Damages Opening Statement: catastrophic brain injury case

Injury diagram by Duane Hoffman.

Injury diagram by Duane Hoffman.

Both sides used extensive demonstrative exhibits during opening.  Basically we agreed that I could use what I wanted so long as they could use what they wanted.

The transcript is not very accurate (understatement).  The courtroom was video recorded.  If we wanted a quick transcript, at the end of the day  the bailiff would copy the recordings and provided them to a court reporter. The reporter would then transcribe from the videos with only moderate success.

Frankly, it's a bit distracting to try to read this.   At times I sound completely illiterate.  And you can't see the exhibits, Videos or PowerPoint.  Still, it gives an idea of the damages portion of opening statement.

6    This is the overview of C's
7   injuries that I'm going to talk to you about now.  She
8   had what's generally called a diffuse axonal injury,
9   meaning that there wasn't one, you know, particular --
10   there it is, that's the part of the hemorrhage that is
11   the problem, it's all over her brain.
12             It's in all of these different areas that
13   are noted here.  It's pretty much all through it.  The
14   doctors -- and you'll be able to see brain and
15   neurologists looking into the brain and showing you
16   all of the problems by videotape.
17             At this point we are going to show you an
18   animation that's not an actual brain surgery, but
19   we -- there are so many medical records; for me to
20   tell you them would take a long time and be very
21   boring, and instead, we can show it to you.
22             This was recreated, and doctors have signed
23   off on it as being what happened with Chanetelle.  I'm
24   going to do this without any explanation.  During
25   trial we'll have somebody explain this.
1             (Video playing).
2             That was the first surgery.  And what
3   basically happened, I'm not a neurosurgeon, but just
4   so you know, when the brain is injured like that, like
5   any body part, it wants to swell.
6             So in order to prevent probably death in
7   this case, the doctors have the technique where they
8   actually take off parts of the skull, and that allows
9   the brain to swell beyond, you know, the head, where
10   it needs to go, and then eventually it will go back.
11             And that happened.  They actually put the
12   skull in a freezer, a piece of it in a freezer, and it
13   stays there for, in this case, about half a year.
14             So this is going to be the second surgery of
15   this procedure.  There were lots of other surgeries,
16   and I'll talk to you about those later, but this is
17   the second surgery on putting the skull back.
18             (Video playing.)
19             It's amazing, surgery, and -- they were able
20   to put most of it back together, but you can see it's
21   not quite all the way.
22             Looking at the damage to C's brain
23   is an interesting medical feat.  There is a
24   neurologist who is -- has a very, very high quality
25   brain imaging beyond MRI.
1             And this is kind of Greek to some people,
2   including me, but I have a blowup here.  And MRIs are
3   kind of like, they take slices this way, so it's kind
4   of -- you're not seeing a three-dimensional, and
5   that's why there's so many of them.
6             So, for example, what this shows are pretty
7   much black holes.  The black holes are where the brain
8   hemorrhages were that have permanently damaged the
9   brain.  And these, again, are scattered all through
10   C's brain.
11             But I just wanted to pull one so you could
12   see it.  There will be more testimony on how her brain
13   was injured from a scientific standpoint.
14             C was in a coma for five weeks at
15   Southwest Medical Center.  She has had a very
16   difficult course of treatment and came close to death
17   many times.
18             She is, you know, a miracle, because in
19   April they were going to put her in a, basically, I
20   don't know a better word to say this, but more like a
21   warehouse type of place where a person that's
22   completely non-responsive goes, you don't need therapy but
23   they'll care for you.  It's a hospital bed where -- so
24   she'd been stabilized by this time.
25             And I think it was the morning that she was
1   destined to be moved, she startedtalking -- it's in the chart
2   notes, and it's quite remarkable, that that was one of
3   her miracle points, and changed the course of what
4   she's able to do today.
5             This is C, this is when she
6   has had -- her skull piece is not there, so you can
7   see that her temple is sunk in.  This is her long-term
8   boyfriend, who is still her boyfriend and fiancé,
9   J.
10             Because of the coma, and then how she's been
11   able to recuperate and what she's left with,
12   C is appearing in this case under her
13   guardian, KB is here.  He won't be here
14   during the entire trial due to his commitments because
15   he's a full-time guardian.
16             He's appointed by the court to authorize
17   this litigation, the hiring of Mr. J.  And
18   this -- and basically, at this point, to manage every
19   single aspect of C's life because she did
20   not -- she was incompetent to do so, in part because
21   of the coma, and then her severe restrictions after.
22             So I'd like to talk about some of these
23   injuries.  These are hard to read, but we're going to
24   be going over them quite a bit.
25             Do people want to stand up while I do this?
1             THE COURT:  Do you need to set up?
2             MS. KOEHLER:  I just need to get it, and
3   then set it up.
4             THE COURT:  (To the jurors)  Did you want to
