Host Sean Harris talks with Michigan attorney, Steve Gursten from Michigan Auto Law, about traumatic brain injury cases and tips for winning these cases.

Sean: Hello and welcome to Civilly Speaking, OAJ’s monthly podcast on practical and timely legal issues, I’m your host Sean Harris. Our guest today is Steve Gursten from Michigan and our topic today is traumatic brain injuries in our client’s cases. Steve thanks very much for joining us here on Civilly Speaking.

Steve: Oh, it’s my pleasure. Thanks for having me.

Sean: So when we hear as lawyers we hear the word or the term TBI there are some of us that have an initial reaction against taking those cases, why is that?

Steve: They’re hard and we lose a lot of them that’s why. I decided I’m going to finish your sentence with the initial reaction is most lawyers scatter.

Sean: Right.

Steve: Because you know what, they do, there’s a lot of really good lawyers out there that just have this office policy that they don’t want to handle the so called mild TBI case because they are hard and you know whether it’s that medical classification of mild that has absolutely nothing to do with the actual life impact of it or the fact that for most of us these are difficult cases cause there the invisible injury case where let’s face it, the client looks normally pretty good and talks pretty well and does not look seriously hurt or  just the fact that defense lawyers and plaintiff adjusters are much more aggressive on defending these cases and you know these days, especially when you start talking about the seventy some insurance companies that use some form of colossus that settlements, the median average for settlements for these cases are lower and they’re more aggressively defended a lot of lawyers just say I’ll do something else. I don’t want to handle these cases they are too hard.

Sean: Well and you mentioned the classification of mild which  is almost the default I feel like, but my understanding is that there are levels or classifications that mean something very different than what the defense tells us.

Steve: Yes, so remember so mild is just the initial classification they give that’s based really on loss of consciousness, but even today it’s funny I just finished with a blog about the new military guidelines that they are using, that they revised the 2011 guidelines where they’re actually saying you know it’s not loss of consciousness because all the new science with brain injuries is showing that loss of consciousness is not the best indicator that you want to look instead on the severity of initial brain function impairment so what that means is post traumatic amnesia, confusion, other symptoms of brain injury matter far more than any initial curative loss of consciousness and that’s why the US military just revised its guidelines because all the new science that is coming out right now is dealing more with inflammation and the irreversible damage that happens to our brains and the brain tissue from this inflammation, the apoptosis the excitatory chemicals that are being released in our brains that caused this irreversible damage to our brains and causes cell death so that’s the new thinking in the science and the medicine of brain injury today and unfortunately the problem we have of course is we are dealing with neurologists in Ohio and Michigan who are still calling these cases post-concussion syndrome and were trained forty years ago on the medicine and a lot of them just aren’t up on current treatment protocols and how to treat these people and help them.

Sean: And of course words matter. It’s interesting you mention post-concussive syndrome, PCS, which we see a lot, traumatic brain injury, we’ve got brain damage. What words do you use to describe these injuries?

Steve: I’ve done the focus groups and AAJ has done the focus groups. I always like organic brain damage. That has been shown to be the most effective. Post-concussion syndrome doesn’t really mean much or if anything it has a much more conservative vent and honestly just from lots of focus groups in my own trials, once you start getting into the weeds and start talking about axons and dendrites, and  you know really getting deep into the medical terms, you just start to lose jurors. We have to always remember that the typical juror has a fifth grade education level sitting on our juries, that this stuff is pretty dense and the medicine is tough and you know what I always tell lawyers that, because I speak at a lot of brain injury seminars and I’m actually going to be the incoming president of the AAJ Traumatic Brian Injury group next year so I invite all your listeners to join their group because it’s a fantastic resource for staying up on the most current literature, but the big mistake a lot of brain injury lawyers make is they get to deep in the literature and you know if you’ve ever been to a brain injury seminar at the end of the day your eyes are glossed over and what I always try to remind my audience is hey if you think this is tough and this is dense and tough to absorb, imagine what it’s like for your jurors. So you always want to try and simplify it as much as you can. I think the lawyers who spend three days going over neuropsychological testing and the various tests themselves, start getting really deep in the journals they’re just, you know the problem is confusion plays the defense , the longer these trials go, plays to the defense, the more complicated they are, the more it plays to the defense and when jurors get confused or tired they just throw up their hands and your much more likely to get a poor verdict or a defense verdict so you really want to try and simplify them and frankly calling something brain damage and trying to simplify these cases with your experts and the medicine is the best advice I can give.

