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Basic Considerations in Proving Orthopedic, Traumatic Brain Injuries and Psychological Injuries in Auto Cases

John D. Winer, Esq., San Francisco, California


This article will set out some of the basic considerations in proving orthopaedic, traumatic brain injuries and psychological injuries in auto cases.


Learn the Anatomy.

The first step to proving any type of injury is understanding the injury. Before you can truly understand an injury, you must be familiar with human anatomy. To that end, the Anatomy Coloring Book by Winn Kapit/Lawrence M. Elson provides an excellent tool for learning anatomy. In addition, you may be able to attend an anatomy course at a local university and even participate in dissection of a cadaver. Once you have mastered anatomy, understanding the specifics of injuries will become much simpler.

Learn About the Specific Injury.

It is well worth your time and money to purchase orthopaedic text books which will go into great detail about any specific injury your client may have incurred. Before meeting with a doctor in a case, it will be helpful for you to learn as much information as you can about the details of the plaintiff’s injury.

Meeting With the Doctor.

Generally speaking, you want to meet with the treating doctor before he or she writes a report. You may have additional information which will be helpful to the doctor, and you may want to focus the doctor’s attention on certain aspects of your client’s injuries.

Particularly on the subject matter of prognosis, it is important that you make sure that the doctor understands that the legal standard for award of future damages for pain and suffering and treatment is medical probability and not possibility. It is also important that the doctor understands that this case is your client’s one opportunity to receive compensation for his or her injuries. If the doctor says it is only “possible” that the plaintiff, for instance, will require an operation in the future, then the plaintiff will not be compensated and reimbursed for the expenses of the surgery if it turns out that a “possibility” turned into an actual operation.

Proving Orthopaedic Injuries at Trial.

Make sure the jury understands the anatomy before the doctor gives his opinions.

One of the most important elements of preparation of a doctor before trial is the exercise of making sure that the doctor can explain the anatomy involved in plaintiff’s injury in simple enough terms for the jury to understand. The doctor may be used to teaching, but her or she will be used to teaching medical students and not jurors. There is a big difference. One of the greatest challenges for you and the doctor will be to simplify the nature of the anatomy and the injury for the jury.

At the trial, use anatomical models.

Anatomical models of particular parts of the body are great tools to simplify and demonstrate injuries to a jury. Doctors are used to explaining injuries to patients by the use of models and the jurors are always interested in anatomical models because they will be able to relate the information to their own bodies.

Use artist-made diagrams of the specific injury.

There are medical illustrators who specialize in preparing large color drawings of the plaintiff’s specific injury. These drawings are particularly helpful in cases involving tears and fractures. An illustrator can prepare the illustration by reviewing some of the doctor’s records and examining the x-rays. If you are going to use such an illustration, it is critical that when the illustration is completed, you send it to the treating or expert doctor for review to make sure that it is accurate. You must lay a foundation through the treating or expert doctor before the illustration will be allowed into evidence unless the defense attorney stipulates otherwise.

Use of x-rays and MRIs.

If you have a case with a positive x-ray or MRI, it is important to have the doctor put the x-ray or MRI up on a machine and demonstrate the injury to the jury. However, nine times out of ten, the jurors will not be able to see the same things on the x-ray or the MRI that the doctor sees. Thus, this is an important aspect of testimony because it helps verify the plaintiff’s injuries; however, it will not help the jury understand the plaintiff’s injuries. Therefore, the use of x-rays or MRIs should be accompanied with a medical illustration.


Focus on the Impact.

Regardless of the severity of the outcome of a traumatic brain injury, your chances of success in an auto case will be greatly increased if you can prove that there was a significant impact to the plaintiff’s head.

Proof of impact begins with maintaining the vehicle in which the plaintiff was injured in the exact same condition it was in at the time of the accident, including seat position. A mechanical engineer or a bio-mechanical engineer will be able to determine a great deal about the forces involved in the head injury by measuring the distance between plaintiff’s head and the object that he or she hit within the car at the time of impact until the time of rest.

Further, any evidence that would be important to an accident reconstructionist including skid marks and damage to both vehicles should be documented and preserved as much as possible.

Examine the Ambulance and Emergency Room Records and Talk to Witnesses.

Plaintiff’s chances of proving a traumatic brain injury will be greatly increased if you can establish a period of alteration of consciousness or amnesia at the time of the accident, just before the accident or after the accident. The best evidence of alteration of consciousness will be found in the paramedic, ambulance or emergency room records.

The plaintiff, of course, may be the worst witness on the issue of loss of consciousness because frequently he or she may not even realize that there was a period of unconsciousness.

