Inside an $8.1 Million TBI Verdict with Scott Blair
“ The TBI alters the organic chemistry, the physical structure of the brain to the point where our personalities then get altered. Our spirit knows who we are. But you can’t get that person back… and I think jurors get that.” – Scott Blair
Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.
What’s In This Episode:
Scott Blair shares how he built and tried a complex TBI case that resulted in an $8.1 million verdict.
He explains the role of advanced neuroimaging, expert strategy, and objective evidence in overcoming common defense arguments. Most importantly, he provides practical guidance on how trial lawyers can strengthen their cases by understanding the medicine, telling the client’s story, and preparing for trial from day one.
Winning Complex TBI Cases
In this episode, Tom is joined by Scott Blair, founder of Brain Injury Law of Seattle, to break down the strategy behind a recent $8.1 million traumatic brain injury verdict. Scott shares how he approaches complex cases, from digging deep into the medicine to building objective evidence that makes it difficult for the defense to deny brain injury.
This conversation goes beyond theory. Scott walks through the real decisions that shaped the case, including expert selection, advanced neuroimaging, trial strategy, and how to handle common defense tactics in high-functioning TBI clients.
Key Insights for Trial Lawyers
- Dive deep into the medicine: The strongest TBI cases are built by lawyers who understand the underlying medical science and work closely with the right experts.
- Objective evidence changes the game: Advanced imaging, sleep studies, and vestibular testing can create converging proof that is difficult for the defense to dismiss.
- High-functioning clients require a different strategy: Clients who continue working after injury often face skepticism. Demonstrating how their capacity has changed is critical.
- Tell the employer early: Encouraging clients to disclose their brain injury can lead to documentation and accommodations that strengthen their case.
- Neutralize defense narratives early: Address issues like travel photos or work performance before the defense raises them to reduce their impact at trial.
- Use real-world functioning, not just testing: Speech-language pathology and real-world observations can be more persuasive than traditional neuropsychological testing alone.
- Before and after witnesses are critical: Family members, especially spouses, provide powerful testimony about how the client has changed after the injury.
- Visual evidence matters: Jurors respond strongly to clear visual representations of brain injury, especially when complex science is involved.
This episode is for trial lawyers who want to take their TBI cases to the next level. If you’re handling complex or high-value cases, Scott Blair’s approach offers a practical roadmap for building stronger evidence, overcoming defense strategies, and presenting a compelling case at trial.
Winning the TBI Case — Inside an $8.1 Million TBI Verdict with Scott Blair
Crosley Law | Runtime: 50:10 | Speakers: Narrator, Tom Crosley, Scott Blair
[0:00] Scott Blair: You know, what I told my client early on, because this is so typical of high-functioning people, they don’t want other people to know that they have a brain injury because it damages their employment reputation. They might lose their job. And it’s really important for us as plaintiffs, TBI lawyers, to tell our clients, no, do the exact opposite.
[0:20] Narrator: TBI cases can feel like navigating uncharted territory. Your client’s injury is real, but proving it? That’s where the real challenge begins. If you’ve ever felt like you’re missing crucial pieces of the puzzle, you’re in the right place. Welcome to Winning the TBI Case, where Tom Crosley shares the insights he’s gained from over 60 injury trials. Not just the victories, but the lessons learned along the way that make all the difference. This is practical wisdom from someone who’s been in your shoes and found a path forward. Winning the TBI Case: Strategy, Science, and Storytelling. In this in-depth conversation, Tom Crosley welcomes Scott Blair to explore what it takes to win complex TBI cases that other lawyers won’t touch.
[1:12] Tom Crosley: Welcome back to Winning the TBI Case. I’m your host, Tom Crosley. Today we are joined by Scott Blair, founder of Brain Injury Law of Seattle. For Scott, brain injury work is his passion. And for the last 25 years, he has proudly helped folks with brain injuries get the specialized treatment they need, and he has successfully litigated their claims in court cases time and time again. We’re really glad to have Scott here today because he’s going to discuss with us a very significant case he tried that yielded an $8.1 million verdict. I was hoping you could give us your background story. Talk about your life. What led you to law school? Then after law school, how did you end up becoming a brain injury lawyer?
[2:01] Scott Blair: I was not a very good student in high school. I kind of failed out and just didn’t really care about it and decided to travel the world. But when I did that and got back and went to college, I wanted to be a doctor and my first semester I took Biology and got a C in it. And the pre-med advisor, I’ll never forget, he came over and put his arm on my shoulder and said, Scott, I don’t think medicine’s for you. And so ended up gravitating to law school instead and off I went. But you know, I was doing PI work early on in my career and did a lot of the musculoskeletal stuff, which is great. It’s just that there’s kind of a ceiling in terms of what you can learn about medicine. What really projected me into getting into some of these oddball you know, esoteric medical issues like brain injury was a case I had where nobody could figure out how my guy became a quad, and I won’t spend a lot of time on it, but he had this rare condition from a post-injury tetanus shot that he got called Chronic Inflammatory Demyelinating Polyradiculoneuropathy. So CIDP for short. And it took me seven years working with a neurologist to establish causation and get that thing up. We ended up getting a very good result for this kid that no one else was going to touch.
