Guest Kenny Berger and Traumatic Brain Injury Damages
Prepare yourself to embark on an enlightening journey into the realm of traumatic brain injuries (TBI), where science, law, and humanity converge. With Kenny Berger, a seasoned plaintiff’s personal injury lawyer from South Carolina as your guide, you’re guaranteed to gain a deeper understanding of the human elements in each TBI case. Kenny’s insights, drawn from his extensive experience representing TBI clients, will help you comprehend the far-reaching effects of brain injuries on all aspects of a client’s life.
In this episode, we’ll navigate through the intricacies of building a case for TBI, discussing key elements such as documenting symptoms like confusion, dizziness, and altered mental status and the significance of eyewitnesses. Kenny emphasizes the importance of establishing contact with individuals who the client may have been in touch with within 48 hours post-incident.
Moreover, we discuss the timeline of brain injury recovery and explore the value of sensitive imaging. Kenny also generously shares invaluable resources for those keen on learning more about brain injuries and neuropsychology. Get ready to embark on this enlightening journey as we unpack the complexities of traumatic brain injuries.
In this episode, you will hear:
- Exploring traumatic brain injuries with Kenny
- Understanding brain injuries and memory loss
- Understanding the impact of brain injuries
- Timing in court cases and brain damage
- The importance of neuropsychological assessment
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Supporting Resources:
To learn more about Kenny Berger visit his website: https://www.bergerlawsc.com/
To listen to Kenny’s podcast, Best Practices with Kenny Berger, listen here: https://www.bergerlawsc.com/reports/berger-law-best-practices-podcast.cfm
Episode Credits:
If you like this podcast and are thinking of creating your own, consider talking to my producer, Emerald City Productions. They helped me grow and produce the podcast you are listening to right now. Find out more at https://emeraldcitypro.com Let them know I sent you.
Episode Transcript:
Elizabeth Larrick: Hi there, it’s Elizabeth. I wanted to pop in very quickly to introduce my guest, Kenny Berger.
Kenny Berger is a plaintiff’s personal injury lawyer. He operates his own office over in South Carolina. He’s got an office in Columbia and Myrtle Beach. His [00:01:00] office operates with many personal injury areas, including workers comp. So if you have a case or questions about South Carolina, be sure and reach out to him.
His contact information will be in the show notes. Hello and welcome back to the podcast. I’m lawyer Pratt. With me, your host, Elizabeth Larrick. Today, we have a special guest joining us all the way from South Carolina, and we are going to talk about traumatic brain injury clients. Now I know most folks through your tuning into this podcast have a litigation docket.
And if you don’t have a TDI client, because I know there’s a lot of employment law and transaction law and other things. This is still a really good podcast to tune into if you have a case that comes your way. So you can kind of identify it, get it to the right place. And a lot of times, I think what is coming out as well is that the more we learn about TDI, the more we recognize.
We’ve all probably had some kind of concussion in our lives. So [00:02:00] always helpful to learn more about that. But enough of my jib jab, Kenny Berger, thank you so much for joining the podcast and welcome.
Kenny Berger: Thank you for having me on. It’s great to be here.
Elizabeth Larrick: Fantastic. So Ken runs a personal injury law firm down in South Carolina, and I want him to come and talk specifically with us today on this episode about.
traumatic brain injury. Now, we’ve never super dived deep into a specific type of damages. So, I’m excited to have you. Kenny, I know that you talk a lot about this at CLEs, Continuing Legal Education. There’s a couple of those topics I know on your website. So, I’m just going to throw it over to you. Kenny, tell us a little bit about TBI and how you got interested in helping these folks.
Kenny Berger: Yeah, thank you. So you’re right, if you do any type of personal injury, or even if you don’t, the likelihood of coming across somebody in your lifetime, friend, family member, colleague, [00:03:00] who has suffered a traumatic brain injury, these things are all just good to know, but especially folks who do personal injury, I think you just, you’ve got to be familiar with traumatic brain injury, and my goal today isn’t to, to do a deep dive in the science and kind of learn anybody, um, um, what As we go deeper into some dark abyss, but more just to point out some of the, what I think are real keys to unlocking what I call the power of your TBI case.