Thus, the records and the testimony of witnesses who were involved in the accident or witnessed the accident will become particularly important.

Hiring the Right Experts.

Generally speaking, from a plaintiff’s point of view, in a mild traumatic brain injury case, neurologists may not be the best experts despite the fact that there will usually be a neurologist involved in the treatment of your client.

The problem with neurologists in mild, or even sometimes moderate traumatic brain injury cases, is that when they make the diagnosis of TBI or post concussive syndrome, they usually do it by history alone. The actual in-office testing done by a neurologist generally tests only for major focal defects, i.e., a defect in a particular area of the brain so great that it effects the function of a particular area of the patient’s body. Although neurologists can be very useful if there is a positive MRI, CAT scan or EEG, in most mild traumatic brain injury cases, these tests are negative.

The radiographic tests are usually negative because a patient with mild traumatic brain injury suffers from a diffuse injury to the brain which will not show up on neurological exam or radiographic exam. Therefore, in a mild traumatic brain injury case, neurologists may not be very useful.

A far more important witness in this type of case is a neuropsychologist. Neuropsychologists are Ph.D. psychologists who specialize in the diagnosis and treatment of brain injuries. The tests performed by neuropsychologists are designed to pick up the type of subtle disruptions to brain function found in mild traumatic brain injuries.

However, at trial, the testimony of a defense neurologist may be able to trump the testimony of a neuropsychologist on credentials alone; therefore, one should also consider hiring a physiatrist who is an M.D., specializing in the treatment of brain injuries and severe spinal cord injuries. Physiatrists are generally more sympathetic to a plaintiff’s case since they get stuck treating the patients that neurologists can find nothing wrong with. Also, physiatrists can perform tests of their own which will be more subtle in nature than the tests of a neurologist.

Collect All Birth, School, Employment and Medical Records of the Plaintiff.

In a traumatic brain injury case, it is important to establish as best as possible, the baseline of the plaintiff before the accident. Normally, there will not have been neuropsychological tests given just prior to the accident; therefore, you must rely on the records which are available. This actually starts with the birth record of the plaintiff. The defense may attempt to claim that plaintiff incurred some type of neurological deficit during childbirth or early in childhood. Thus, if these records are available, they should be reviewed and presented to the jury to rule out this possibility for the plaintiff’s symptoms.

Next, school records from kindergarten on will be important and may actually provide some helpful test results. Remember, traumatic brain injury rarely results in the loss of actual IQ; however, the neuropsychological testing may reveal deficits in areas such as math processing which will be evidence of a brain injury in somebody who, for instance, received all A’s in geometry and algebra.

Work records are also important and may establish good frontal lobe functioning pre-accident if the plaintiff was a good, solid worker and stayed out of trouble.

Obviously, medical records will be important. If the diagnosis of post concussive syndrome or traumatic brain injury is made before plaintiff hires an attorney, this will add a great deal of credibility to the case.


When trying the case and preparing it for trial, have your expert witness point out to the jury that we all, as human beings, function in three different realms: the physical, the emotional and the cognitive. Draw a VENN Diagram for the jurors which demonstrates the overlap of these three areas of function. Then have your expert point out to the jurors that in the case of a traumatic brain injury, all three of these areas of function will be affected. The plaintiff will probably have physical symptoms such as headaches; emotional symptoms such as irritability; and cognitive symptoms such as loss of memory and confusion. Then point out to the jury that all three of these areas of function affect each other. If someone has headaches, they are more likely to be irritable. If somebody is irritable, they are going to become more easily confused. If someone is more easily confused, they will have increased physical symptoms such as headaches and stomachaches. If someone has increased headaches and stomachaches for a long period of time, they may become depressed. If they become depressed, they will have problems with memory and on and on and on. This is sometimes referred to as a dysfunctional loop.

Thus, when the defense expert tries to state that the plaintiff’s symptoms are all psychological, you and your expert can point to the fact that psychological or emotional symptoms are typical and an important part of the post concussive syndrome.

Further, in a case in which the defense does not hire a neuropsychologist, and goes to trial with just a neurologist, you can establish that they have hired an expert who only focuses on one of the three key areas of brain injury; that is, the physical. Your expert, the neuropsychologist, focuses on the cognitive problems; if you have a psychologist, he or she will focus on the psychological issues; and if you have a physiatrist, their scope of treatment really focuses on all three aspects of closed head injuries.


Proving the Unseen Injury.

It has been our experience that jurors are extremely distrustful of psychological injuries because they usually cannot see the injury.