[3:24] Scott Blair: And that case taught me a valuable lesson that really have to dive deep in the medicine. And so when I started doing TBI cases, I thought, oh my God. This stuff is fascinating as hell because, you know, musculoskeletal, you can only go so far with strains, breaks, and blah. With TBIs though, that stuff was just a total terra incognita, so to speak. And it just really stoked my curiosity. And every time you get into these cases, there’s something new and different, and you get some downright bizarre cases now and then. You know, you just don’t see any place else. They’re a great challenge trying to find how do you get the right experts for these things? You know, and for example, brain injuries, I’ve had two cases where it resulted in a loss of religiosity, for example, which is a really bizarre thing, but I was able to find a guy out of Northwestern University who actually has written papers on this. And so it’s a real thing. Mm-hmm. The challenge was how do you establish damages for a deeply religious family, who one member of the family is suddenly the whole sense of religiosity is gone. And it was. It’s that kind of stuff that is just really bizarre and interesting to me that drew me to TBIs.
[4:45] Scott Blair: I’m a geek. I really dig, you know, diving into the other things, the pituitary stuff. I think we got the first pituitary verdict, post-traumatic hypopituitarism verdict in the country. And that just kind of fell in my lap. And we wouldn’t have gotten that without really digging deep into the medicine.
[5:05] Tom Crosley: That’s interesting. I’ve not heard of the loss of religiosity. But as you were saying it started to make sense to me because a life-changing injury, especially a brain injury, becomes an existential crisis for the victim. And when you start to question your existence and how you’re going to live the rest of your life, I can see why it might lead one to, claim.
[5:28] Scott Blair: You know, actually, Tom, it results from damage to the area of the brain that allows for and facilitates deep beliefs in things. And religion happens to be one of those. And that’s why this neuroscientist from Northwestern basically wrote a paper on it because there is an organic basis for that. So if you see a case like that, there’s, you know. There is a basis for it. They’re rare, but they do pop up.
[5:57] Tom Crosley: Yeah. So I think there are three things that separate really great lawyers from good lawyers. One of them is being willing to learn the medicine inside and out. The second one is being willing to learn the client, and their experience inside and out. And a third one to me is having the guts to take the risk of saying no to a really good settlement offer and going to trial.
[6:20] Scott Blair: Well, you know, in this case in December that you mentioned, that’s pretty much everything we had to do on that case. And it was a fascinating case because my client you know, he contacted me. He was a senior managing software engineer for Adobe here in Seattle. Incredibly smart guy and making a lot of money, close to half a million a year, and he was still working. You know, he went in to a local medical day surgery facility called Proliance here. Proliance has you know, about 120 DBAs in different medical clinics. So it’s a large medical entity here in the Puget Sound area. And he went in for shoulder surgery just from skiing a lot and that kind of thing. And surgery went fine. There was no problem with that. But they had him in the OR. He was unconscious. He was in what they call a beach chair, where they kinda elevate you up a little bit so the shoulder can you know, the surgeon can get access to the shoulder. And so the surgeon, after getting the surgery, leaves the OR, and there’s four people left in there. There’s an anesthesiologist, a surgical tech, a circulating nurse, and a scrub tech.
[7:39] Scott Blair: Somehow, they have three straps on this guy to keep him in his chair. And somehow, all the straps were taken off and everybody turns away and, you know, he kind of lurches forward and falls off and lands on his head. And so he wound up with the TBI from smacking his head.
[7:57] Tom Crosley: Is he still under anesthesia at this time? Still under anesthesia. So he knows nothing about what’s happening.
[8:04] Scott Blair: No, he knew nothing at all. And in Washington, like most states, there’s a statute that allows for medical organizations to do a quality review, and that’s all privileged. You can’t ever get it. And so, what do these people do? Basically they did no chart notes. The physicians had a couple of chart notes, but none of the nurses did talk about how it happened. And so it was a big void. And so when my client came to me, he just said, you know, they said, well, a mistake happened. And fortunately, my client’s wife, when they called her to say, hey, we got to take your husband to the ER, she had the good sense to turn a recorder on. We ended up getting the director of the facility saying, yeah, we screwed up and all that good stuff. And so it told us a little about what was going on. So fast forward. We wind up filing suit. So the client had a significant TBI. He treated for, oh, gosh, probably two and a half years before we filed. And his neurologist put him on part-time disability who’s only able to work 30 hours a week, where previously he worked 50. He was, you know, still able to do software work, but rather than managing a team of 250, they kept reducing his team and because he just didn’t have the bandwidth or the capacity.
[9:30] Scott Blair: You know in the software world, if you aren’t 100%, you know, you’re going to fall behind real quick.
[9:36] Tom Crosley: How old was he at the time of the injury, if I may ask?
