Defense Attorneys Vow to Challenge Technology
By Al Turco
Brain injury lawyers in Massachusetts say new MRI technology that has been gaining acceptance in the courtroom is changing how they litigate cases.
Diffusion tensor imaging, or DTI, is an advanced magnetic resonance imaging technique that can prove the existence of brain damage previously undetectable by traditional tests like MRIs, CT scans and X-rays, according to the plaintiffs’ bar. Specifically, DTI reveals microscopic damage to the pathways through which messages travel in the brain.
The National Football League and the U.S. military have been using DTI technology over the last decade to research the effects of mild traumatic brain injuries, such as concussions, which can manifest as slowed information processing, decreased attention span and memory, and psychiatric problems.
DTI survived Daubert scrutiny in Massachusetts in September 2010 when Superior Court Judge Thomas E. Connolly allowed the results of the test to be admitted in Zawaski v. Gigs, LLC, a brain injury case that settled for an undisclosed amount before trial.
Boston lawyer Andrew M. Abraham, who represented the plaintiff in Zawaski, said he is currently using DTI testing in suits pending in Middlesex County and in U.S. District Court in Boston. He declined to offer further details on either case.
“The only way DTI evidence won’t come in is if the scientist doing it doesn’t know what he’s doing,” Abraham said.
No jurisdiction has excluded the evidence, which, in addition to Massachusetts, has been allowed in Florida, Indiana, Louisiana, Michigan, Minnesota, New Mexico, New York and Florida, he added.
But the defense bar is not conceding the admissibility of DTI without a fight.
“The question is whether this will become the standard or go the route of debunked techniques,” said James T. Murphy, a member of the Federation of Defense and Corporate Counsel.
‘Ripe for Challenge’?
Murphy, who practices at Hanson Curran in Providence, said there is a distinction between “the science that sees things” and “the science that understands things.”
“DTI lets us see things that are infinitesimally small,” Murphy said. “But does that mean the injury came from a rear-end collision or something else?”
William J. Flanagan, a defense lawyer at Morrison Mahoney in Boston, said he has yet to encounter DTI testing in a brain damage case but that the technology “seems ripe for Daubert challenge.”
“I would absolutely want to question how reliable the DTI test is,” Flanagan said.
Meanwhile, Walter G. Latimer, a practitioner at Wilson, Elser, Moskowitz, Edelman & Dicker, said though he was unsuccessful in keeping DTI evidence out of two federal cases he defended in Florida, he urges his colleagues in Boston and around the country to continue challenging the evidence.
Latimer said it is a battle worth fighting because DTI technology “can’t correlate an injury to a functional impairment.”
The argument is that even if an accident caused someone’s brain to change at a microscopic level in an area associated with memory, the change may have nothing to do with why the person has become more forgetful.
Around Since 1996
Robert T. Karns represents brain injury plaintiffs in Massachusetts and Rhode Island and is about to put DTI to the test in a R.I. Superior Court case.
Karns said defense attorneys view the testing as experimental even though “it’s been around since 1996. Rhode Island Hospital regularly does these tests,” he added.
Before DTI, practitioners were limited to presenting the results of neuropsychological tests as evidence of mild traumatic brain injury, Karns said.
“We would give people tests and then compare the tests to a baseline — maybe their high school or college grades — to determine the cognitive deficit,” he said.
According to Boston attorney Kenneth I. Kolpan, many brain injuries occur at the cellular level, where MRIs, CT scans and X-rays cannot pick them up.
Kolpan, a veteran brain injury lawyer, said one of his clients will soon undergo a DTI exam in preparation for an upcoming trial.
Douglas K. Sheff, a personal injury attorney in Boston, said the shift from the old abstract approach to seeing images of actual brain damage is changing the dynamic in court.
Sheff said he recently negotiated a $1.95 million settlement on behalf of a client, an outcome he credits in large part to DTI test results. The plaintiff had suffered facial fractures after falling from a roof, and Sheff’s expert, a neurologist, used the results of a DTI exam to find abnormalities in certain areas of the plaintiff’s brain consistent with mild traumatic brain injury.
Sheff said though DTI is only part of the puzzle, it is key in brain injury litigation.
A DTI exam is critical to the first step of finding brain damage, Sheff said. Neurologists or neuroradiologists read exam results to determine the existence of damage and its location in the brain. The location of damage suggests what functions may be affected; further testing is done to confirm the DTI findings.
“We use biomechanical evidence in step two,” Sheff said.
By combining evidence about where the brain would have been injured in a specific accident with the brain damage identified in step one, Sheff said he can present a reliable version of what happened.
Sheff said he is confident that the test, ultimately, will be widely accepted. “In five years, everyone will be using DTI technology,” he predicted.