And by unlocking the power, what you’re really getting at is the dun da da dum, the truth, right? Getting to the core of the matter, the quote, what’s really going on. Yeah. And the way I got interested in these cases is neat. And there’s a connection here, Elizabeth. So 11 or 12 years ago, something like that.
I was out in Las Vegas at a reptile depositions. Seminar and this was in, I think maybe 2012 and I’m in line and the 2 guys in front of me looked familiar. We’re going to launch on 1 of the [00:04:00] breaks and the 2 guys look pretty familiar. Turns out there are a couple of lawyers from South Carolina who ended up becoming good friends.
My guy named David Yarbrough and William Applegate, and they’ve just. It’s been tremendously successful, great guys, but we ended up eating lunch together and there was another attorney with us, a lawyer from California whose name I can’t recall. But at lunch, the three of them, William, David, and this attorney from California gets talking about brain injury cases.
And as they’re talking, I’m realizing, wait, a friend of mine had just called me about a case that sounded very similar to what they’re describing. So after lunch, I got into the hallway and I called my buddy and I said, Hey, that case we were talking about, what are they offering you? It’s like they’re offering 50, 000.
I would, I’d take 60. I said, how much coverage is there? He was like half a million. I was like, whatever you do, don’t settle your case. I think it’s a policy limits case. And he was like, well, how so? And I was like, I think your client has a brain injury. I’ll tell you all about it when I get back from Vegas.
Well, what I then proceeded to do over the next couple [00:05:00] of days, in addition to going to the deposition seminars, I was learning as much as I could as quickly as possible about brain injury cases. And the fellow he was representing absolutely had a brain injury. There was just no doubt. He was different in terms of personality.
He was different in terms of memory. And attention and concentration. He was different in terms of his mood and his ability to control his anger. He was just a different person. And that’s what so many people describe. So I ended up representing that young man. And along the way, what I learned is. You had to know the medicine.
You had to know the science. That was true, but it was just such a human story. It impacted every part of his life, every relationship he had. And along the way, you know, I really got to know him and care about him and care about this family and his life. Elizabeth was a mess, a mess on the way. Up to Columbia from where these folks live down in Aiken, South Carolina.
And he and his wife had an [00:06:00] all out fricking world war three kind of argument. It was just, they show up and when they get here, he’s red face, she’s crying. It’s like, what’s going on? And it was exactly what people with brain injuries and their spouses experienced, and we had to take, luckily we’d prepped them and we sat down and again with them where the deposition started and more than anything, just worked to get everybody calmed down.
But that was again, 11, 12 years ago, something like that. And, and over the last decade and a little bit of change, we just took a real interest in, in not just brain injury cases, but the brain injury population. That’s one of those things where it’s the type of injury kind of like other ones, but it could happen to any of us.
Right. And I’ve watched what people go through from folks who would be considered kind of just working class. Hard Scrabble background all the way up to corporate executive lawyer types with brain injuries and everyone in between and to a person, they’re all [00:07:00] impacted just in a full scale, often hidden, often very apparent kind of way that certainly calls for help, perhaps above all else.
And yeah, that’s the short skinny on how I first got involved in it. I guess it wasn’t that short or skinny, but that’s how I got involved.
Elizabeth Larrick: Yep, those deposition seminars, like, I still remember, like, those were my first reptile seminars. I still remember all the people that I met. I’m still in contact with them.
But it’s so amazing, like, you mentioned all the backgrounds of people, and just, I think what also is so different is every TBI is so different. You named off some pretty traditional symptoms, but having worked in the field, like you see so many different flavors or symptoms and it’s just like, wow. And like you said, it’s hidden, but it’s apparent, like the people around them can see it, or maybe just a little bitty small things that I think the science and the recognition [00:08:00] when we run focus groups.
People are much more familiar with it. And like, there’s definitely some language that people can talk about it a lot better, but I still feel like there’s a pretty big gap in knowledge for people having an in depth understanding about what it is. Is that kind of the way that you feel too?
Kenny Berger: I think that the challenge is helping people understand that what may have started with a, quote, concussion could have these kinds of ramifications.
So one of the things I think you absolutely have to do is show that the mechanism of injury was sufficient to cause something terrible. Because what you’re showing is kind of the snowball effect, or at least you’ve got to show that the mechanism of injury was enough to light the match. very much. Right.