[9:39] Scott Blair: He was 52 at the time of the injury. So at the top of his game, and he would have gone on to become a director or probably a VP, making over a million a year at Adobe. So this really affected him. And you know all the symptoms of TBI. I mean, they’re all he had all of them in spades.
[9:59] Tom Crosley: So, how long after his injury were you retained?
[10:03] Scott Blair: Well, he had a prior attorney who was not experienced with TBIs, and she had that case for about close to a year, and then he brought us on. And, we had to kind of clean up a little bit of the aftermath because the prior lawyer sent him off for a bad neuropsych that ended up becoming the centerpiece for the defense.
[10:23] Tom Crosley: So I was hoping you could, as you approach getting this case to trial, you could tell us what were the things that were most important to you after getting this case a year or so after injury? To make sure they were done, to set yourself up as well as could be for the trial that might be coming down the road.
[10:40] Scott Blair: For purposes of the objective evidence, one of the things we do in every case, as you probably do, is send people out for enhanced imaging. And I like to get you know, four or five different types of enhanced imaging so that we’ve got, three or four or five different ways of, or rather convergent validity is, I guess, the term that is used for it. So we sent our guy out for DTI, ASL, arterial spin labeling, of course, the usual volumetric analysis. We also did an MR spectroscopy and we had a fifth one of brain aging, which is really unique. I can show you what that looks like. It’s really cool. We did all of those. They ultimately all came back positive. And the beauty of them is that we were able to take the ASL, for example, and some of the DTI and show that there was a very distinct coup-contrecoup pattern of hypoperfusion in gray matter, from the left side of his head where it hit on the floor, to the occipital lobe in the back. So real nice coup-contrecoup. That kind of sealed the deal. Then we didn’t stop there. He had sleep problems post-fall.
[11:57] Scott Blair: And we know that getting a polysomnography can give you really good objective evidence of brain damage, if they can show that the hypothalamus was involved. So we had him do a really involved sleep study and our sleep neurologist, really great guy, he’s very knowledgeable about TBIs and sleep problems, pretty definitively said, yeah, you know, all this stuff shows that he had definitive sleep problems, sleep apnea, which comes from NEC and TBI. And so we were able to do that. And then the other thing we did was vestibular. We sent him to Dr. Gianoli down in New Orleans, who I think is one of the top people in the country for assessing vestibular problems. He did a hell of a job with the hearing and vestibular. Our guy’s vestibular had improved, but Dr. Gianoli was able to definitively show, through an MRI how he had nerve damage to the second cranial nerve. Where it was compressed and it took away hearing in one of his ears and the ability to process conversations in a room which helped explain why our client couldn’t sit in a meeting, listen to multiple voices at once.
[13:13] Scott Blair: It was just too much for him. We had all these different objective things we put together that made it incredibly difficult for the defense to do the usual stuff they do, you know, oh, it’s all in your head, or it’s, you know, mommy daddy issues from fifty years ago that are unresolved and other stupid stuff like that.
[13:32] Tom Crosley: You’ve got a lot of different experts. You’ve done a lot of different advanced testing. Are these being done as treating physicians in a clinical setting? Or are these retained experts from the outset?
[13:44] Scott Blair: Part of them were retained and you know, we had two treating neurologists, one of which requested the DTI. And so in a sense, you know, he requested it, but we had to find the right facility that would do it. So it’s a little bit of a hybrid of both and he also recommended Dr. Gianoli. And so again, we did Gianoli on a forensic basis and the same with the sleep. So kind of a hybrid, I would say.
[14:09] Tom Crosley: But the referrals to those forensic experts like Dr. Gianoli and this, were done by clinical physicians. So it gives them a, perhaps an air of more legitimacy, I would imagine.
[14:24] Scott Blair: Yeah, you know. I think jurors, when they hear a treating doctor refer out what we had our neuroradiologist do, he offered a very simple explanation for why we have to do this forensically. And he very eloquently said, you know, look, most health insurance will not pay for this stuff. And although we have a ICD nine code for it, it’s still not in the phase of being generally accepted for clinical use. But he said problem with it is that it’s expensive and a lot of health insurance carriers won’t pay. So it’s more of a concierge medicine kind of thing. And that’s why you have to generally get these things on a forensic basis or pay out of pocket for it if you really want to know what’s going on. And it was nice because we were able to kind of tap into that, that people have against the UnitedHealthcare from a year or two ago. I thought that was a national focus group occurring right before our eyes where you could see the anger people had towards organized healthcare organizations. And so we made sure his answer kind of tapped into that.
[15:32] Tom Crosley: So, I’ve talked previously on this podcast about diffusion tensor imaging or DTI, talked about various types of MRI scans. I have not yet talked about arterial spin labeling, which is another way to run an MRI scanner. But can you give us the overview of what that is and how it was important to your case?