Recognizing this idea, it is obvious that a plaintiff’s attorney must overcome the juror’s sense of distrust to obtain a successful verdict.

The juror’s distrust can be overcome by preparing and trying the case in such a manner as to ensure that the jurors will one, believe your client, and two, believe your experts.

How to Insure That the Jurors Will Believe Plaintiff.

First of all, explain to your client in no uncertain terms that they will lose the case unless they tell the truth. Most plaintiffs get in trouble in these cases because they deny any past emotional problems. Explain to the client that it is good for their case if they had emotional problems in the past. (See Section 5(E).)

Further, make sure that you order all of the plaintiff’s records, including work, school, psychiatric and non-psychiatric medical records before the plaintiff’s deposition is taken, before the defense medical exam and, if it all possible, before the plaintiff’s expert’s examination. Although the plaintiff should not be shown these records, plaintiff’s attorney must go over them carefully and explain to the plaintiff what is contained within the records.

In any case in which the plaintiff’s credibility will be attacked (which is almost every case), plaintiff’s attorney should obtain psychological testing.

The plaintiff should not be present at the trial except for when he or she testifies. The expert witness must explain to the jury why the plaintiff is not present, i.e., it would be harmful for him or her to listen to the psychological testimony.

Finally, the plaintiff should not testify until the expert witness has explained to the jury why the plaintiff may not appear so appealing and why the plaintiff may do things like exaggerate his or her injuries. Explain that this is a symptom of his or her mental illness.

How to Make Sure the Jurors Will Believe Your Expert(s).

The first step is for the plaintiff’s attorney to hire an expert who is believable. Meet with any expert you retain before the plaintiff is examined so that you may judge their credibility.

Secondly, generally speaking, the plaintiff’s attorney should hire an expert who does not testify too often or an expert who has a lot of experience, but testifies fairly equally for both sides. Either of these traits would increase the expert’s believability. It has been our experience that experts who come across to the jury as somewhat cynical gain credibility. The defense will generally attack plaintiff’s expert as gullible and simply believing everything that the plaintiff tells him or her. It is important that the plaintiff’s expert testifies that they did not blindly believe everything that the plaintiff told them but, rather, made a real effort at attempting to ascertain whether the plaintiff is being truthful and accurate. This is one of the important distinctions between an expert witness and a treating therapist. As we all know, the accuracy of statements and the truthfulness of facts are critical for litigation purposes. However, it does not generally affect the treatment process. For treatment purposes, it is the patient’s perception that is critical, not the absolute accuracy of the patient’s statements. This is one of the reasons why it is generally advisable to hire somebody other than the treating therapist to testify in a case (although some thought should be given to putting on the testimony of the expert and the treating therapist).

The plaintiff’s expert will be even more believable if he or she makes an independent investigation of the validity of the plaintiff’s claim. We generally have our experts contact family members, friends, work associates, employers and treating therapists and doctors.

Further, the expert must read every single deposition and record in the case. He or she will be extremely vulnerable to a collateral attack if this very expensive step is not taken.

On voir dire, ask the jurors if they are willing to hold the testimony of a psychiatrist or psychologist in the same esteem as they would the testimony of an orthopaedist or other medical doctor.

When the expert takes the stand, spend some time having him or her explain to the jury the scientific basis for psychology and the expert’s conclusions in the case. Further, have the expert explain the basic principles of psychology to the jury.

Also, call lay people who knew the plaintiff before and after the subject trauma to have them describe the differences that they notice in the plaintiff. This testimony is very believable to jurors and helps them overcome their natural distrust of psychologists and psychiatrists. This testimony will bolster the opinion of the experts.

Most significantly, in serious cases, plaintiff’s attorney should almost never order a report from a treating or expert therapist. The only way to insure your expert’s credibility is to wait as long as possible for him or her to render an opinion on the record. The obvious downside of this approach is that the case will be nearly impossible to settle pre-litigation or at an early stage of litigation, and the plaintiff will probably receive a poor arbitration result; however, it has always been our feeling that these cases are so hard to settle early anyway, that the potential upside is greatly overpowered by the substantial downside.

We only request reports from psychological experts when plaintiff has a relatively small psychological injury (for instance, a three-month fear of driving with absolutely no other residuals), or cases in which the defense attorney or adjuster assures us that the case has a substantial chance of settling for a significant amount of money with a report. Even under those circumstances, we are hesitant to order reports since they will more often than not destroy the credibility of the plaintiff and the plaintiff’s expert.

There Can Be No More Serious Injury Than an Injury to the Human Mind.