I think if you’re dealing in a case where you’ve got to get a biomechanical expert, or you’ve got a car accident case or car wreck case with no property damage, [00:09:00] and you’re claiming millions and millions of dollars in damages based on a TBI, I think you better be darn certain that something can be shown that if on the one hand you’ve got this raging fire That people understand that whatever caused that raging fire again was at least enough to get the match lit.
And what I tell folks a lot for me that the absolute start point is establishing that the client suffered a traumatic brain injury. Like just that’s kind of an easy elementary point. It’s like we have, of course, but I think that opens the door. To, to so much else. And when we talk about a brain injury, the person doesn’t have to lose consciousness.
The person obviously doesn’t have to have findings on a CT scan or an MRI scan. What you need to have based on the Brain Injury Association of America or CDC or the DSM 5 or really anything again, not to go too into the weeds, but it’s real simple. There has to be some alteration in brain function.
There might be [00:10:00] confusion. There might be some amnesia surrounding. The event you just have to show there was some alteration and brain function. And a lot of times it’s like, well, how do you do that? Cause you’ll see a medical records. They didn’t lose consciousness. And then later on, they say they did lose consciousness.
Well, most of the time asking someone if they lost consciousness is like asking what you forgot yesterday. I don’t know, I only forgot. So there are ways to deal with that and one of the really simple ways to deal with it is to say, all right, what’s the last thing you remember before the, we’ll just say impact.
Do you remember the impact itself? What is the very next thing after that? And the very next thing after that, the very next thing after that. And typically what you’ll find is there are pretty significant gaps in someone’s memory, which is again, by definition, post traumatic. Amnesia. And a lot of times by the time the EMTs get there, by the time someone gets taken to an ER, they’re alert.
oriented, [00:11:00] but before the EMTs get there, they may not be. So if they had a passenger with them, if somebody came up to their window, we hear that a lot, right? What’s the next thing you remember? I remember somebody at my window. What do you remember between the impact and someone at your window? I don’t remember anything.
Well, you get in touch with the person who came to their window. What do you remember about them? Ah, they looked a little dazed. They were kind of out of it. Again, you start checking off those boxes where by definition, even if you can’t document the loss of consciousness, you can certainly document the dizziness, the confusion, the altered mental status.
The fact that on some level, their brain function was altered due to trauma. It could be a rear end collision that knocks their brain back and forth real quick, which is known as coup contrecoup. It may be they got hit in the head directly by something, but just remembering that if you can simply, and you must, I believe, establish by definition that this person had a traumatic brain injury, it really opens the door and kind of lays the foundation [00:12:00] for whatever other damages may be costly related.
Elizabeth Larrick: Sure, and I think like that’s that whole causation and like you mentioned the mechanism of injury mechanism of event that forward and backward that is true battleground right there and that’s most time when you have a TBI case and the ER records are pretty much unhelpful like that’s the battleground that the opposing counsel is going to go after which is it’s fine it’s great you know they didn’t have to go to the emergency room or if they did so I think that’s really probably one of the hardest parts And I’ll just speak for myself, when I did have a litigation docket, like, I would get cases that, like, they did probably have one, but nothing was documented.
And so there’s this gap where they’re having all these symptoms, but Nobody’s marking it down or the chiropractor marks it down and it like that’s as far as they get. So you did such a good job going through like at the scene and like trying to get that particular type of information and symptomology, but yeah, [00:13:00] what else would there be?
Kenny Berger: And I’ll tell you, we try to get people to tell us everyone they talk to. Or came in contact with for like the 48 hours following. Because again, a lot of times the EMS records suck. The ER record sucks. And they suck because the person’s life isn’t in danger. They’re going to live. They just want to rule out a brain bleed.
They rule out a brain bleed. They send them home. And one thing to know is in the ER record, it says, or the discharge paperwork, it says, Hey, if you get worse, if any symptoms persist, go see a doctor. So that’s one thing, if they come to see you and they haven’t seen anybody, you can be like, Hey, did your ER records say if your symptoms persist, come back to them or go see someone?
They’re like, yeah. I’d be like, wow, that’s probably a good thing to do. But we always want to find out who did they talk to, right? Like, did they call somebody from the scene? A lot of times they’ll call the spouse or the parent. And so you want to talk to the spouse or parent. And we had a case recently where the spouse was like, yeah, Joanna kept calling me.
