Evan N. Saltzman

Key Points:

• Traumatic brain injuries are becoming ever more prevalent in the legal industry.
• Plaintiff attorneys are increasingly using traumatic brain injury claims in order to transform routine cases, with minor damages, into complex cases with high demands. 
• A recent celebrity trial highlights prominent strategies defending against such claims. 

---

In the recent trial of celebrity actress Gwyneth Paltrow, the plaintiff claimed a traumatic brain injury after the two collided on a ski slope in Utah. The plaintiff, Terry Sanderson, a 76-year-old retired optometrist, initially sought $3.1 million in damages. Sanderson utilized a neuropsychologist, who testified about the effect of the collision on Sanderson’s mental health, and a radiologist, who testified that Sanderson “deteriorated” after the collision and stopped doing many of the activities he had engaged in prior to the incident. In an attempt to influence the jury emotionally, the plaintiff also relied on the testimony of friends and family.

Importantly, the defense demonstrated a strong approach to combating a questionable traumatic brain injury claim. The defense team relied upon a radiologist, who testified that the plaintiff’s diminished cognitive abilities were due to aging—that began well before the skiing accident occurred. Additionally, the defense also focused on the plaintiff’s quality of life following the accident. 

An essential defense strategy in combating a traumatic brain injury claim is to show a baseline of the plaintiff’s quality of life before and after the accident. In this case, the defense showed post-accident pictures of the plaintiff riding a camel in Morocco, hiking to Machu Picchu in Peru, and taking a cross-country European trip. Since the defense prevailed on liability in this matter, we are not able to analyze how the jury perceived the arguments for and against the traumatic brain injury claim via damages. However, with the all the national attention, the legal profession got an inside look at prominent strategies for proving and defending against traumatic brain injury claims in a high-stakes trial. 

With the major attention on traumatic brain injuries in the NFL and other professional sports, these type of injuries are increasingly in the spotlight in everyday life. Recently, there was national coverage of American soldiers suffering from traumatic brain injuries. As the focus on brain injuries becomes more prevalent and moves into the national spotlight, it is essential for defense attorneys to understand the impact they will have on future lawsuits, including the impact of brain injuries on jurists and damages rewards. 

It is no coincidence that, as the spotlight on traumatic brain injuries continues to expand, they are becoming more prevalent in the legal field. In fact, anyone working in the legal field has likely noticed the large increase in traumatic brain injury claims over the last several years. These claims are emerging in routine slip-and-fall, motor vehicle accident, premises liability, and construction accident cases. By claiming a traumatic brain injury, plaintiffs’ attorneys are taking routine cases, often with minor injuries, and attempting to turn them into complex cases with large demands. We are continuously seeing attempts to frame routine cognitive decline due to aging as a traumatic brain injury among older plaintiffs. 

While diagnosing and understanding traumatic brain injuries continues to be an evolving science, their ambiguous nature makes it very difficult for defense attorneys to defend against such claims. Unlike a broken bone, a traumatic brain injury is often subjective, with no hardline rules on how to define it. In the future, defense attorneys should look for clearer definitions of traumatic brain injuries and better methods of evaluating the severity of these claims. In the meantime, as we saw in the Paltrow trial, relying on expert testimony and comparing quality of life before and after the accident remain essential traumatic brain injury defense strategies. 

*Evan is an associate in our Philadelphia, Pennsylvania, office. He can be reached at 215.575.2779 or ensaltzman@mdwcg.com.

 

 

_{Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}