[15:53] Scott Blair: Personally, I like ASL more than DTI or anything else. I’ll tell you why. What ASL does, it’s arterial spin labeling and what it’s doing is measuring blood flow in the brain. Now, there’s all kinds of normative studies that establish what is a normal blood flow in the brain. Now, we all know why blood flow is so important because the brain needs oxygen. Without it, we’re dead in five minutes. Oxygen getting to the brain cells is incredibly important. And what ASL does is it magnetizes the water protons in the blood for about eight or nine seconds. And what it does is it tracks them going through the brain. So in gray matter, it will identify the areas of the gray matter where there’s low blood flow or hypoperfusion. In an ASL scan, what you’ll generally pick up on is asymmetric damage that results in asymmetric areas of hypoperfusion. This is how you can detect, for example, a coup-contrecoup pattern of hypoperfusion in a brain because when you have microscopic damage to the gray matter, it damages the brain cells, blood can’t get through, and so you have these little pockets of hypoperfusion and they show up on an ASL.
[17:09] Scott Blair: With ASL, what’s important to remember is there in enhanced imaging, there’s two ways to look at enhanced imaging. There’s a qualitative evaluation, which is what the radiologist does by looking at it with their eyes. And ASL does have both capacities, qualitative and quantitative, which is using post-processing software to evaluate it. Now, a qualitative evaluation. Most MRI centers have ASL, problem is that it’s not favored so far for use in TBIs. It’s mostly used in strokes and tumors and things like that to determine what kind of blood flow is there. However, it is becoming more and more used in TBI. There’s a lot of papers that are saying we need to use this stuff in TBIs. And so I can show you an example of a qualitative ASL scan, and then a quantitative one is detailed, and that’s where you start to see the real patterns that show up.
[18:14] Tom Crosley: And is it the same neuroradiologist that’s ordering the MRI, the DTI? It’s doing the ASL as well. And is it all part of the same scanning sequence or is it a separate trip for the patients?
[18:27] Scott Blair: Yeah, it’s all the same scanning sequence. It the idea is to get a person into a machine that has all of these post-processing packages. You know, they the radiology facilities don’t always have all of these because they cost money and they have to have licensing. But if they get them all, they can then advertise it. But I’m a big fan of ASL. People intuitively understand blood flow to the brain much more easily than, you know, trying to explain DTI and how that works.
[18:58] Tom Crosley: Do you require a 3T machine or can it be run on a 1.5T machine? It can be run on a 1.5. You get a little better detail on a 3T. And then do you ever have a situation where your DTI might come back as abnormal, but the ASL comes back as normal or vice versa?
[19:16] Scott Blair: 100% of the time I’ve had positive results with ASL. DTI the only few times we’ve had negative results, it depends on the regions of interest that are being looked at. This was pre-IMECA. And now that we have IMECA, which is, as you know, is the new FDA approved DTI platform. We get pretty much 100% result with IMECA as well. But if you don’t have the old IMECA or the newer IMECA program and you’re using the old regions of interest approach, chances are you’re going to get some negative or, you know, zero findings because they’re not looking at the right spots. And little like. You know, the thinner the slice you go with MRI, the more likely you are to find pathology on an MRI. But if you don’t have thin slices, you’ll miss a lot. It’s kind of the same deal with DTI.
[20:10] Tom Crosley: Tell us kind of what happened next in the case.
[20:14] Scott Blair: We put all this together in a wonderful settlement opportunity package, sent it to Proliance and the anesthesiologist because he was a contract anesthesiologist. So we had two defendants. The anesthesiologist’s attorney kind of said, Well, you’re going to have to file suit so we can do some more discovery and the Proliance people ignored us. So okay, fine. We filed suit and Tom, it was hilarious because these guys denied liability. And they got into what we call a circular firing squad where the two sides are just pointing fingers at each other. And it was great. They basically had their hands tied because they didn’t keep any chart notes about what happened. And they, you know, just said, well, nothing was done wrong. And we did all kinds of discovery on this. We were, so we wanted to find out what their position was. They hired experts to say, well, Mm-hmm. The facility didn’t do anything and they kind of pointed their finger at the anesthesiologist because he’s the captain of the ship. And they’re right, he was, but he wasn’t in charge of doing the thigh strap or the kidney guard being loosened. So we had both of them, you know, squarely.
[21:32] Scott Blair: They continued to deny liability, fought them tooth and nail on that. And what Proliance did, Tom, is really interesting. They only had a million dollar policy limit, believe it or not. Proliance is the surgical facility. And the anesthesiologist was a guy named Dr. Cartier and the National Anesthesiology Group based in your lovely state, they had $4 million in policy limits. Proliance eventually came around and said, Well, all we have is a million, and we’re broke as a joke. And, you know, we just don’t have any more money. You probably ought to take it. It’s like, doesn’t pass the smell test. And so my associate, who’s like a dog with a bone, I said, Richard, go find anything you can on the financial affairs of Proliance. We ended up, my associate, after Mr. Joe said they’re broke, have no further money, you really ought to take this million dollars. Richard did a with our State Department of Health, and he found a you know, 60, 70 page document that they were applying to open up a new surgical facility. And the State Department of Health essentially said, yeah, show us that you’re financially worthy. So they had a CPA validated audit of their financial affairs.