She called me. Three times she [00:14:00] called me. I’d hear some stuff. She’d be gone from the line. Call me. And I got real worried. And finally, I got in touch with her and she sounded kind of garbled. She didn’t really sound like herself. I couldn’t tell what was going on. And I was able to make out that she gotten in a wreck.
Does that win your case? No. Is that great evidence? It’s not great evidence, but it’s just one more thing. One more person who can testify to the fact that from the very outset, right? Like from the very outset, this person was not the same mentally. Something happened. Their brain was not working the way it did before they were struck.
They meet the definition of brain injury. And here’s here are things we know about brain injuries. And you can go down a whole litany of things about brain injuries. And the fact is, when it comes to concussions, which is just a type of brain injury, when it comes to concussions, which are known as mild traumatic brain injuries, that’s just a crappy medical classification.
for the initial injury. It doesn’t mean the consequences are mild. It doesn’t [00:15:00] mean the symptoms are mild. It doesn’t mean the impact on someone’s life is going to be mild. There’s nothing mild about losing a marriage. There’s nothing mild about losing your job. There’s nothing mild about falling into depression, becoming suicidal, all these things that are often consequences of someone having brain damage are not mild.
So you can kind of, you can work to disabuse people of the whole notion of mild. But the fact of the matter is a lot of people. You know, substantial percentage get better, make a full recovery, and that’s wonderful. What we often look at, though, is what are the similarities between people who don’t get better and what type of symptoms do they have?
What type of consequences do they live with? So rather than comparing a population of people who didn’t get hurt to people who did, we want to show the population of people who did get hurt, what the similarities are. And in that setting, you find some textbook presentations, some classic presentation symptoms.
But like you said, there are also some [00:16:00] individualized aspects because everyone’s lives are different and oftentimes TBI’s affect every area of a person’s life. And because of that, the impact on individuals varies. One of the added challenges in TBI cases is obviously that people typically look okay.
They talk okay. If you spend two hours with them, it doesn’t really seem to be a problem. If you spend two days with them, the problems become very clear, very pronounced. Because of that, we found over and over, the people who are best positioned to tell that damages story are the waywitnesses, right? This is stuff that David Ball was talking about.
15 years ago or more, but the people in a person’s life who are best positioned to tell the damage of the story, typically it’s not the person with the brain injury. Oftentimes they’re in denial. There’s still stigma that surrounds head injury. So in our experience, we want to go through a typical day and a typical week [00:17:00] and find the people that our client interacted with and talk to them.
We want to go on Facebook and find out, Hey, who’s that person on Instagram? Hey, who’s that person you’re doing that with? If someone says they loved going. Fishing. That’s a common one in South Carolina. Okay. Who’d you used to go fishing with? Get in touch with that person. Find out what’s different.
Obviously the more removed you can get from the financial interest. The better, but if you’re just hanging your hat, I think on the client to tell their brain injury story, you’re in a really tough position because it’s kind of a no win either. They sound so bad that it’s hard for someone to really wrap their head around giving.
That person money in the sense that they’re so bad, they can’t describe or substantiate what’s going on with them, or they sound pretty darn good leaving jurors think, well, heck, why is this person getting a bunch of money? So, if you want to know what they were like before and after, I’ve said it a bunch of times, the person with the brain injury is typically the last person you want to ask.
Elizabeth Larrick: Yeah, [00:18:00]
Kenny Berger: they just, they don’t typically have the types of insight in a day in day out way that the friends, family, coworkers, neighbors, associates.
Elizabeth Larrick: Yeah, absolutely. And I think you mentioned a couple of things in one was like concussion. And I hear a lot of times in focus groups, Google say, well, that’s not a brain injury.
They just had a concussion. Right. And so it’s like, there’s still this like loose. Oh, it’s different. I would, that gets better. I know this does it. And that sounds so serious to say brain injury. And I think that’s kind of where a lot of times having the before and afters. really solidifies, oh, like that, there’s so, that’s very relatable, but I think also the leaps and bounds that we have had in understanding like what it means in the brain and like having some really good, I’m not going to say animations because I think illustrations are, are wonderful.