Sean: I think I shared with you before, but as one anecdote I literally in a case when I called and spoke with the insurance adjuster initially and they were kind of getting the basic information about what happened and when I mentioned, when I termed it brain damage I mean you could hear the adjusters ears perk up and before you knew it they had referred it to a higher level adjuster just by using that term.

Steve: Yes, and don’t forget the words we say do matter and even with our judges. Every time they’d say the word that you’re here for a car accident case, every time you can correct them and call it a wreck or a crash instead sure enough by the second day of trial or hopefully when the judge starts talking to the jury he’s calling it a crash and a wreck instead of a car accident. You’ve got to really be careful with the words you choose and organic brain damage I think is very powerful. Hey Sean can I correct something I said you a moment ago by the way?

Sean: Sure.

Steve: So you know I did casually mention colossus early on and I just want to be clear because I do speak a lot on colossus and insurance claim software that TBI cases are not part of colossus, but what colossus does do, is it tracks the median or average settlements of what cases are going for in your geographic region, but colossus they’ll always have an exception for TBI. So I just wanted to clarify that for your listeners.

Sean: Oh sure and so when you say it’s not part of TBI that means if there’s brain damage as part of the case colossus is not used to evaluate?

Steve: Right, the seventy some insurance companies that use colossus or some form of colossus actually then gives the adjuster more authority and discretion in those cases, whereas let’s say with a fractured leg case they have very little discretion out of that range of value of what the computer software spits out at that them.

Sean: That’s fascinating.

Steve: So it’s important and that leads me to just the second point I really want to impress on your listeners, which is the way you influence colossus and the way you do get bigger settlements in brain injury cases, is you, the lawyer because while we really can’t change what the computer evaluation is for these injuries all of these claim software programs do have a separate category for who you are and they track the lawyers and if they know you’re a lawyer and if you’re firm hasn’t been to trial and tried a case in ten years and they’re starting to get really good at  knowing your MO and if your firm always is shooting for the moon and then a week before a trial you crash and you’re taking a fraction of what you were demanding throughout the whole case. They’re getting really good at tracking this stuff and frankly there is very little you can do to influence the evaluation of the injury, but you can influence the evaluation of you and I’ve been fortunate enough to get a lot of bad faith excess verdicts so I’ve had a lot of exposure and I’ve worked with some experts in this area and I’ll give an example, farmers, which a lot of your listeners will have cases with. You can actually change and increase the value of that settlement by up to four times more if they know that you’re a lawyer whose going to try a case and if you go in and get good verdicts. So you know the best advice, you know one of the best things you can do is don’t be like everybody else and settle these cases short, take them to trial. Even if you lose you’re still increasing the value of all your other cases the next time around because they know you will go in a try these cases and that’s important because brain injury cases are expensive a typical case could be forty to eighty thousand dollars. They have to know that you’re a lawyer who’s serious about taking these cases to trial.

Sean: And speaking of insurance adjusters and settlement discussions, what kinds of approaches or other factors do you use to get higher settlement offers?