[22:52] Scott Blair: They take in five hundred million a year and, you know, they had huge assets. What they did was they just thought if they insured each of their sub-entities, 122 of them, with a singular million-dollar policy each, then, you know, plaintiffs’ lawyers, hey, they’ll take that million dollars and they’ll go away. We’ll be fine, don’t worry about it. And so we got that and we tossed it back. Joast and Proliance said, Nah. You know, you guys are lying to us. And not Joast. Joast, I don’t think, knew. I think that Proliance was not, probably given him the full facts. So we ended up just telling them to pound sand, we’re going to trial. And as we got close to trial, you know, the anesthesiologist finally you know, threw the towel in and said, Hey, here’s our four million. And we made a tactical decision to accept the four and then just go ahead and go against Proliance individually. And that resulted in the 8.1 million verdict.
[23:55] Tom Crosley: What should we understand about medical malpractice law in Seattle to better understand your case?
[24:01] Scott Blair: There are no caps generally. They tried it back in the 80s with tort reform and our state Supreme Court said, no, it’s unconstitutional to have caps. And so we’ve never had them since then. There’s a few advantages the Med Mal people have. For example, if there’s a big verdict, they can file a motion with the court to have it paid in installments over time as opposed to having to pay it all at once. There’s also a mediation opportunity that can be asserted if both parties agree, you know, before filing. But other than that, there’s not much in the way of limitations.
[24:40] Tom Crosley: You’ve now settled with one of two target defendants. You’ve settled with the anesthesiologist. You’ve decided to go to trial against the surgical facility, and pick up the story there. And help us understand also, the lessons we as TBI lawyers can learn from this trial.
[25:00] Scott Blair: Well, first off, when you have a high-functioning individual like my client, a guy who’s really smart and is still working, albeit 30 hours as opposed to 50. The defense and the insurance carriers love to say in TBI cases, there’s no brain injury here. I mean, look, the guy’s still working. He’s not sitting in a corner drooling, so he must not have a brain injury. The thing about high-functioning people is that we have found through numerous focus groups that if you have a high functioning individual who is really smart, makes a lot of money, jurors are willing to give big verdicts because they see that this person using their brain and having a brain injury is going to result in bigger damages. You have to overcome all of the noise that the defense generates about how smart they are. So, for example, they will get employment files. And they harp on the employment files and how they’re getting good reviews. They’re not getting penalized or punished. And you know, what I told my client early on, because this is so typical of high-functioning people, they don’t want other people to know that they have a brain injury because it damages their employment reputation. They might lose their job.
[26:17] Scott Blair: And it’s really important for us as plaintiffs, TBI lawyers, to tell our clients, no, do the exact opposite. Go tell them. I have a brain injury because now you’re protected under the ADA. They can’t just go ahead and dump you. And then all of a sudden, if they know that you have a brain injury and they start to accommodate you, this all finds its way into the employment file. And how do you think that helps a trial? A lot. And you know. When you have issues like light sensitivity, photo sensitivity or sound sensitivity, and they’re not able to do meetings. You start to talk to some of the co-employees and you learn some really interesting stuff. You know, in our trial, for example, there was a very loquacious fellow from France who was kind of hard to understand, but he worked for Adobe and he loved our client. He came in and said, oh, yes, I can’t even imitate his accent, so I’m not going to try it. The employer knew about Jason. And they really went out of their way to accommodate him, but they started pulling big projects away from him. And that’s all reflected in the file. So this set us up for a really nice, I hired a really good vocational guy who here in Seattle, who’s very used to dealing with high functioning tech people.
[27:33] Scott Blair: And he did a masterful job of talking about how he would have progressed on to making a million a year and the economic losses were enormous here because of this brain injury. And you just don’t survive in the high-tech field with a brain injury. There’s always wolves nipping at your heels. You know, if you don’t have game 100%, you’re going down. One thing I really recommend to any of your people listening to this or watching this, is embrace the brain injury and convince your client to go to their employer and just tell them, look, you know, here’s what’s going on. Because otherwise if you don’t tell them, what are they thinking? They start filling the gaps with their own thoughts like this guy’s not very smart, or he’s slacking off, or she’s, you know, blah. They come up with all kinds of internal excuses that damage your client might find their way into their employment file. So be honest about it.
[28:30] Tom Crosley: What were some of the other key defense narratives and how did you overcome them?
[28:34] Scott Blair: The key defense narrative in this case revolved around the early neuropsych evaluation that was done. Now, here’s another nugget I will pass on to whoever is listening to this. I personally do not like neuropsychology. I will never send a client to a neuropsych if I can help it. Now, if I inherit a case where they have been to one, okay, we can deal with it, prior lawyer who had no real experience in TBIs, sent him to a local outfit that ran him through it was a workers comp rehab place and they had just hired a brand new neuropsychologist with six months of experience. And this guy does an exam on my client, you’re familiar with pre-morbid capabilities and he didn’t properly measure my client’s pre-morbid estimate of intelligence. It looked like my client aced all of these tests and he said, there’s no problem here. You know, this guy must have depression or other problems. And so that became the centerpiece of the defense case, that treating neuropsychologist, you know. We don’t have any, we didn’t hire him, he’s unbiased, look what he said. Well one of the things that I would really encourage people who, if you are stuck with a neuropsychologist.