And I think being able to describe it well also [00:19:00] is very helpful. I want to ask you a real specific question though, because I know DTI imaging has come into popularity and some people are yes and people are no. So like, how do you feel about like that kind of evidence?
Kenny Berger: Yeah. So what’s funny before we came on the podcast, I was saying, we’ve done this.
The CLE, where we go through and we talk about like, all right, establishing the injury, using lay witnesses to tell the damages to where the very next point in that is determine whether there’s physical evidence of brain damage and if there is show it to them. So, I think DTI is fantastic for the right case.
Zooming out a little bit. I think that imaging, especially. More sensitive imaging. I don’t like the term advanced neuroimaging. This type of imaging has been around a really long time. It’s just not used clinically as much because from a clinical standpoint, whether or not there’s axonal sharing, whether or not they’re tears and the brain’s wiring may be relatively [00:20:00] insignificant in terms of prognosis, diagnosis and treatment where it has application, though, is improving that there’s physical evidence of brain damage.
Most notably, And in the litigation or forensic setting DTI, I really like for the right case. If, again, if you’ve got someone, um, we’ll just say over the age of 15 or 18 and under the age of 65 or 70 DTI is wonderful. And again, what you’re looking at in a sensitive way is whether or not there’s any damage to the brains.
Wires and the brand’s wires are known as axons. Diffusion tensor imaging or DTI looks at the damage to those axons and can spit out a real pretty picture that may show almost looks like color out spaghetti noodles and on one side, you may see some long strands will say of yellow. And then you look at the other side, which should look pretty damn similar, if not identical, and those strands are missing.
And what that helps establish Is those strands which represent axons or the [00:21:00] brain’s wiring are no longer there. They’ve been sheared. In other words, they’ve been torn or ripped open. And when they’re ripped, they connect a lot of brain cells. And when that happens, the brain cells die and the brain doesn’t function as well.
So, I like DTI another type of imaging that’s not as flashy and not as many people maybe talk about, but I think can be really effective is another type of MRI. And that’s something for folks to know. DTI is just a type of MRI. There’s another type of imaging again. It’s a separate MRI setting and it’s called S.
W. I. which stands for susceptibility weighted imaging. S. W. I. The same way DTL looks for tears in the brain’s wiring, SWL looks for little micro hemorrhages within the brain. Where have there been low tears, bursts? Where is there a little bit of microscopic blood on the brain, not that would pop up like on a CT scan [00:22:00] to show a subdural hemorrhage, but where they’re just tiny little markers where there used to be little blood spots and SWI can show that.
And again, that’s evidence that’s consistent with brain injury. DTI can provide evidence that’s consistent with brain injury. You can’t say because The DTI findings were positive, or SWI was positive. That means there conclusively was a brain injury. What you can say, kind of like an x ray, if you see an x ray of a broken leg, you can’t say based on an x ray alone what caused it.
But if you give someone the information, you say, hey, they got hit by a drunk driver two hours before the x ray was taken, got thrown off their motorcycle. And when they showed up at the scene, EMS had a compound fracture, you’d say, Oh, in that case, yes, I would say the broken leg is related to the crash.
Well, if you look at the clinical history and the clinical history, someone suffered a 10 foot fall, hit their head and was unconscious for 5 or 10 minutes or wasn’t, but was [00:23:00] disoriented. Uh, and confused and you do a DTI or SWI and you see again that there’s damage to the axon or their micro hemorrhages in the brain.
It’s consistent with, with the faults consistent with their being brain damage and based on the clinical history, you’d most likely correlated a neurologist or other neurospecialist would with the actual TBI. One thing to know about that type of imaging, they’re not time stamped. Okay. Uh, so SWI can’t tell you how long ago the blood was there and left an iron deposit.
DTI can’t tell you how long ago the axons were torn, but it’s part of the larger picture. And what you know at the end of the day is there was a person who woke up one way. When they woke up that morning, they were one way. Then let’s say we got a case right now, the storage door came down on their head and knocked them out.
And after the storage door came down on their head and knocked them out, they haven’t been the same. [00:24:00] Imaging shows the imaging is consistent with traumatic brain injury. Their friends and family talk about how different the person was before and after in the following different ways in terms of their mood, personality, behavior, and cognition.
