Tatum Wins $2M Jury Award in mTBI Case
Brian Steed Tatum of Tatum Law Firm PLLC recently won a jury award of $2 million for a client who suffered mild traumatic brain injury after being in a multi-vehicle collision. He provided the report below.
Tatum also presented a trial debrief for the Auto Torts & Premises Liability Section. The video of the debrief will be available on the Section page.
Amount: $2 million
Date of settlement: July 2022
Injuries alleged: Mild Traumatic Brain Injury
Case name: Cheryl Karanzalis vs. William Justin Brown, Timothy Robert Brown, and James Richard Delahunty
Court: Mecklenburg County Superior Court
Judge: Judge Eady Williams
Highest pre-trial offer: $325,000
Most helpful experts: Life Care Planner Robert Tremp from Deutsch, Tremp & Tremp; Neuropsychologist Dr. Jeffery Ewert, PhD.
Insurance carrier: Allstate
Attorney for plaintiff: Brian Tatum
Attorney(s) for defendant: Jeffrey Bolster and Melissa Monroe at Boster Roger, PC for defendant Delahunty. The Browns were pro se and never appeared.
Brief Facts: The case involved a multicar collision on I-77. The plaintiff was a back seat passenger in a VW. The VW was hit by a young man driving his father’s Cadillac. The Cadillac was rear-ended by an elderly gentleman in a Hyundai. The plaintiff and the driver of the VW testified that the second impact was the hardest of the two.
The plaintiff now has an mTBI. All imaging was normal.
The plaintiff was an LPN who fell and shattered her knee while lifting a patient. Thus, she was disabled and not working before the collision.
The young man driving the Cadillac did not have insurance. He has a felony DWI on his record and does not currently have a valid NC driver’s license. The clerk entered an entry of default against him and his father, who owned the Cadillac. The young man and his father did not appear at trial.
The elderly gentleman has dementia and uses a walker.
Pretrial: The defense spent a lot of time arguing that the discovery period expired four months after the COVID-19 pandemic began and they are prejudiced by everything not produced during the discovery period. I argued that all relevant evidence is prejudicial and that the question is whether it is fair or not. Also, every deposition in the case, including the plaintiffs, was taken after the defense’s alleged deadline. Moreover, we continually provided updated medical records throughout the case. However, this became the defense’s main objection throughout the trial.
We had an amended life care plan that was provided about a month before the trial. The previous life care plan was over a year old by the trial. The amended plan added about $815,000 for additional medications. I argued that the doctors prescribed the new medications over 120 days before the trial, so there should be no prejudice against the defense. However, the judge disagreed and excluded the amended life care plan. My main goal with the amended plan was to make the defense think twice about appealing the judgment.
Jury Selection: I scheduled a focus group on Saturday and another on Sunday to practice my voir dire and opening immediately before trial. Jury selection took about 2 1/2 days. I spent a lot of time addressing joint and several liability and how the jury does not apportion liability among the defendants.
Because both of my live experts had vacations planned over the July 4 holiday, I had to present them first although that was not my preferred order.
Here are the following witnesses who testified:
Life Care Planner – live. My first witness on Wednesday and Thursday was the life care planner, Robert Tremp from Deutsch, Tremp & Tremp. Mr. Tremp was mentored by Paul Deutsch, who is known as the “father of life care planning.” His plan was for around two million dollars, with about $1.8 million for attendant care. The defense spent most of their time arguing about the 8 hours a day of attendant care saying that this item was not prescribed by a doctor. I argued that doctors prescribe medication, but they do not normally prescribe attendant care. You cannot take a prescription for attendant care to CVS or Walgreens and get it filled.
I filed a MIL to keep out a draft life care plan used pre-litigation for settlement purposes. This draft plan was for only $120,000. Only one physician’s assistant had responded to the request for a foundation. The judge said that it could come into evidence. Thus, I made sure that I addressed it first on direct. (In the future, I’m going to label all such draft pre-lit plans as “DRAFT PLAN & FOR SETTLEMENT PURPOSES ONLY”).
The defense also tried to argue that the life care planner’s foundations were hearsay, some of the foundation signatures might have been forged, and that all the providers needed to testify about the foundations that they gave. Thus, we spent a lot of time going over the LCP’s process for obtaining the foundations.
We spent about a day going through each item of the plan.