[29:54] Scott Blair: Mm-hmm. Take advantage of the limitations of neuropsychology.
[29:58] Tom Crosley: Okay, you mentioned the defense hired a neuropsychologist, a PhD named Summer Rollins. She’s actually based here in San Antonio. I’ve had her on a few of my cases, but I haven’t gone to trial on any of those cases. I’d like you to talk about how you on her opinions in this case, and how you were able to show that her side was wrong and your side was right.
[30:19] Scott Blair: What we did with her is: I started out with ecological validity because, with a record review, where she says that, you know, my client was. Doing really well. He tested well, et cetera, et cetera. We wanted to illustrate the difference between, what my client’s work environment was like, working in a busy office versus being tested in a quiet clinical setting. And so we started with this and we just kind of went through and tests are done in ideal conditions. She agreed to that. Tests are done in a structured way, and they don’t reflect real daily life demands. She agreed with all this. And ultimately we came up with this, it’s the ideal versus the real. And that was a moniker that we used for her. And then we, you know. This exhibit here, and I said, So, ideal testing conditions are kind of like what we see on the left. Is that correct? Okay, and here’s a typical high-tech office, you know, on the right. And so one of the questions we asked her was I basically said, so doctor. You know, if you were to give these tests in this real world setting, what would the results be? Well, we can’t because it would invalidate them and they’re not normed for this kind of setting.
[31:37] Scott Blair: Okay, so in other words, you can’t tell this jury, how he would have functioned in this environment, only in this one on the left. Is that right? And you know, and the point was made quite clear, I think, for her. And this, you know, he had a problem with meetings and we wanted to highlight this too, to show how there is just a lot of stuff going on in meetings. So she agreed with all this, the ideal versus the real, and it worked out very nice for the jury. We then focused on Lezak’s book a little bit about premorbid intelligence and how a person with, I blew this up. Because our guy was a software engineer. I got her to agree that Lezak was one of the kingpins of neuropsychology. And so for a person who writes software, programs, they’re very superior pre-morbid intelligence. That’s the highest you can get. And in this case, the neuropsych only had him as, you know, above average. And so she had to agree that you know. And then we talked a little about, this is from Bigler’s paper, which I love. You know, he shows the advances of well, the relative lack of advances in neuropsychology.
[32:55] Scott Blair: They’re the same after 84 years. And with neuroradiology, he shows how it’s advanced over that timeframe dramatically, but neuropsychology has stayed stagnant, hasn’t budged. And she was trying to weasel her way out of that, but I think the point was made clear to the jury that neuropsychology is a soft science that isn’t going anywhere or isn’t moving really.
[33:19] Tom Crosley: So you’ve talked a little bit about your attack of the defense neuropsych. What else do you think was like a watershed moment in this trial?
[33:27] Scott Blair: The other thing the defense is really relying upon in this case is my client. You know, he made good money and he and his wife traveled a lot. His wife was in the travel business. She worked for National Geographic and other tours. So they traveled a lot. He had a daughter in college they would travel with. And so the defense quickly picked up on. They subpoenaed all of his vacation photos, of which there were many. And they were in various foreign places around the US and just on and on. And they were trying to say, look at this guy. He doesn’t look brain injured. He’s out traveling. He’s, you know, you see him here in Greece without sunglasses. Has he really got photosensitivity? And we just got right in front of all the travel photographs. And so when the defense started going through it, you know, on cross with our client. It just got the jury’s like, yeah, I’m over it. You know, you could see it on their face. Big deal. And we completely stole their thunder. In addition to that, we also pulled out all the photographs of him laying, you know, in a hotel in the afternoon, exhausted. Or laying at home, you know, with his dog, crashed out late in the day from fatigue.
[34:44] Scott Blair: And so it completely diluted their, the power of their photo defense. We spoke to the jury afterwards, and what they told us, they thought the most important witness in the entire case were two. One was our vocational guy. You know, they said he really put everything in perspective from a numbers standpoint how this guy is going to be affected in his career and the other one of two was our speech language pathologist. She was amazing and she’s been doing this for 25 years. Unlike neuropsych testing, you know, as you know, SLP basically, it deals with real-world stuff. They test you in a real-world environment, unlike the neuropsych where it’s the ideal environment. And so, we were able to bookend the SLP with the neuropsych and show how it was so much more valuable in terms of testing real world stuff. And she saw him 20 times versus the one time, with the neuropsyches.
[35:47] Tom Crosley: Let’s talk about the closing argument. Tell us about it. How much did you ask for? Did you suggest a dollar amount? Did you come up with various models or mechanisms by which a jury could get to the number you wanted?
