The defense expert.
The hired gun.
I’ve written a bit about these physicians who are hired by insurance companies and defense attorneys to criticize my clients. The lengths that they will go to and the positions that they will take to support the insuror are many times at odds with undisputed medical information known clearly to medical practitioners who aren’t dependent upon insurance companies for their next paycheck.
On a fairly regular basis, I depose experts hired by the insurance companies who testify that my client couldn’t possibly be suffering from a traumatic brain injury because they did not lose consciousness after the initial injury. There are neuropsychologists, neurologists and other experts for the defense who are adamant that individuals must lose consciousness in order to have sustained an actual injury to the brain. I know that my case is going well if they best defense they have to my client’s claim is the "loss of consciousness" defense.
It’s at this point in the deposition that I have to reach into my briefcase and pull out a file that I’ve simply labeled "Phineas Gage" and I begin to cross-examine the medical witness on the problem with their testimony.
What is a Phineas Gage?
The correct question is who……..
On September 13th, 1848, Phineas Gage was a 25 year old construction worker; a foreman for the Rutland and Burlington Railroad in New England. He was working with his crew to level uneven terrain so that new railroad tracks could be layed across the ground. The process for the leveling the terrain involved drilling holes into the bedrock, filling the holes with gunpowder covering the powder with sand and using a fuse and a tamping iron to trigger the explosion.
Phineas was distracted and began tamping a hole before his co-worker filled it with sand. His tamping rod – a pointed, 3 cm thick and 109 cm long rod – triggered an explosion which shot the rod up through the side of his face under the left eye, through his skull, through the frontal lobe of his brain and out the top of his head. He was momentarily stunned, but did not lose consciouness and was even able to talk to the witnesses and walk away from the scene of the accident with his men. It’s an important case because his brain was clearly injured by the metal rod that blew straight through his frontal lobe. But, he never lost consciousness.
When confronted with this well known medical case study, the defense expert has no choice but to admit that individuals can suffer direct injury to the brain and never lose consciousness.
Often, they will dismiss Mr. Gage’s case as an anamoly, which is when I go to a stack of articles from recognized medical journals that refute the defense expert position regarding loss of consciouness.
One of my favorites comes from last fall’s New England Journal of Medicine. In the September 30, 2010 issue, there was an article entitled "Traumatic Brain Injury – Football, Warfare, and Long-Term Effects". The authors were Drs DeKosky, Ikonomovic and Gandy.
In the article, they report,
Each year, more than 1.5 million Americans sustain mild traumatic brain injuries with no loss of consciouness and no need for hospitalization; an equal number sustain injuries sufficient to impair consciousness but insufficiently severe to necessitate long-term institutionalization.
It may be easy to dismiss Mr. Gage as an isolated case, but it’s not as easy to dismiss 1.5 million individuals who damaged their brains without ever losing consciousness.
With a little knowledge of history and medical journals, handling the hired gun should never be a problem.
Mr. Smith has practiced as a trial attorney since graduating Notre Dame Law School in 1992. He has litigated cases across the country including cases from Ventura County, California to Middlesex County, New Jersey. He practices in both State and Federal courts.
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