Scarlett Law Group - Publications

By Randall H. Scarlett, Esq. And Robert W. Johnson

Consider the following two case scenarios:

A 17-year-old young lady is driving home from her evening class at a local college when a car operated by defendant swerves across the center divider and hits her straight on. She is medevacked to the closest trauma facility whereupon a craniotomy is performed in order to release the pressure resulting from multiple subdural hematomas. Additionally, as a result of spinal cord injury, plaintiff is rendered quadriplegic. The catastrophic injuries are apparent to all. Plaintiff's resultant brain damage renders her a functional five-year-old in mental development. She is fed through a gastrostomy, and will require attendant care the rest of her life.

In the second case scenario, plaintiff is a 42-year-old working attorney, mother of three. She is stopped before a crosswalk allowing an elderly pedestrian to cross the street with her walker when she is suddenly and unexpectedly rear-ended. She keeps her foot on the brake in order her vehicle is not pushed into the crosswalk thereby striking the pedestrian. The force of impact appears to have been fairly minor. There is approximately $1,200 damage done to plaintiff's car. She does not lose consciousness. Other than a diagnosed cervical "strain", CT scans and other neurologic testing are without adverse finding. Within several months, however, plaintiff's family notices a marked change. Plaintiff's difficulty with attention and concentration make legal work impossible. Her life spirals in denial, confusion and discomposure. Finally, a treating health care provider concedes that plaintiff sustained a so-called "mild" traumatic brain injury.

Both of the above case scenarios are based upon the actual facts involved in two separate lawsuits. Unfortunately, as is experienced by most survivors of traumatic brain injury, neither of the above two plaintiffs received adequate compensation for their injury because their lawyers were not experienced enough to present a legitimate and appropriate claim for damages.

In a case involving catastrophic injury, the failure to obtain adequate compensation will deprive the plaintiff of the very funds he/she may need in order to survive. Often times, and especially where the plaintiff's injury dictates on-going medical care, the future economic loss may be staggering. The presentation of such damage figures becomes an art unto itself. Jury alienation is always a concern, even where such damage figures are reduced to present value.

Contrast the catastrophic injury case with a "mild" TBI case. Often overlooked or misunderstood by counsel, a case involving so-called "mild" traumatic brain injury, with corresponding cognitive deficits, will cause a devastating impact on the vocational abilities of the plaintiff, not to mention the impairment to quality of life.

In the past, brain injuries were classified as mild, moderate or severe based upon a misguided "duration of loss of consciousness". Today, responsible lawyers reject such classification. The use of the words "mild" and “moderate” to describe a brain injury is ridiculous. There is nothing "mild" or “moderate” about a permanent brain injury.

Perplexity and distractibility are among the most common problems associated with brain injury. Any cognitive deficit, including impairment in attention and concentration, will have a devastating impact on an individual's ability to work and perform properly on the job. Necessarily, the quality of life is deeply affected.

The presentation of damage claims in cases such as those discussed above carry with them common pre-requisites. First, the case requires counsel to believe in his/her client, and to understand the profound impairment resulting from brain injury. Counsel must believe in his/her client because if not, no jury in the world will be convinced that cognitive impairments result in significant disability.

Secondly, plaintiff's lawyer must face reality. In a catastrophic case, inappropriate presentation of the necessarily huge future care costs will absolutely overwhelm and alienate a jury. Combine an inappropriate presentation of damages with a difficult liability scenario and a defense verdict, or at best, a compromised verdict, can be predicted.

Likewise, the failure on the part of plaintiff's lawyer, or the experts, to properly relate the profound affects of even "mild" brain injury, will almost certainly assure jury rejection of wage loss or future wage loss claims in the so-called "mild" case.

Third, proper presentation of future care expenses, wage losses, both past and future, and other economic loss in these cases necessarily requires the assistance of a forensic economist in addition to life care planners and vocational rehabilitation specialists, as the particular facts dictate. In fact, after the liability hurdles have been overcome, it is submitted that the most important expert you will present on behalf of your plaintiff is the forensic economist.

This article explores the usefulness of the forensic economist in the context of a catastrophic case.

The case involves a nine-year-old child who sustained catastrophic injuries including severe brain damage and quadriplegia when, at the age of eight months old, defendants failed to diagnose H-Flue meningitis. As could be expected, life expectancy was an issue in the case. Assume, however, that the jury concluded that plaintiff, with proper future medical care, would have a reasonably normal expected remaining lifetime. The obvious problem: How could plaintiff's lawyer present the staggering economic loss figures without losing the jury to the numbers? A proper approach by a qualified forensic economist is an absolute necessity.

As you are likely aware, medical care cost growth rates have historically been "beyond rationalization". As the attached chart establishes, infra., each year, 1935 through 1995, hospital room and related services alone increased between a "low" of 4.9% to an unbelievable "high" of 11.1%. (See Exhibit 1).

As can also be anticipated in a case such as the one at bar, is defendant's argument that many, if not all, future care costs can be eliminated through utilization of federal or state funded medical care, including, institutionalization. As is more fully set forth below, use of the "responsibility and accountability" theme is essential to overcoming this argument.

The first task of your forensic economist is to calculate and quantify the dollar value (how much?) of the accountability link. Let us assume (see Exhibit 2) that the life care planner has concluded that this plaintiff's cost of care (in today" dollars) is $106,000 per year through age 45 and then, when her parents die, hr cost will increase to $303,000 per year. The total future lifetime costs, assuming a below historically based medical inflation rate of 5% is over $166,000,000!!! When reduced to present case value (using an historic U.S. Government bond rate) the cost is still $14,000,000.

The economist's role now, is to assist the jury by giving them an inflation framework that will help them get the proper perspective of the numbers. For example, Exhibit 3, plots the rapid and sustained increase in the cost of $100 of medical care. The jury will see that, in just the last 45 years medical costs have exploded over $1,500. The chart visually tells the story and validates the juror's common experience. In fact, have your economist ask the jurors the following question. "Will all of the jurors who are paying less today than last year, for their prescriptions, please raise your hands." When the jurors look around and see no one else's hands go up, medical inflation has been validated. Have your economist use this and other life-experience examples of the effects of inflation in their daily lives. This will allow the jury to properly frame and put in perspective the plaintiff's large damages.

The second task of your forensic economist, is to empower the jury with the knowledge of why the defense strategy of "passing the buck" on accountability, is wrong. This can be accomplished with three steps.

First is to have your forensic economist re-state that his/her role, once responsibility has been decided, is to calculate what the dollar value of the defendants' fiscal accountability. This will cement and reinforce the foundational link between responsibility and accountability.

Second is when the defense raises such issues as having a state or federally funded medical care programs pay for the plaintiff's future care, have your forensic economist state the following: "Since the taxpayers are not the ones responsible for the plaintiff's profound injuries, why should the taxpayers shoulder the financial burden and assume the debts of the defendants, the true responsible party."

Third, the forensic economist should inform the jury that, under current federal law, if the plaintiff is awarded more than $2,000, the plaintiff is usually and totally ineligible for state and federal funded medical care programs.

Proper utilization of the forensic economist will not only assist the jury with a proper understanding of the damages incurred by your client, but will also reinforce the accountability and responsibility theme which you should have running throughout the presentation of your client's case.

See, Life Expectancy of the Catastrophically Injured Child: Handling the Defense Expert,
Consumer Attorneys of California Forum, December, 1995, by Scarlett, Randall H. and Fabbro, Steven A.

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