[35:59] Scott Blair: We had a little bit of a tough jury panel because there were so many medical people on there. And there’s, I don’t know how we ended up with so many, but a lot of them were, you know, a little more tied into actual numbers. And so Courtney basically went through the closing and you know, she talked a lot about the human stuff and then when we got to the numbers, the 30 to 50 million. You know, she talked about the value of a healthy brain and how does that affect a high-functioning person like our client and his wife? One of the things we also harped on very heavily was the future risk of dementia and Alzheimer’s. And our neuroradiologist happened to have a lot of specialty in that area and was able to talk about it. But in Washington we get damages for the fear of you know, a potential thing like Alzheimer’s coming, without having to prove the actuality of it. And so even though our radiologist couldn’t say that our client would more probably than not come down with it, you know, the judge allowed us to go forward with the fear of that, and Courtney harped on that pretty heavily.
[37:15] Scott Blair: Because we know from focus groups that is a huge fear factor for jurors. And I would really recommend anybody doing a TBI case to get into that because even a mild TBI, you’re six times more likely to come down with Alzheimer’s. Closing, I think, after they realized just how strong of a case we put on, their number went up to like 800,000. And I could tell they were struggling with on the one hand, 30 to 50, and this is the age-old struggle defense lawyers have. Do you stay really low and try to anchor it down and piss the jury off? Or do you try to appear reasonable and come in somewhere in a mid-range? They were really in a box. And I think that was why they came up with the number they did. And you know, the jury deliberated for about two days. And the number they came up with, they said was largely based upon the vocational experts’ estimates along with general damage stuff. Yeah, we obviously we wanted a bigger verdict, you know, the amount of the verdict the way it turned out.
[38:34] Scott Blair: It was pretty much, collectively, everything we collected was essentially what our original demand was. And I thought it was for our client being he essentially told you’re full of crap. You don’t have a brain injury, this and that. Having the validation for him was enormous. He really wanted that. And ironically, my client. You know, just kinda just let go from Adobe because of the TBI and he was able to negotiate a really nice severance package, you know, to them feel free of any kind of pressure from the ADA. But yeah, the moral of the story or the happy ending on this one was he got a nice verdict. He’s set for life now and doesn’t have to worry about trying to compete for a high-tech job when he knows he’s not going to be competitive for it.
[39:32] Tom Crosley: What were the biggest lessons you learned from this trial that you think would be important for lawyers around the country to know?
[39:39] Scott Blair: So the medical profession now needs to look at a TBI as a disease process. And so do lawyers. We need to look at it and say, this affects everything to some degree within the body. And I think the standard of care in our profession, is we have to look at each and every part that has been affected and talk about that. How is that going to affect this person? By doing that, you know, we show it’s a systemic insult to the body. And if you have a claim for future dementia and that kind of stuff. It just falls, it dovetails very nicely into that disease process for a jury to take a look at. We know from juries, you know, doing focus groups and talking to jurors in these cases that people now are pretty sophisticated with their knowledge of TBIs. You know, the NFL has done us a solid in terms of talking about CTE, even though that’s a different type of brain injury. But they don’t necessarily differentiate the two CTE from a TBI. And in the jurors’ minds, they’re really very similar. So talk about the totality of the TBI.
[40:55] Scott Blair: You know, sometimes it’s not possible, but I would say find the top two or three objective measures. And then the other thing is before and after witnesses. You know, you’re well aware of those. And I think any good lawyer knows the value of before and after witnesses. I think they’re probably the most important witnesses in the case because jurors get it. You don’t have to convince them of too much. They’ll subject it to the BS test if you know, if what they’re saying sounds true, then okay, cool. Then all this high-level scientific medical stuff coming in is just backing up everything the witnesses are saying. I think it’s a real beautiful interplay. The last thing I’d say is with all this advanced neuroimaging, I didn’t show you some of these really cool things. Good visual imagery of the brain damage is enormous because the jury afterwards just said it was too complicated. Just show us a visual representation of what you’re talking about. Let me real quickly explain. This is used against a normative database of about 40,000 people, believe it’s volBrain, the database they use.
[42:12] Scott Blair: Taking the normative database and then looking at the volumetric findings in my client’s MRI that he had along with everything else. Our neuroradiologist was able to take this, and the areas in red show where you see up on top here. He was 5, at the time this image was done. And so when you see the areas down here in green, some of the areas of his brain were below the normative age for him. Other parts in the deeper red were more closer to 60. So this guy’s parts of this guy’s brain, and this is the contrecoup portion that you see right here. So he whacked his head right here. And on the contrecoup portion, we see significant areas or pockets where his aging is well above what it should have been. Now, this is a normal ASL. Now, you see, for example, I’ll stop it right up here. And on the top, you see this scale of colors. A nice red, that’s robust. That means you got really good blood flow. That’s 100 milliliters of blood flowing per minute. And as it goes down to green and into the purples, those are the areas where there’s low blood flow.