5   stand up for a second?  You're welcome to.
6             MS. KOEHLER:  So these are the injuries that
7   she suffered.  And I'm doing it this way rather than
8   showing you, literally this many medical records,
9   piece by piece.  So we already talked about the
10   traumatic brain injury, which is the most severe
11   injury.  She --
12             THE COURT:  Do you need a laser pointer?
13             MS. KOEHLER:  No, I'm okay.
14             This is a little bit bigger, so you could
15   see it a little bit better.  She was obviously not
16   able to function without mechanical equipment, so she
17   agreed, through a tracheotomy tube that was placed,
18   and you'll see that she did have a recurrent lung
19   collapsing.  Unfortunately she got MRSA.
20             She had right-sided rib fracture, she had
21   problems with her lungs, fluid buildup in the lungs,
22   she had -- her spleen was lacerated from the
23   collision.
24             She had major problems with her feeding
25   tube.  To this day she has -- she literally has a scar
1   that looks about like this, maybe it's a little
2   taller, it's a big -- it's very thick.  Because they
3   had to do so many operations on that feeding tube, it
4   got infected.
5             She just -- that was -- it was almost
6   life-threatening at times, it was very, very
7   problematic.  Peritonitis, which was the infection,
8   she has septic shock, recurrent urinary tract
9   infections because of the catheter injuries, and she
10   also ended up having a blood clot.  This was just a
11   very sick gal.
12             So let me go to the surgeries.  And this is
13   a little bigger.  These are just representatives.
14   This is of what would generally happen.
15             So the first procedure that was done of her
16   brain was to put a monitoring device inside of it, into
17   it.  You saw this surgery, the second surgery is one
18   of the surgeries that you saw.
19             She had a chest tube surgery, she had
20   feeding tube surgery, she had breathing tube surgery,
21   she had another chest tube surgery because of
22   complications.
23             On March 11 she had the abdominal leaking
24   and the sepsis and all that, so she had that repeated
25   feeding tube surgery.  She had to have lung intubation
1   on March 14, she had to have it again on March 21st.
2             And then like I said, it's about half a year
3   later, September 23rd, she had the final surgery to
4   reattach her skull piece.
5             So these are surgical procedures, not the
6   multiple other procedures that she had.  The date of
7   her discharge diagnosis -- normally when you go to the
8   hospital and you have a discharge diagnosis you have
9   one or two things.  As you can see, she had 14 items
10   on her discharge diagnosis.  I'm going to show you
11   those in a minute.
12             This is -- her day of admission was
13   February 27th and her date of discharge, which was, as
14   I told you, the miracle when she was able to not be
15   discharged to be warehoused to be rehabilitated.
16             This is a bigger version of her discharge
17   diagnosis.  So again, her admission discharge is
18   different than your discharge diagnosis, which is why
19   I'm going through this again.
20             She has a traumatic brain injury, and this
21   is their words, not mine, acute respiratory failure
22   with tracheostomy placement and also removal, right
23   pneumothorax with chest tube placement times two
24   resolved.
25             Pulmonary contusion, the fracture of the
1   right fifth rib, the splenic injury, grade 1.  Her
2   gastro tube placement.  She had a laparotomy for the
3   G-tube erosion with new placement of the G-tube.
4   Spasticity, the entire left side, greatest in the hand
5   and foot.
6             She had some other issues like dehydration,
7   acute blood loss, anemia, hyperkalemia, leukocytoses,
8   and narcotic dependence due to the pain medications
9   they were giving her, so this was as of April 3rd,
10   2009.
11             What I'm going to show you now is a video of
12   Ctaken on May 12, 2009.  So this is --
13   I need power.
14             All right, so this in May of 2009.  I
15   believe that this entire video is like an hour and a
16   half, so it's not what you're going to be watching,
17   you're going to be watching, I believe it's something
18   like four minutes, so you might see some editing, and
19   it's simply because it was an hour and a half.
20             So this is C in rehab on
21   May 12, 2009.  Let me tell you one other thing.  We're
22   going to have sound with this, and I'm not sure,
23   because this is an open therapy room, you might hear
24   therapists that are talking to C and other
25   people talking, so it might be a little distracting,
1   but I think you can sort it out.
2             THE COURT:  Would you like to take a break
3   while you work out the technology?
4             MS. KOEHLER:  He's got it, but he's got a
5   30-minute version.
6             THE COURT:  I'm going to give you the
7   morning break while we work with technology to try to
8   figure it out.  Leave your pads on your chair and go
9   on back to the jury room.  About 15 minutes, folks,
10   roughly.
11             (Jurors exit courtroom.)
12             (Recess was taken.)
13             (Jurors enter courtroom.)
14             THE COURT:  Have a seat.
15             (Playing Video.)
16             MS. KOEHLER:  My apologies.  She was
17   discharged from the hospital on April 30, so a month
18   and a week later in the rehab.  The other woman in
19   this film is K, which is C's
20   grandmother, the blond woman.
21             (Video concluded.)
22             MS. KOEHLER:  We'll be showing more pieces
23   of this.
