The stresses of contraction and expansion can create injuries to specific, often microscopically small, portions of the brain.

The Massachusetts Head Injury Association, of which Kolpan is a Board member (he's also the co-chair of the National Head Injury Foundation's Trial Lawyers Conference), claims that traumatic head injury-that is, brain injury of a degenerative nature and caused by an external force-is "probably the number one public health problem in the U.S. today" with 200 out of every 100,000 persons suffering from it in one form or another.

While the MHIA and the plaintiffs' lawyers tout closed head injuries as a litigation area that's coming into its own, defense lawyers, of course, take a different tack.

Thomas E. Peisch, president of the Massachusetts Defense Lawyers Association, characterizes these cases as stemming from "an area of medicine that's not terribly well developed-which makes it difficult, legally, to get a handle on."

Peisch says he's seen medical reports that ascribe significant disability to personality changes alone or to "post-Traumatic stress."

"To the extent that they're not objectively quantifiable criteria, they're very difficult to analyze. And I think there are malingerers who take advantage of that."

Typically, he says, defense lawyers in these cases assiduously seek evidence of preexisting symptoms, of evidence that the malady the plaintiff complains about was already there.

Defense lawyers also usually focus on medical report, that indicate nothing, and of the imprecision, as they see it, of psychological tests. "Test results," says Peisch, "can be read to mean virtually anything."

Both sides agree, however, that closed-head-injury cases are inordinately expert-intensive. Dwork, for example, assumes that any such case will require $20,000 in out-of-pocket expenditures up front for experts and exhibits. That fact alone, he suggests, weeds many lawyers from this particular plaintiffs' field.

He lists several other requirements for putting together a winning closed-head injury case:

Preferably, "a credible and likable person" as plaintiffs difficult condition since "they're often angry."

*Complete medical records.

    *Treating doctors, rather than hired guns.

     *Good "before and after" witnesses.

'The tendency he sees in the defense of closed-head-injury cases, Dwork says, is that insurance companies will settle quickly if the plaintiff's case is strong, but they'll fight to the end in those with strong elements of "ambiguity."

"Because lay jurors see a person who looks fine and is probably making more money than they are, they can be difficult to convince. But these cases can be won and settled for substantial figures."

Charnas, meanwhile, says he believes that torts based on closed head injuries will expand with technology.

"I think," he says, "that in about five years the diagnostic tools will really catch up with the injury."

Published with permission of Massachusetts Lawyers Weekly.