Before handling a significant psychological injury case, or at least before trying such a case, the plaintiff’s attorney must believe in his or her heart that a psychological injury is worse than almost any physical injury.

A person can suffer the most severe physical injury, including burn injuries and paraplegia, and still live a fulfilled life as long as they can maintain their peace of mind. Once a person loses his or her peace of mind, life becomes a living hell.

People with severe psychological injuries have lost God’s most precious gift, peace of mind. This means that they are swamped with self-doubt, anxiety and depression. This will affect every aspect of their existence. Life, at best, will be about survival, stripped of any enjoyment.

Loss of peace of mind is the ultimate injury and the proof of this is the fact that it is people that have lost their peace of mind that try to end their lives, not people who suffer severe physical injuries.

On top of this, psychological injuries are the hardest injuries to treat. A broken arm can be operated on in one day. A heart attack can be managed by a short stay in the hospital. However, a psychological injury takes years and many times a lifetime to treat successfully and may require several years of hospitalization. Sometimes psychological injuries are untreatable.

In addition, psychological injuries are the most difficult to cure. Once a mind has been injured, it is

early impossible for it to return to “normal,” even with successful treatment. A mind cannot be replaced like many other parts of the body. They make artificial limbs but do not make artificial minds.

The Plaintiff’s Attorney must Prove That the Plaintiff Was Especially Vulnerable to the Subject Trauma. It has been our experience that the only way to achieve a satisfactory result in a psychological injury case is for the plaintiff’s attorney to establish that the plaintiff was psychologically vulnerable before the subject trauma occurred. This cuts against the basic instincts of plaintiff’s and plaintiff’s attorneys who, for damages purposes, want the plaintiff to be as well put together as possible before the subject trauma; however, to understand this principle, we must understand how jurors think.

Jurors will generally not believe that a single trauma can make a perfectly healthy person mentally ill. Jurors have a need to believe in their own invulnerability. This is a deep seeded need that is more likely than not unconscious. Jurors do not want to believe that they would become mentally ill if they were subjected to the same trauma as the plaintiff.

Recognizing this fact, we must take great care as plaintiffs’ attorneys to explain to the jurors why the plaintiff is different than they are. The plaintiff is different because we all have our own peculiar vulnerabilities that result from the natural traumas which occur in life, especially childhood.

This is not to say that, as plaintiff’s attorney, you want to prove that the plaintiff was dysfunctional before the subject trauma. On the other hand, the ideal plaintiff in a psychological injury case is a person with deep seeded vulnerabilities, but was able to overcome those vulnerabilities and become a functional person pre-trauma.

Generally speaking, the more objectively severe the subject trauma, the less important it is for the plaintiff to be extraordinarily vulnerable. On the other hand, a jury will never believe that an objectively minor trauma could have caused a complete breakdown in a plaintiff unless the plaintiff was very vulnerable and probably on the verge of being dysfunctional before the trauma.

The plaintiff’s attorney should go out of his or her way to establish the vulnerability and then spend a great deal of time in closing argument explaining to the jury the importance of BAJI 14.65 (the pre-existing condition instruction) and how it applies to the plaintiff’s case. It should be explained that the law protects the psychologically weak as well as the strong.

The cracked vase analogy works very well in psychological injury cases. Have the jury picture a vase sitting on a table (in fact, you should draw this for the jurors). Explain that one day a breeze comes along and knocks over the vase. The vase does not break, but develops a crack in it. Despite the fact that the vase is cracked, it is still capable of holding water and therefore it is a functional, useful vase that can be utilized to hold water and flowers. This vase, in this condition, represents the plaintiff before the subject trauma. Then a second breeze comes along and knocks over the vase. This time, because of the pre-existing crack, the vase shatters and is no longer functional. The plaintiff is now like that shattered vase. Under BAJI 14.65, the plaintiff is entitled to recover for all of the damage which he or she received as a result of the trauma even though, like the vase, he or she had a crack or weakness in his or her personality. The plaintiff can recover even if the plaintiff would have received no injury if there was not a pre-existing crack.

There are two basic types of psychological injury accident cases. First of all, there are the cases in which the accident itself causes the psychological injury. In these cases, it is extraordinarily important to establish the pre-accident vulnerability.

Secondly, there are the cases in which the accident itself does not cause the psychological injury; however, the physical injury which the plaintiff suffers in the accident then eventually leads to a psychological breakdown. For instance, a case in which the plaintiff develops a facial scar which he or she cannot live with or a case in which a plaintiff develops a chronic back problem and can no longer work, which sets off a depression.