Steve: This applies to every case, not just brain injury, but you have to be different from everybody else. You have to do something that sets you apart from everybody else because you know frankly when you go to these defense seminars or you talk to these adjusters they don’t think very much about the plaintiffs’ bar these days and the reality is there are too many lawyers out there that are kind of winging it, that are cheap on their cases, that aren’t investing, that really don’t have the medical sophistication, that aren’t trying these cases. So everything you can do that makes you different and stands out is important. So for example, investing in their cases, showing they will be willing to spend the money, having the demonstrative aids, making sure your case that your client has gone to their specialist. In a brain injury case that for example let’s say that they gotten the diffuse tensor imaging or the PET scan, the Positron Emission Tomography of the brain and when you go to mediation you’ve got color blow ups of the test results and they know that you’ve got your trial exhibits ready, they know that you’re hiring experts that you’re not being cheap. I do whatever I can to really kind of throw them off. So one of the things I talked about when I was really honored to speak before the OAJ at your last seminar was I talked about the fact that in a lot of my brain injury cases I use a plaintiff independent medical examiner and it drives these defense lawyers crazy because they’ve never seen it before.

Sean: And I find this idea fascinating because it seems like they’re the advantages are many.

Steve: You’re listener could literally add millions of dollars to their cases, to the value of these cases by having these plaintiff IME’s on them and again it certainly makes your case stand out from the two hundred others that this risk evaluation committee has to assess. I just love it on so many levels. It’s you know we know the problem with brain injury is in a lot of places whether it’s Ohio or Michigan, it’s tough to find doctors that are really up on the literature and that are really strong advocates. For me I love that it’s very difficult for the defense lawyer to attack the credibility and bias of the plaintiff IME without completely undermining their own defense IME’s at the same time and then for trial cause I have taken a number, in fact all my last, probably my last fifteen verdicts have all been with plaintiff IME’s. What I found time and time again is that essentially at the end of the day if you have the plaintiff IME that the jury tends to cancel out the doctor you hired and selected, but also the doctors that they hired and selected and what does that leave you with? That leaves you with basically the treating doctors and the jury embracing their opinions entirely and normally that’s going to work out pretty good for us right? If you don’t have the plaintiff IME and I, do a focus group tomorrow and you can test this yourself, it’s amazing to see. If you don’t have that plaintiff IME what happens is, it’s just human psychology that the jury still tends to reject the defense IME’s because they do get the sense that these are company doctors these are hired gons, but they also tend to back off from the strongest opinions of the treating doctors and that’s how you end up with these compromised verdicts that are just really not satisfying and that don’t do our clients justice. So with a plaintiff IME they tend to really adopt the treating doctors opinions as a whole in their entirety and you end up with much bigger verdicts so I love it and just also back to colossus for a second because most cases do settle. Remember what you’re doing is you’re giving that adjuster ammunition now because they can input the plaintiff IME report into programs like colossus. Colossus does not distinguish between a treating doctor and a plaintiff IME so now you can put in, they can input these huge value drivers like permanency, residual impairments, prognosis, all these really strong opinions and all the sudden now the value of your case is two or three times more than what it was and it gives the claims adjuster cover to get those cases settled for more money and write you that bigger check so I’m a big fan.

Sean: Talk to us about how you would handle this, a judge saying, now Mr. Gursten you already have doctors right, the treating doctors as your experts why do you, this is duplicative testimony, we don’t have to have a plaintiff’s IME come in and say the same thing. How do you respond to that?

Steve: Try and make sure it’s not the exact specialty as the treating doctors you would have testify…

Sean: Okay.

