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Virginia Lawyers Weekly: Waiting to file suit aids in $1.7M settlement

Jun 13, 2013 Article Source: http://valawyersweekly.com/2013/05/16/waiting-to-file-suit-aids-in-1-7m-settlement/

Thirteen years after a serious accident, a 20-year-old college student reached a $1.7 million settlement in a suit over her mild traumatic brain injury.

Seven years old at the time of the accident, the plaintiff (whose name and other identifying information remain confidential) was riding in the front seat when a truck ran nearly head-on into the car being driven by her father.

Although the case involves the largest known personal injury settlement in Clarke County, proving damages against the truck driver presented a series of challenges to Fairfax attorneys Peter S.
Everett and Rob Stoney, who represented the plaintiff.

The girl suffered severe bruising and a head injury, but she was not diagnosed with a
concussion at the ER and maintained good grades in school, matriculating to a four-year
college – evidence the defense said showed she suffered no lasting cognitive consequences.

But Everett had time on his side.

He made the strategic decision to wait more than a decade to file suit in order to follow the girl’s progress over the years, which enabled her legal team to develop a true understanding of the extent of her injuries.

“The number one lesson from this case is that it is extremely dangerous to consider settling a traumatic brain injury case for a child,” Everett said. Lawyers should “work with the treating physicians and understand the cognitive and emotional challenges that the child will face as he or she matures. And really develop relationships with witnesses – family, friends and teachers – to understand what your client is enduring before you even think about litigating or settling.”

Struggles documented over time

The plaintiff was riding in the front seat as her father drove his Toyota Corolla on March 15, 1999 on Route 340 in Clarke County.

A truck driver coming in the opposite direction failed to notice the car in front of him slowing to make a left turn and braked too late. Jackknifing into the plaintiff’s lane of traffic, the truck hit the Corolla not quite head on.

The plaintiff was left dangling unconscious over a seven to ten foot ravine on the side of the road, held in place only by her seatbelt. Rescued by a witness to the accident, she was taken to the hospital.

At the ER, she was diagnosed with a broken nose and suffered major bruising to her eyes and face but was not diagnosed as having suffered a concussion.

The defense argued the plaintiff had not suffered any brain injury, pointing to the lack of concussion diagnosis in the ER as well as the plaintiff’s academic success over the years. Any psychological issues were a result of family stressors like her parent’s divorce, the defense
said.

Everett countered each argument with time on his side, as the intervening 13 years provided
a wealth of evidence of both cognitive and psychological struggles.

“The biggest challenge was that the plaintiff spoke well and performed well academically,” he said. She was provided with a Section 504 plan with accommodations in high school, however, and Everett had anecdotal evidence of issues with the executive function of her brain.

“She had tremendous problems with organization,” he explained. The executive function involves organization, planning and prioritizing, which all presented serious challenges to the plaintiff. Packing up to go from one parent’s house to the other would take her five hours, Everett said, unlike her sisters, who had the job done in less than one hour.

And despite her continued good grades, the plaintiff exhibited a serious personality change.

The psychiatric aspect of the case was “astonishing,” Everett said.

Over the years, the plaintiff became increasingly more difficult to get along with, getting suspended from school for fighting and making few friends, in sharp contrast to her behavior before the accident and to the behavioral patterns of her older and younger sisters.

“This wasn’t just teen angst,” Everett said. “Even the defense neurologist agreed her behavior was outside the bounds of normal.”

Medically, Everett and Stoney were prepared to introduce neuroimaging through PET scanning and a brain MRI with diffusion tensor which both documented evidence of brain dysfunction and damage.

“The medical literature indicates that concussions are more often missed than not in the ER,” Everett said, at a rate of 56 percent according to the study he planned to use at trial.

Prepared with powerful testimony

Although ready for trial, the case was resolved through mediation.

Testimony by the Good Samaritan who rescued the plaintiff would have led the case at trial, Everett said.

Twenty-five years old at the time of the accident, the young man was so affected by what he
saw that he kept a newspaper photograph of the wreck. Everett said the man still vividly
recalls the image of the plaintiff – literally hanging in the air – and his indecision on whether
to rescue her, concerned that he could cause a spinal cord injury.

Even more concerned that she could fall to her death, he chose to gently extricate her.
His powerful testimony would have been followed by various doctors and experts.

The plaintiff sought damages for reduced earning capacity and future medical and other
expenses.

Her future remains uncertain, Everett said.

She is struggling in college. According to one of her treating doctors, the plaintiff is currently allocating her limited mental capacity towards academics to the detriment of her social success.

“Her parents are desperately worried that she will never be able to form long-term relationships and that she will alienate any prospective employers,” Everett said.

The $1.7 million settlement – most of which is structured, with the remainder invested, Everett noted – will help. “The really poignant thing is that no one knows what her future holds.”

Article Source: http://valawyersweekly.com/2013/05/16/waiting-to-file-suit-aids-in-1-7m-settlement/

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