What do we think the most likely cause of that is? Well, Occam’s Razor tells us the simplest answer is usually the right one. The defense wants to overlook the fact the garage door storage door came down on the guy’s head, but it did. And when it did, it knocked him out. And ever since his life’s been different.
And that’s the reason that we brought a case against the storage door company, right? Like, so yeah, so I’ll say all that to say that, that I’m a big fan of imaging. Uh, And if you get positive findings on imaging, show them, show them through illustrations, show them through animations. But I’ll also say all this with one caveat, be weary of anyone who’s trying to sell you DTI, be weary of anyone who’s trying to sell you any type of [00:25:00] imaging, PET scans, functional MRI, SWI, the imaging, And the results really are only as good as the technicians doing the work, the normative data set that it’s compared against and the radiologist or other expert who’s analyzing that data.
So just be careful and make sure. Not that the technology can pass Daubert, which it can, but that the expert that you’re choosing to use is sufficiently qualified.
Elizabeth Larrick: Yeah, I know that there’s lots of people. When it first came out, I was like, Oh my gosh, we’ll use this people and use these people. And as happens with a lot of things that are like new and exciting for evidence and animations and that kind of stuff.
It’s so true. Like, you really want to, you want to pick somebody who, you know, knows what they’re doing and is not just going around to every lawyer convention and sponsoring everything possible. It’s just true because I think there are probably a lot of people listening who’ve been like, yeah, I did that and it turned out either I couldn’t use it or it just, it didn’t turn out to be what I needed, [00:26:00] what it needed to be.
Kenny Berger: For someone to say. Your client’s brain is abnormal on DTI, for instance, there has to be a normative data set to compare it to also, you want to be careful about what else may better explain those findings, right? Like you need to be careful on the age side that it’s not an aging brain, an atrophying brain.
That the person isn’t older and has small vessel disease, that they’re old enough, that the axons and the parts of the brain that DTI is really kind of looking at for normalcy or abnormality are properly developed. You know, it’s a great. Tool. It’s not the end all be all, but it’s a great piece of evidence kind of in the old, like we learned as kids show and tell if you can show the jury the injury, if you can show them the brain damage, right?
Like, a lot of times we’ll talk about. Look, what happened to them was a traumatic brain injury. What they’re left [00:27:00] with is brain damage. And now we’re going to show you the brain damage. So if you can show them the brain damage and show that the parts of the brain that were damaged are consistent with and medically correlate.
Great. With the changes in their life, which is something neurologist or someone else can explain, then you’re just, you’re further layering the evidence again and also utilizing those lay witnesses. So it becomes a situation where you’ve got a TBI to start with. You’ve got people who are talking about how different they are.
Now you’ve got imaging that shows why. They’re different. So you’ve got how they’re different. Now you’ve got the why they’re different and you’re able to show it to the jury, which I think kind of leaves you more to how much you’re going to get setting versus whether or not you’re going to get a result.
Elizabeth Larrick: So let me ask a question about timing because you said not every case. It needs to have like this kind of imaging, like, when are you, like, when are you thinking about this? And when are you making that decision? Because I know again, playing this person, [00:28:00] your lawyers were pretty cost conscious because we’re, we got it.
So when are you kind of making these decisions and when do you pull that trigger?
Kenny Berger: That’s a great question. The classic, it depends, right? Typically in my experience, people who are going to get better, who are going to recover, do so within about 10 or 11 months. Okay. The rule that most people follow is 12 to 24 months from what I’ve seen over and over.
People are pretty much as good as they’re going to get it at 10 or 11 months. With that said, I’ve seen a lot of people make substantial improvements between 6 and 9 months. I’ve seen people who are. Messed up as a football bat after a month or two, and you’re thinking, my God, their life’s pretty much fricking ruined and it’s six and nine months, they’re 95 to 99, maybe 100 percent better.
Be careful. I typically wait until kind of that nine to 12 month mark, unless we’re pretty darn certain [00:29:00] the results are going to be positive. I’ll give you an example. Let’s say a client has positive findings on CT. Right. And, and they’ve got, uh, subdural hemorrhaging, or they’ve got subarachnoid hemorrhaging, but they’ve got, they’ve got blood on the brain.