[43:28] Scott Blair: Now, this was a sample of what a normal brain probably looks like. Fairly robust with blood flow. And so, all right, let me stop this and here is what our client’s basically looked like. And you see the blue up here in the 20s. Blood flow to the gray matter of his brain was substantially reduced. And you know, this helped kind of fit the bill of why he was having so many cognitive difficulties because there’s lower blood flow to that part of the brain. That’s powerful.
[44:06] Tom Crosley: That’s very powerful. Did you do more than one of these ASLs and how far apart were they staggered and did the results change?
[44:15] Scott Blair: We only did one of the ASLs in this particular case. However, here’s what I recommend for people thinking about getting imaging. Do what we call a longitudinal study. You’re aware of that. But, you know, if you get a case early on, get your client in right away for at a minimum volumetric evaluations and then 18 months is when I generally look at it, because that’s the point at which most people say it’s chronic if he still has he or she still has symptoms. By getting a second MRI, now you can show the loss of volume between those two points in time, which is always going to be, vastly more rapid than what you see with natural aging. It just kills the defense argument that, oh, maybe this is just due to such, you know, blah. It’s not. Trauma is the only thing that’ll do that. So. That’s my recommendation is get two of them.
[45:06] Tom Crosley: Clearly an expert in TBI litigation. There’s a lot that lawyers around the country can learn from you. What advice would you give to young lawyers that are interested in pursuing a career, specializing in TBI litigation.
[45:23] Scott Blair: Dive into the medicine. Don’t be afraid of it. When you go talk to the medical experts, if you go in and talk to them where they know you have done your homework and you’ve tried to understand their world as opposed to going in and getting them to deliver everything for you. That makes an enormous difference. And I’ll pass on a little tip which I think it’s worth its weight in gold. When you look at the medicine, before you ever file your case. I like to do what I call oral medical reports. I love these because what it is, you take a little electronic dictaphone kind of thing and you do your phone. There’s all kinds of ways you can do this, but go into the doctor’s office and buy an hour of their time and say, Doc, I want to understand what’s going on here and talk to them first and have them state their opinions. Then you say, you know, Doc, be really helpful for me to if I could just record our conversation, have you tell me everything again. By recording it, what I’ll do is I will have it transcribed and I’ll send it to you to look at, make sure it’s all accurate, sign off on it. It’s like a deposition without the defense lawyer there. And here’s what happens.
[46:39] Scott Blair: The magic of one of these things is the minute they see that recorder, you know, sit there between them. They kind of straighten up and you know, they get ready to perform for you. And, you know, they will start saying stuff that you will never get by asking them to write you a narrative report or anything like that. They hate that stuff. The other thing I’d say real quick is go to your client’s house. Meet with your client. Do not sit in the comfort of your office and think you understand your client because that ain’t going to happen, man. Go out and spend a day with your client and watch how they function in their house. Look at all the compensatory strategies they have existing in their house. Are there Post-it notes all over the kitchen in their home office? Listen to what the family members say. Talk to the spouse. I think spouse is the most powerful witness in these cases, but do it without your client being present. And they will say stuff to you that’ll blow your mind. Some of the most poignant moments in any of my TBI trials are always the spouse talking about how the person that left that morning to go to work. They left as one person. They came back, completely different person. And I have a new person in our marriage here. And it’s really hard to adapt to that new person.
[47:57] Scott Blair: I still love him or her. Man, I’m not getting used to this new person that’s like a threesome, you know and that stuff is powerful. Brain is the house of our consciousness. It is who we are. And I think in TBI cases, we really have to emphasize how if you are 50 years old and you get a TBI, you spent the first 50 years of your life developing this personality who is essentially you. And the TBI alters the organic chemistry, the physical structure of the brain, the point where our personalities then get altered. Our spirit knows who we are. But you can’t get that person back. And not only does the spouse have to deal with this new person, or the family members. Plaintiff has to. And that is really hard to alter all that, you know? I think jurors get it. So I could go on and on and on. You know, I love this stuff.
[48:57] Tom Crosley: Hey, thank you thank you. I’ve gotten so much out of today’s interview and I hope our listeners will as well. If they need to reach you, what’s the best way for our listeners to reach you?
[49:08] Scott Blair: They can email me at scott at braininjurylawofseattle dot com and happy to chat with whoever.
[49:17] Tom Crosley: That concludes this episode of Winning the TBI Case: Strategy, Science, and Storytelling. I’m your host, Tom Crosley. A special thank you to our guest, Scott Blair of Brain Injury Law of Seattle, for sharing tips from his recent $8.1 million verdict in a TBI case and strategies that he uses in TBI cases.
[49:40] Narrator: If today’s episode helps you see your current case in a new light, share it with a colleague who’s facing the same challenges in a case. Subscribe wherever you get your podcasts, and join our community of trial lawyers who refuse to settle for average results. This has been Winning the TBI Case: Strategy, Science, and Storytelling with Tom Crosley.