Steve: or make sure that they have such a different background and are opining on things that are very different than what the treating doctors would be. So for example one of the doctors I used was the head of RIM for many years, Rehab Institute of Michigan. In fact I think he was the head for over twenty years so he’s able to opine on the long term consequence and sequelae of brain injury when let’s say we’re in Oakland County Michigan and we’re around this race track of rocket trial docket and we’re trying out case within sixteen months of the date of the incident. Another doctor I love to use is a trauma epidemiologist. I will guarantee none of the treating doctors are trauma epidemiologists, but what they can do is they can again talk about what the medicine says, long term consequences of these injuries and they work really well when you’re combining that with let’s say a life care planner. Another doctor I use is a trauma surgeon, you know again, none of my treating doctors are trauma surgeons, but because he was the head of Detroit Receiving for a couple decades, again, he is in a special position to talk about things that lets say the treating doctors who are really more confined within their specialty and by the way that’s a whole other issue that we have in our cases which is we have to be careful of the myopic way that doctors and lawyers tend to view these cases where they separate them into very narrow injuries so the orthopedic only wants to talk about the bone fracture, the neurologist only ends up talking about the headache, you know and on and on you know the TMJ doctor only talks about TMJ, the shoulder rotator cuff surgeon only talks about the rotator cuff surgery he did and the total person gets lost the combination or cumulative effect of these injuries gets lost so what I love about a trauma surgeon is now you start getting into these entirely, into the whole person and into this, what really has been this huge, for me, this huge way to increase the value of my cases because we stop referring to them a,b,c, and d injuries and what we start talking about is the effect of the person as a whole and how when you have multiple injuries problems go up by multiplication not by addition and you start getting into things like chronic pain syndrome and all the sudden these cases become much more devastating and juries are much more able to understand them because they understand that chronic pain, the way these injuries effect and influence and make and aggravate each other and in a churnable deterioration of downward vicious cycle that we see so often with these injuries it’s the reason why people get worse not better so when those defense doctors that you always deal with in Ohio or are saying your clients are malingering, no they’re not, that’s not what the medicine shows, that’s not real life. People aren’t malingering when they’re getting worse over time instead of better, which is what the defense always says. What happens is they are deteriorating and that’s what happens in real life when you’ve got multiple injuries because let’s face it our clients are hit by a truck or they’re hit by a car and they do have these multiple injuries so you want someone whose going to look at a total picture of the client and that’s what I’m looking for when I select my plaintiff IME and that’s why it’s not duplicative and I don’t have those issues with the judges.

Sean: Well and you mentioned earlier of the juries understanding and particularly in brain damage cases. I would imagine that the kind of cultural awareness of through the concussion issues in professional sports that the burden of convincing jurors that this is a quote real injury has been lessoned somewhat.

Steve: Yes, it’s definitely getting easier, it’s unfortunate consequence of the tragedies of what we’ve seen overseas with the war on terror and our soldiers coming back from Iraq and Afghanistan, but it’s also as we have much more awareness from professional football and hockey and if you have a parent, any parent including you, my kids play lacrosse. You have now these parent consent and information forms that you have to sign at the beginning of the school year and if you look at these forms, what we’re doing is we’re doing a good job of educating our jury pools and making people more aware because it’s a page and a half of basically information on concussion and possible brain injury and some really important things in there like even if your son or daughter did not lose consciousness they may still have a serious brain injury, these are the things you want to look out for, be aware that if you take them to an emergency room and they’re not diagnosed with a brain injury that doesn’t mean that they don’t have one. You still need to be aware and look for these symptoms and make sure that they get back to a hospital or to your family doctor right away. So it is starting to seep into the consciousness of our jury pools and it’s about time. It’s starting to really reflect the true seriousness of these injuries.

Sean: Steve any tips on demonstrating to a jury just how these brain damage injuries effect your clients lives?

Steve: Yes, to start with you know remember I said most lawyers scatter and don’t want to handle these cases because they call them these invisible injury cases right? So don’t make them invisible and I really believe that you should try to have something that is objective in every case especially in a brain injury case where let’s face it the defense play book is to imply or even just flat our accuse someone of malingering or exaggeration. So the science is there, DTI has been admitted in federal courts and I think I have twenty-nine different orders now from across the country admitting these both in Daubert and Fried jurisdictions and in federal court. Again, would recommend that all your listeners join the TBI group from AAJ so they can have access to these orders, but you want to make sure that you’re, basically you’re doing three things in every case TBI or not. One that it’s subjective. You always want to have the jury being able in deliberations to point at something that has been marked as an exhibit that they can look at and say that’s why we’re here. This is the injury. This is why we’re here. That’s really important because let’s face it, we as plaintiff lawyers, especially in the beginning of these cases we’re the least credible people in that courtroom after three or four decades of insurance company propaganda and some really bad movies and TV shows about us and unfortunately what I think some of our own brothers and sisters in the plaintiffs’ bar have done to lower and demean our profession and our standing in the eyes of our juries. So you don’t want it to be what we say, you want it to be something that is subjective and that they can see with their own eyes. So that’s one. Number two, and this sounds silly but we really as a group we do a really terrible job of explaining why this is important. Whether it’s a back injury case or a neck injury case or brain injury or brain damage case you really want to explain why this matters and I will give you a quick story if that’s okay to kind of illustrate that.

