The Case That Should Have Never Gone to Trial

A plaintiff's attorney walked into court asking for $12.8 million. The jury came back with $20,000.

That attorney almost certainly spent more on expert witnesses than his client recovered. And the clinical foundation that was supposed to support those experts was never as solid as the team believed it was.

In this episode, Linda breaks down a low-speed rear-end collision case that went to trial on a claim of permanent traumatic brain injury... and examines exactly where the clinical picture started falling apart long before the jury ever deliberated.

The case had five expert witnesses on the plaintiff's side. The defense had one neurologist. 

Linda walks through the pre-existing conditions that should have been addressed in the medical record before discovery ever started. The gap in treatment that the defense used to dismantle the plaintiff's credibility. The imaging timeline that left the clinical narrative exposed. And the question nobody on the plaintiff's side appears to have asked early enough... whether this case was clinically ready to go to trial at all.

This episode is not about the legal strategy. It is about what the chart was saying and what it needed to say before anyone wrote the first expert check.

A few thousand dollars on the front end looks very different than six figures in unrecovered expert fees on the back end.

If that math is relevant to something you are working on right now, link is in the show notes.

The information provided in this podcast, and any associated materials—including our e-books and templates—is for educational and informational purposes only. 

While we strive to provide the most accurate and current data available at the time of release, science and law are constantly evolving. 

This content is not intended to be a substitute for professional medical advice, diagnosis, or treatment, nor does it constitute legal advice or the establishment of an expert-witness relationship. 

For Attorneys: Always consult with a qualified medical expert regarding the specific facts of your case. For the General Public: Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. 

Never disregard professional medical advice or delay in seeking it because of something you have heard on this show. 

Reliance on any information provided by Linda Acker, FNP, or Clear Advantage LNC is solely at your own risk.

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LindaAckerFNP@ClearAdvantageLNC.com

