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$1 Million Mild Traumatic Brain Injury
The plaintiff and the defendant were both tenants in the same office building and both regularly brought their dogs to work. In April 2016, the plaintiff and her dog were in the building’s parking garage when the defendant’s unleashed dog ran over and attacked them, knocking the plaintiff down and causing her to hit her head on a brick wall. Plaintiff went to the Emergency Room the day she was injured with complaints of head pain and dizziness. She followed up with her primary care physician, who referred her to a neurologist. She was subsequently referred to Spaulding Rehabilitation Hospital where she received speech therapy, occupational therapy, and physical therapy. She was also referred for neuropsychological testing. She was eventually diagnosed with a mild traumatic brain injury (MTBI) which, by definition, will not show up on conventional radiography such as MRI’s or CT scans. Approximately 15 years prior to this injury, the plaintiff had sustained a prior skull fracture and brain bleed, which prevented obtaining any meaningful information from more advanced imaging techniques such as diffusion tensor imaging.
In the absence of radiographic documentation, plaintiff was prepared to present the video testimony of her treating physician who at that time was Co-Director of Spaulding’s Brain Injury Medicine Program and of the neuropsychologist she was referred to for evaluation of the effects of her injury. Both were prepared to testify that as a result of the dog attack she sustained a mild traumatic brain injury causing permanent cognitive deficits in attention, processing speed, and executive function and additional symptoms including mood swings, rages, headaches, anxiety and emotional distress. Both treaters were also prepared to explain how the plaintiff’s previous skull fracture and brain bleed made her more susceptible to sustaining severe and permanent effects from her subsequent MTBI. In addition to medical expert testimony, plaintiff was prepared to offer testimony from seven “before and after” witnesses who would testify to the dramatic difference in plaintiff’s social and professional functioning as a result of her MTBI. Plaintiff was also prepared to offer testimony from seven “before and after” witnesses who would testify to the dramatic difference in her social and professional functioning due to her MTBI.
At the time of her injury, the plaintiff was a single parent and the sole guardian of an adult son, who lived with her and had severe congenital disabilities and multiple medical issues. A consortium claim was brought on his behalf as plaintiff believed that the quality of care which she provided him had suffered due to her traumatic brain injury.
As well as arguing that there was no radiographic evidence of plaintiff’s injuries, the defense also argued that plaintiff’s economic damages were minimal as she incurred only about $40,000 in medical expenses and her business tax returns showed either losses or minimal profits in the years preceding her injury. The defendant also argued that the dog attack was not the proximate cause of plaintiff’s injuries but instead was her own conduct which caused her to fall when she attempted to kick defendant’s dog and missed.
The case was originally scheduled to be tried in December 2019, but was continued by the Court on the eve of trial. Due to COVID, the trial was further continued to April 2022. In March 2022, the defendant offered the One Million Dollar policy limits of his business liability policy. A special needs trust was set up for the portion of the settlement proceeds allocated to the disabled adult consortium plaintiff and the Court approved the settlement in May 2022.
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