In the second type of case, it is still helpful if the plaintiff’s attorney can prove a pre-accident vulnerability; however, it is probably not essential. The post-accident physical injury becomes the vulnerability in and of itself. In other words, the post-accident physical injury attacks the plaintiff’s self-esteem and pre-existing defense mechanisms and leaves the plaintiff in a position where he or she is vulnerable to the psychological ill effects that commonly follow severe physical injuries.

Finally, in the heinous psychological injury cases such as the child molestation or the therapist/patient sexual abuse cases, it is almost always in the best interests of the plaintiff’s case for the plaintiff to be as vulnerable as possible before the subject trauma, even if the plaintiff was dysfunctional. The reason for this is that jurors in the sex abuse cases do not separate their anger at the defendant from their award of compensatory damages. The more vulnerable the plaintiff was before the trauma, the more angry the jury will become at the defendant. Secondly, the jurors are so disgusted with the defendant’s conduct that they tend to not listen to the defense experts and the defense side of the case and will give the plaintiff all of the benefits of doubt that are necessary to win substantial damages.

The Psychodynamic Mechanism of an Injury must Be Made Clear to a Jury.

This section of the article interrelates with the last because before one can develop a theory of the mechanism of an injury, one must understand the plaintiff’s vulnerabilities.

There is a direct relationship between the principle of psychological mechanism and the legal principle of causation. The plaintiff’s expert will testify with reasonable medical certainty that the subject trauma caused the plaintiff’s psychological injury. Just before or after the expert gives this testimony, it is critical that he or she explain to the jury how the trauma caused the injury. He or she will do this by establishing the psychodynamic mechanism of the injury.

The basic principle is as follows: the unique characteristics of the plaintiff combined with the unique characteristics of the subject trauma to overwhelm the plaintiff’s previously functional psychological defense mechanisms thereby setting in motion the psychological injury.

It must be established that the trauma had a special significance to the plaintiff, either because it had symbolic importance, it replicated an earlier trauma, it reactivated repressed, unacceptable childhood memories or some other reason.

We spend approximately one to two hours of direct examination of the expert at trial going through the basic principles of psychology and relating them to the psychodynamic mechanism of the plaintiff’ injury.

Your expert should explain the psychological concepts of superego, ego and id. Superego is the intellectual “higher thinking” part of our mind. Id represents our animal instincts. Ego is like a referee which attempts to strike a balance between the superego and the id and determines what gets buried in our unconscious and what we deal with on an immediate basis. The key here is that ego equals referee.

Next, the expert should explain the concept of the unconscious. He or she should explain that we all have an unconscious and that it is as much a part of us as our fingers and toes. They should explain that the unconscious is like a dark closet which stores a great deal of information and memories which we cannot consciously get in touch with. The key here is that unconscious equals dark closet. We all have unacceptable thoughts that we store in our dark closet.

Then the expert should explain the concept of personalities; that we all have personalities and that all of our personalities are different. Just because we have a personality “style” does not mean that we have a mental disorder.

Then, the expert should explain the concept of defense mechanisms. Discuss the common defense mechanisms of denial and repression and have the expert explain how we use these defense mechanisms as coping strategies which help us survive life. The point should be made that defense mechanisms act as the lock on the door of the unconscious.

Then the expert should explain the concept of fertile soil. This is the technical psychiatric term for what we would call vulnerability. At this point, the expert observes that we all have different vulnerabilities to various traumas and that this is a well-recognized fact in psychiatry and psychology. The key point here is that fertile soil equals vulnerability.

The expert should also explain the meaning of the term “trauma” in psychology. Most importantly, have the expert explain that people experience trauma on an individual basis; what may be a major trauma to one person would be a minor trauma to another.

The expert must also explain the concept of “breaking point.” The breaking point is the point up to which our defense mechanisms will work to successfully lock unacceptable thoughts into our unconscious.

Finally, have your expert explain that trauma can, and does, break the lock on the door of the unconscious by making us reach our breaking point and causing all of the unacceptable thoughts which have been successfully contained in our unconscious by viable defense mechanisms to flood our consciousness and cause us to develop a mental disorder.

If this construct is properly utilized, and if the expert witness has a plausible explanation for why this particular plaintiff is vulnerable and why this trauma was significant to the plaintiff, you will win your psychological injury case on the issue of causation.

It is never enough for the expert to explain causation by stating that plaintiff was like “A” before the accident and now is like “B;” therefore, the accident must have caused the injury. An explanation such as this will not overcome the jurors’ sense of invulnerability, the jurors’ suspiciousness of psychological injury cases and the jurors’ need to have psychological principles make common sense.

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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