Neuropsych – live. My next witness was the neuropsychologist, Dr. Jeffery Ewert, PhD. The doctor had a flight to Portugal the next day for vacation. We did not start Dr. Ewert until late Thursday. I argued that I should be able to have Dr. Ewert testify live and then use parts of his deposition to cover areas that we did not cover during live testimony. The judge disagreed and gave both sides 45 minutes to complete their questioning. Of course, the defense tried to burn up a lot of my time with objections. Luckily, I met with Dr. Ewert over lunch, and we boiled down the key elements of his testimony. Thus, despite the time constraints, I think that the testimony ended up being more effective.
State Trooper – live. The defense filed a motion in limine regarding the citation that the trooper gave to the elderly gentleman for failure to reduce speed. However, the judge did allow me to have the witness state that he determined based on the party admissions that the elderly gentleman failed to reduce his speed. He also stated that the speed limit in that area is 55mph.
Witness to the collision – video. We had a PI track down a witness to the collision who was driving right behind the elderly gentleman. The witness said that he and the elderly gentleman were both going about 70mph. The witness also said that the elderly gentleman appeared to be distracted because he never hit his brakes before the collision. However, the witness was able to avoid the collision despite his speed. This fit into one of my themes in closing: speed plus distraction equals disaster.
BNA Witnesses – video. We had five before and after witnesses.
ER Doctor – video. I then started playing the video depo of an Atrium Health ER doctor. The plaintiff was chosen for a brain injury study that Atrium Health was conducting at the time of the collision. This doctor never saw or treated the plaintiff; however, he was able to testify that the plaintiff was diagnosed with an mTBI in the ER and that such a diagnosis was required to be selected for the study. He also testified about the basics of mTBIs, such as that they do not show up on imaging and recovery times can vary even with the same mechanism of injury. We had problems halfway through the video, so we ended up playing it again a few days later. Thus, the jury heard more than once that mTBIs do not show up on imaging. The defense harped on the fact that he never actually treated the plaintiff.
Primary Care Doctor – video. She saw the plaintiff six days after the collision. She referred the plaintiff to a concussion center. I prepared a list of symptoms, and the primary care doctor testified that the plaintiff did not have those symptoms before the collision but did have them after. I had a blow-up of the list at trial and marked no for before and yes for after for each symptom. I then placed the blow-up in a location so that the jury could see it for the rest of the trial. The primary doctor gave us causation, but she said that she could not opine as to permanency because she is not a specialist.
Neuro Optometrist – video. He testified that the plaintiff had post-trauma vision syndrome after the collision but was able to recover to the normal range. He testified that the irregular eye movements were hard to fake. In closing, I used his testimony to argue that we had objective proof of a brain injury. Also, because the plaintiff’s PTVS got better, I argued that this meant that it was not from progressive dementia, etc.
Plaintiff’s Son – video. The plaintiff’s son testified by video because he was born with an immune deficiency, and the plaintiff did not want him to travel for the trial. His testimony was about two hours.
Plaintiff – live. I never had the plaintiff in the courtroom until her testimony at the end of the trial. Elizabeth Larrick, Esq. helped me prepare the plaintiff and her son for testifying. Because the plaintiff is an LPN, I knew that she would want to analyze all of her medical records, which would open the door for some defense cross tactics. Thus, from the beginning, I told her that I was not going to send her any of her records because I wanted her to focus on getting better.
I decided not to call the plaintiff’s treating neurologist, who also gave us causation and permanency. The problem is that the defense used an old article to confuse the neurologist about the “traditional view” regarding the recovery times for an mTBI. The article is Prognosis for Mild Traumatic Brain Injury, J Rehabil Med 2004; Suppl. 43: 84-105. It contains language stating that most people recover in 90 days and those who take longer may be due to “secondary gain.” In redirect, I used the new Track study: Recovery After Mild Traumatic Brain Injury in Patients Presenting to US Level I Trauma Centers, JAMA Neurol. 2019 Sep 1; 76 (9): 1049-1059.
I filed MIL to exclude this line of questioning, but the judge denied my motion. Thus, I dropped the neurologist’s testimony and prepared a pocket brief that a neuropsych can give a causation opinion under the Psychology Practices Act. Most of the medical records that we wanted to use were authenticated by the neurologist. So, when we dropped the neurologist testimony, we also dropped these records. We ended up putting zero medical records into evidence.
The defense’s closing was very deceptive. They took all of the evidence that they successfully had the judge exclude as prejudicial, and then argued: “Where is this missing evidence?” I guess this is why the defense loves last close so much.
I asked for around four million dollars, but the jury split it down the middle and awarded two million dollars.