Sean: Yeah.

Steve: I was very fortunate, you know I always think of Malcolm Gladwell’s book the Outliers. You know you have to be very lucky on time and place, not just who you are but that you come around at the right time and it can really change your career and your success and I was very fortunate because I started practicing law in 1995, which was right in the midst of the All State MIST, Minimal Impact Soft Tissue, where they were making zero offers and forcing lawyers to go try a lot of cases and that’s how I cut my teeth. Those first couple years I must have tried over twenty cases, really, not good cases, not easy cases and it was a great training ground. Anyways I was very fortunate I won some very, very tough soft tissue cases. Actually ends up winning about my first ten or twelve cases in a row and then I got to what was at the time by far the most serious injury case I’d ever had as a baby lawyer and it was a case where my client had been diagnosed with a moderate brain injury and you know maybe it was the fact that I had been trying MIST cases my whole career up until then and all the cases that none of the lawyers in my office wanted to try, they kept giving them to me to go try, but I was so excited to have this real serious injury case and I just remember I spent so much time on the medicine and just talking about how serious moderate brain damage is and how serious these injuries are and on the best case I ever tried, I got no cost and I lost, I got zero and the reason was I never was able to explain to a jury why this injury to my client was important, how it changed his life because my client at that time was a lawn mower man, that’s what he did he cut grass, and before the crash he basically cut grass then would come home and drink beer and watch TV, didn’t really have any friends and after the crash he basically cut grass and drank beer and watched TV and I say this now because there are so many things I did wrong in that case and I wish I could go back and have a do over because that’s all on me. I failed to show why this was important, I failed to show the impact on the person. If I could do it all over again, it’s a cop out to say that he had the same life before versus after. I feel like there’s so many things I could have done now to show why this was important and why this mattered and I didn’t. You know in similar cases now I hire a psychodrama test to go to my client’s house and spend the day with them so after eight hours they’re giving me a list of twenty or thirty different ways that their life is different and how this injury is important. I am never going to make that mistake again, but I did then. So on the best case I ever had I got zero and I learned the hard way. I guess the long story short Sean is you want to show that it’s subjective, you want to show that it’s important and then third which is tied to important, you have to show lifestyle impact and why it matters to your client because it’s not enough to talk about disability or pain since those are intangible terms. You have to make them tangible and the way you flush them out and make them real for people on a jury is by showing the ten different ways that your clients life is different now than it was before and what you want to show is not only is it different, but it is significantly different and the things that really mattered to them, that made life worth living was that really the important thing that they looked forward to they can’t do or how its changed  because that makes the injuries real and it makes it tangible and now you have loss and loss then can be valued and then it can be compensated and that’s what juries are supposed to do. They are supposed to balance the losses and harms our client has suffered with money through compensation and I just think when that’s a great formula to reach even the most conservative jurors who otherwise would be really turned off if you’re just talking about these fudgy intangible things like pain and suffering. So those are the three things I would recommend. You show that it’s subjective, you show that it’s important, and you show lifestyle impact and if you do those three things that’s a very powerful three step road map to winning these cases, winning all our cases.

Sean: Well Steve that’s fantastic. We appreciate it very much. Thanks for joining us here on Civilly Speaking.

Steve: Well it was my pleasure. Thanks for having me.