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Transcript

Introduction

SPEAKER_00 0:00

Hey guys, welcome back to the Lawyer's NP. I'm Linda, the NP. And today we're gonna talk about $12.8 million. Because that's what a plaintiff's attorney asked the jury for. And the jury came back with $20,000. That's not a typo. They really came back at $20,000. And I'm sure that attorney paid more in expert fees than his client received. Probably significantly more. And today we're gonna walk through exactly how that happened. Because it didn't have to go this way. There were signs. Really early ones. The kind I see in charts before a case ever gets filed. And I want you to know what they look like. Because the next one might be sitting in your intake pile right now. This shows for informational and educational purposes only. See our show notes for the full professional disclosure. Alright, let's go. It was a rear-end collision, low speed, minor vehicle damage, and I mean minor. We're talking about photographs where you have to look hard to find the impact. The plaintiff was a backseat passenger. He claimed permanent traumatic brain injury. By the times went to trial, the plaintiff had five expert witnesses. They brought DTI imaging. They had testimony about angular acceleration and radians per second squared. The defense had four witnesses. One of them was their neurologist. Effectively, the defense won. So what happened? This is what I want you to understand about the case from a clinical standpoint. The plaintiff had pre-existing diagnoses. He was prescribed a medication for this pre-existing diagnosis. After the accident, he stopped taking his medication because it worsened his headaches. Stop right there. That one fact, an untreated pre-existing condition that worsened his claim of symptoms, that's a gift to opposing counsel. And if nobody on the plaintiff's side addressed it head on with the correct documentation, clear clinical narrative, it's going to be used against the plaintiff. And it absolutely was. The defense neurologist pointed straight at it. The plaintiff's own treating neurologist had already noted in the records that his pre-existing condition was contributing to his symptoms. That note was in the chart. It was already there before the plaintiff's team ever walked into the courtroom. So when your client has a pre-existing condition that overlaps with the symptoms they're claiming from the injury, you need to separate them early, not at trial, before. I'm gonna leave the how to right there, because the roadmap for doing that isn't a quick conversation. But I will say this. It involves medication trials, documented follow-up, and clinical narrative that a jury can actually follow. That work happens during treatment, not during discovery. The plaintiff's team made a big deal about the DTI imaging, diffusion tensor imaging. It's a specialized MRI that can show white matter tract changes that a standard MRI misses. They brought it in. They talked about it, it was part of their case. The problem was the timing. The initial CT scan was normal. The initial MRI also normal. The treaty neurologist who saw this patient early told him his neurological exam and MRI were normal. That finding is in the record. And then a year and a half later, after the lawsuit was filed, the plaintiff starts seeing new doctors. That gap isn't invisible to a jury. And the defense used it. The defense neurologist said something that I want you to hear from a clinical perspective because it's accurate. In 18 years of practice, he had never seen someone with long-term disability from a similar mechanism with a normal initial CT and MRI results. He also testified that there's no scientific mechanism by which a patient improves after a concussion and then, without any new injury, worsens significantly months later. That's a tough clinical argument to overcome without the right evidence in place. There are imaging modalities and clinical documentation strategies that can help bridge that gap between a normal standard MRI and a legitimate ongoing TBI presentation. I'm not going to walk through all of them here, but what I will tell you is that the time to order is not after you file. It's during active treatment. I want to talk about what the defense side of this case probably looked like behind the scenes, because this jury verdict didn't happen by accident. Someone on that defense team was reading those medical records the way I read them. Not for a summary, not for a timeline. They were reading for gaps, for inconsistencies, for the places where the clinical picture didn't support the damages being claimed. And they found them. And they were everywhere. The two treating docs who saw this patient earliest, you know, the ones whose notes showed improvement and whose findings were most favorable for the defense, neither of them testified for the plaintiff. And the defense counsel pointed that out in closing loudly. The plaintiff's damages experts, the ones talking about future costs and lifelong disability, they relied entirely on what the plaintiff told them about how he felt before and after the accident. Not on objective findings, not on corroborating records, on self-report. And the biomechanics expert, as credentialed as he was, he had never seen the actual vehicle. He had not spoken to any of the people in the car. He was working from depositions and photographs of one of the two vehicles. Each of those things individually is manageable. Together, they built the defenses case for them. Let me be very direct. And I'm going to say something that might be uncomfortable. A thorough clinical review of this case before it was filed, the kind of review that looks at the whole chart, the pre-existing conditions, the treatment gaps, the imaging timeline, and the documented inconsistencies, may have resulted in a recommendation to not take this case. Or at minimum, to not take it just yet. Because the clinical foundation just wasn't there. And all the expert witnesses in the world can't build a foundation that doesn't exist in the medical record. There are things that could have been done during the treatment phase that would have changed this case. Closer follow-up with treating physicians instead of a year and a half gap. Documentation from people who knew this client before the accident. People who could speak to who he was before and what changed. Therapy records, if he was suffering the way he claimed. A clear documented effort to manage the pre-existing condition separately from the post-accident symptoms would have been super helpful too. Collateral evidence isn't something that's just nice to have in a TBI case. It's often the difference between a jury that believes your client and a jury that doesn't. If the only person in the room saying your client's life changed is your client, you have a problem. I'm going to stop there because the full breakdown of what that pre-litigation clinical prep looks like is a longer conversation than this episode. Let's get back to the number. $20,000. The plaintiff had five expert witnesses. Expert witness fees in a case like this run tens of thousands of dollars each. That attorney almost certainly spent more preparing this case than his client walked away with. That's the cost of going to trial without someone on your side who's reading the chart the same way as opposing counsels reading it. Not a legal team doing their best. Not a retired clinician working from memory. Someone who's still inside medicine. Someone who knows what the record is supposed to say and what it's actually telling you. Someone who would have walked into that intake meeting and told you what you were looking at before you cut the first expert check. I'm not telling you this case was unwinnable. I'm telling you it wasn't ready. And the difference between those two things lives in the medical record. If you have a case with a TBI claim and a pre existing condition exists, a gap in treatment, or your experts are relying on self report, I want to hear about it. Not after you've retained five experts, right now. That's the kind of conversation I love to have. Link in the show notes. As always, stay medical legal ready, and I'll see you in the next one.