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Arguing Damages Flowing Sexual Torts and Mild Traumatic Brain Injuries

John D. Winer, San Francisco

I. Arguing Damages Stemming From Mild Traumatic Brain Injuries

A. Non-Radiographic Injuries

For the purposes of this article, we are going to assume that the brain injury in question does not involve a lesion detectable on a CAT scan, MRI or any other radiographic device. Rather, we are dealing with brain injuries that have been diagnosed from neuropsychological testing and from signs and symptoms on physical and neuropsychological evaluation.

B. Similarities to Arguments In Sexual Abuse Cases

Many of the same damage themes that work in arguments in sexual abuse cases (see above) will work in traumatic brain injury cases. Particularly, in the right case the loss of peace of mind and the loss of hope arguments can be very powerful.

1. In mild head injury cases, plaintiff is aware of deterioration.

In particular, in a “mild” traumatic brain injury case, you can argue that in some ways plaintiff is worse off with a mild traumatic brain injury than he or she would be with a severe head injury because, unlike somebody who is left in a vegetative state, plaintiff is fully aware of his or her traumatically induced deficiencies. The loss of peace of mind that comes from knowing that your brain functioning has been diminished is a tremendous injury in and of itself. We all pride ourselves in our intelligence, our ability to think and our ability to figure things out. Once those abilities have been diminished by somebody else’s fault, our self-image and sense of security is naturally decreased. This increases our anxiety and fearfulness and often causes useless rumination and a sense of defeat.

C. The Brain is Central to Human Function.

In arguing damages in a traumatic brain injury case, we must help the jury understand, one, the importance of the brain to human functioning and how even a slight altering of brain function can dramatically change a person’s life. Further, we must help the jury understand the relationship between the cognitive, emotional and physical aspects of human beings.

D. The Irreplaceability of the Human Brain: They Do Not Make Artificial Brains

Closing argument should include a discussion of the uniqueness and specialness of the human brain. The most complicated, expensive computers do not even come within a million miles of replicating the human brain. The same argument can be used in brain injury cases as is used in psychological injury cases; that is, that they make artificial limbs but they do not make artificial brains. Once a person has lost brain function for more than 18 months, it likely will not return and cannot be replaced.

E. Minimal Loss of Brain Function Can Dramatically Change a Person

In a case where a person has lost, lets say ten percent of brain function or intelligence, it should be argued that ten percent is often the difference between the extraordinary human being and the ordinary human being. Jonas Salk with ten percent less brain function would never have had the great successes which benefited humanity to such a degree.

F. The Uniqueness of Our Brain

The uniqueness of the brain should be a focus of the closing argument. Without a brain, we would be nothing and we could do nothing. We were born with a brain that allowed us to achieve, experience and enjoy certain things in life. When our brain is injured, our lives are forever altered and no one has the right to do that to us. Once someone injures our brain, the brain cells cannot be replaced and the brain function frequently cannot return. Therefore, we will never be the same person, we will never be able to maintain the course, achieve and experience the same things and enjoy life in the same way.

G. Arguing the Loss of Physical, Emotional and Cognitive Functioning that Flows from Brain Injury

When somebody’s brain is injured, far more than the brain is affected. Every bit of a person’s physical, cognitive and emotional functioning is affected by a brain injury. An injury to the brain can cause a cognitive injury such as difficulty thinking, processing and concentrating. However, this cognitive injury does not stand alone, it will frequently lead to a physical injury like headaches as the person strains to attempt to concentrate. It may also lead to emotional injury such as despair and depression as the person is unable to concentrate and think right. The despair will lead to hopelessness which could lead to a loss of vitality, which will lead to further cognitive injuries and on and on and on.

H. “Mild” Brain Injury can Lead to “Severe” Consequences

Because the brain is so central to our overall functioning, there is no such thing as an “isolated” brain injury. This is also why the term “mild” traumatic brain injury is really a misnomer. A mild traumatic brain injury can lead to severe consequences. An injury which affects cognitive functioning in a minimal way can lead to severe emotional difficulties if the person cannot adjust to the cognitive insult. Studies have shown that so-called mild brain injuries lead to severe consequences such as permanent disability or loss of cognitive and emotional functioning and, sometimes, suicide.

I. Individual Reaction to Brain Injury

Everybody reacts to a trauma to the brain differently. Since the defendant takes his victim as he finds him, he is not entitled to a victim whose post-brain injury symptomatology falls within some “norm.” There is a known “miserable minority” of people who suffer permanent severe consequences from mild traumatic brain injuries.

J. Conclusion

If in your argument, you accentuate the objective evidence of brain trauma, you explain to the jury the uniqueness of the brain and help the jury understand that an injury to the brain affects our total functioning, then with the right set of circumstances and a credible plaintiff, you should be able to receive an excellent general damage award.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit for more information or for a free online consultation.

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