Right. In those situations, depending on one’s kind of a better idea on coverage and some of the other moving parts of your case, uh, in a case like that, we’d probably send them a little sooner to show not only was there an initial finding of a brain bleed, because the defense can be like, well, they had a brain bleed, right?
Yeah. And it got better. Correct. Correct. And when they came back in and on this MRI, this caught MRI, the brain bleed had resolved. Correct. Correct. Yet they were still complaining of their symptoms. Isn’t that true? Yes. Despite the fact that the brain bleed was no longer evident on imaging. Correct. Because what they’re trying to do is say, because the blood [00:30:00] had been absorbed, the person’s no longer hurt, which is crazy medically.
But in those situations, again, if you’ve got good coverage, good viability, likeable client, compelling story. We’d send them out for more sensitive imaging, including DTI, to show what else was going on inside the brain that, again, is consistent with the initial skull fracture or brain bleed. Because then you can say, look, their skull got fractured, their brain bled, and they have permanent brain damage.
Now let’s look at the ways their life has been altered and what’s been taken because of the brain damage. And again, the brain damage all goes back to when the defendant chose to do X, Y, and Z.
Elizabeth Larrick: Yeah. Yeah. That makes a lot of sense. And I know the other, the third option there is people just wait way too late in litigation.
And then it’s just, then it looks like it’s a little bit more manufactured. Like you fall into a different set of problems. Sometimes we wait too late.
Kenny Berger: A big time. And with that said, if it hasn’t been done, you know, [00:31:00] cause sometimes we won’t get a case until a year and a half, two years into it. And in those situations, so long as there’s Enough medical evidence along the way or enough other people besides the client and their spouse to talk about what’s been different over the last 18 months or two years.
We won’t rule out doing the more sensitive imaging, but it does come with it. If the only thing we have is they treated for 2 months. Then they came to us and then the lawyer referred him to somebody and lo and behold, there was, you know, an alleged brain injury. That’s a tougher sell. I’d be more wary of that.
Elizabeth Larrick: Yeah. Yeah. Well, Kenny, you’ve been super generous with your time, but I know there’s a lot of people who are like just learning about it and obviously there’s lots of different, what is a good resource for them? Like what’s a good book? I know that there are lots of books out there on concussion and stuff, but what are some that you would recommend to people or.
Maybe they’re just learning or people [00:32:00] who like maybe want to get their knowledge just based a little bit further down the road.
Kenny Berger: That’s a great question. Before I answer it, I just I want to I’m going to answer that. But before I do, a lot of people may be wondering, like, what about neuropsych? You know, what do we do about neuropsychology?
Which neuropsych do you like or not? Like, personally, I don’t like neuropsychology. I try to stay away from neuropsychology if I can. I don’t think it’s necessary. If you’ve got an initial injury, I You’ve got people from the human beings life. You can talk about how their life changed at the exact same moment in time.
Their brain was damaged. If you’ve got a neurologist who can clinically correlate those things, and especially if you’ve got, uh, imaging, traditional CT, traditional MRI, or some of this more sensitive imaging we talked about at that point, you get a neuropsychologist. So the defense gets a neuropsychologist.
And then there’s a day of testimony about the MPI to just like, [00:33:00] what, what are we doing here? That’s not a knock on neuropsychologists. That’s not a knock on the field of neuropsychology. It’s just in terms of case presentation and persuasion. I just, I don’t know that we need the Wisconsin card scoring test.
If you can point to an image and show where their brain is damaged. Uh, but if someone wants a good resource, I here’s what I’d say the best resource I’ve found. Is a traumatic brain injury litigation group? It’s the seminars that this group. I’m not talking about age. A is an entity, but specifically within this litigation group, you’re going to meet a lot of the what I think are just the best of the best.
Uh, you’re going to meet a lot of, I think, the best cutting edge doctors, lawyers, really being at the forefront of, of what’s going on with the literature with the medical and scientific advances with the techniques on, on being able to. Best present these cases [00:34:00] in a common sense way. So I’d say from a resource standpoint, the absolute best thing that someone could do is join a chase tbl litigation group and start coming to some seminars.
If there was a specific. It’s funny, I just mentioned how I don’t like neuropsych, but because it comes up so frequently, I think the neuropsychological guide to assessment or evaluation guide to assessment, 5th edition, a doctor who passed away in the last year or 2, Dr. Lezak, L E Z A K, was one of the co authors of that book.
It’s just the nurse like fifth edition that you got to have that because you’re going to deal with neuropsychologists, be it from the defense from cases. They’re referred to you in certain cases that we have. We use neuropsychologists. There are some great ones out there, but you just you got to know that stuff.
And here’s what I’d say about neuropsychology. If neuropsychology is being used to assess deficits. A deficit is the difference in how [00:35:00] someone was before and after the injury. You can’t know the difference between how someone was before and after the injury without getting an accurate baseline. So a lot of times I’ve seen plaintiff friendly neuropsychologists talk about, Oh, this person has these impairments these deficits.
Well, hey, they might’ve had those same fricking, uh, and low end skills and abilities before the injury. By the same token, I’ve seen plenty of. Defense folks basically try to claim that, that there is no difference, but they’re still average or high average. Well, fact is, before they may have been quote superior in, in some of these domains and there’d be massive deficits.
So you really got to know to, to an accurate standpoint or to really precise point what they were like before. If you’re going to be able to speak intelligibly and honestly about whether or not there’ve been any changes in their life. And I just don’t see a lot of neuropsychological exams that do that.
Elizabeth Larrick: Yeah, and we could spend a whole [00:36:00] episode just talking about psychs and it’s definitely, like you said, best way is just to kind of educate yourself, especially because you’re going to go up against one for sure with the opposing counsel hiring one, but we will put a link in the show notes to that particular title so that everybody can find it and a link to the AJ TBI litigation group.
Kenny, thank you so much for coming. I know that we’ve just barely touched the surface on TBI stuff, but I appreciate you just come and give us a little, a light touch, and I think what we focused on is probably the most important thing for people to walk away with, which is. Go to that scene, go to that exact place and find exactly what is happening in those moments right afterwards.
And that 48 hours afterwards, because that’s going to be the best place to find the evidence you need to, like you said, strike that match, right? To light that fire. Kenny, if people want to get ahold of you, if they have questions or thinking, you know what, I would love to have to come to my podcast or come to a CLE for my group, what’s the best way [00:37:00] for somebody to get in contact with you?
Kenny Berger: And just for reference, it’s Neuropsychological Assessment, 5th edition, again, LESAC. Best way to get in touch with me. The easiest way is probably just on my cell phone and that number. We’re in South Carolina, but we, like other folks, go all around. My cell phone number is (803) 360-6267, and then my email address, it’s on our website.
It’s Berger with an E-B-E-R-G-E-R law, SC as in South Carolina. And my email address is kberger at bergerlawsc. com. So folks can feel free to shoot me an email or like I said, call my cell 803 360 6267.
Elizabeth Larrick: And I will put a plug in here since you didn’t talk about you have your own podcast. So if people just want to come and learn a little more with the same [00:38:00] your podcast.
Kenny Berger: Yeah. It’s a good one. It’s called best practices with Kenny Berger. Elizabeth was a recent guest. Other Texas folks. We’ve had Russell button, Chris Hamilton, who got that 7 billion with a B dollar verdict. His was excellent. Russ has been excellent. We had Amy with a right, come on and talk about kind of more from a business perspective.
I’m trying to think, I don’t want to miss anyone we’ve had from Texas. It seems to me like there may be one or two more, but. Again, we’ve had some great guests from TBR stuff to truck stuff, uh, openings, clothes, case selection, all in between.
Elizabeth Larrick: Yep. Well, it’s a great podcast and I encourage everybody to go like, review it for Kenny and support the download that always helps more people find the podcast, which is what I’ll say as well for this podcast, but I will say another great way to connect with myself or with Kenny is on LinkedIn.
I know there’s always going to be some dialogue there. [00:39:00] Lawyers as well. So again, thank you so much, Kenny, for joining the podcast today and we’ll put all that good good stuff in the show notes so people would know how to find you and find that podcast. All right. Well, this is concludes our episode.
Thanks again, Kenny. Appreciate it.
Kenny Berger: Thank you so much for having me.
Elizabeth Larrick: All right. Well, if you like the podcast, please rate, review on your favorite podcast platform, follow on LinkedIn and until next time, thank you.