24             For example, she's going to be working on
25   speech.  She works with a number of different
1   therapists to reconstruct her ability to do some
2   things like speech and memory.
3             You know, the reason that she can't walk is
4   not due to an orthopedic problem, she didn't break
5   bones and she's not paralyzed from a spinal cord
6   injury.  She's got a very severe brain injury.
7             You probably don't know very many people
8   that have a brain injury that has resulted in
9   paralysis and spasticity of parts of the body.
10             The way that this works is the primary blow
11   is to the right side, and that correlates to the left
12   side being, for whatever reason, I don't understand it
13   myself, that's the side that is paralyzed and spastic.
14             She's wearing the helmet, and she does that
15   until she gets her brain -- sorry, her skull put back
16   together, so it's a protective device.
17             C, I can't remember exactly --
18   we're getting closer to the end, so I'm trying to
19   remember exactly what's on my machine, but she was not
20   able to walk much better than this after the hospital
21   and getting through all of this rehab.
22             Washington State and Oregon do not have a
23   specialized inpatient program for people with severe
24   brain injuries that's devoted to that, this is more
25   general kind of therapy.
1             So for that reason, her guardian authorized
2   her to go to a brain injury specialty center in West
3   Virginia.  And she did that in between November and
4   December of 2009.
5             They wanted to keep her longer.  You'll meet
6   C, and you'll see that she is -- she is a
7   forceful personality.  She does not want to stay away
8   from her family and she wanted to come back here, but
9   she did stay for a full month.
10             And when she left, she was able to walk.
11   Maybe not like you or I, but she was able to walk.  So
12   it's gotten -- it eventually -- brain injuries, you
13   can progress with or without hard work if you're
14   lucky, and then you plateau after I think --
15   the doctors will say two years after an injury, you're
16   pretty much as good as you're going to get, although
17   you can always work to strengthen and do that.
18             So she made remarkable progress from the
19   time she was discharged and then for the next two
20   years.  She really did do well.  But there's a feeling
21   on how well she can ever get.
22             So in February of -- the date's on the next
23   page.
24             MR. SCARPELLI:  January 2011.
25             MS. KOEHLER:  January 2011 she -- a company
1   that was part of her guardian went back to court.  She
2   was no longer comatose and she was no longer in a
3   rehab facility.
4             After she left Virginia she came back to
5   stay with her grandmother, and then she and her
6   boyfriend, J, moved out into an apartment for a
7   while -- it's back and forth from the grandmother to
8   this apartment to the grandmother, but for a while
9   they had an apartment.
10             And she went back to court to have some of
11   her rights restored, because you'll remember when the
12   guardianship was entered, it was a complete
13   guardianship because she had just come out of a coma.
14             So these are the rights that were restored
15   to her.  She can vote, she can possess a license to
16   drive, though she doesn't, she can consent or refuse
17   to medical treatment, she can decide who will provide
18   care and assistance to her, and she can make decisions
19   regarding her social life.
20             This is what she still cannot do.  She
21   cannot marry or divorce, she cannot enter into a
22   contract or make or evoke a will, she cannot appoint
23   someone to act on her behalf, she cannot sue or be
24   sued other than through her guardian, she cannot buy,
25   sell, own mortgage or lease property, and the guardian
1   continues to have access over her medical records.
2             In other words, what happens is that the
3   guardian manages most of her affairs.  She gets, for
4   example, an allowance.  She has difficulty managing
5   anything.  And we'll hear from some other people that
6   work with her on a regular basis as to how challenging
7   that is.
8             Let me tell you a little bit about
9   C before I finish here.  C was born
10   to parents who were not the best.  Her father has
11   definitely gotten better as he's gotten older.  He's a
12   source of a parental involvement now in her life,
13   whereas in her childhood he was absent.
14             Her mother, I think she -- I think C has
15   seven brothers and sisters, all of whom have different
16   fathers, so there are a lot of half-siblings.
17             Her mother did not maintain a household for
18   the children that was regular, so C was moved, for
19   example, periods of homelessness on top of it.
20             So she did not have the privilege of going
21   to an elementary school and a junior high and a high
22   school in the same -- you know, like our children do.
23   It was constant upheaval and difficulties with her
24   mother.
25             Regardless of all that, I call C --
1   and I think that the words to me that describe

2   C is that she's just truly got true
3   grit.
4             She dropped out of high school, but she took
5   her GED.  She was tested early in the third grade, and
6   then not ever tested again for things like IQ.  Her IQ
7   was normal, it was average.  And she passed her GED,
8   which does take some brain power to do.
9             And at the time of this collision she was
10   living with J.  They had gotten an apartment
11   together, and she was -- had a part-time job providing
12   childcare for a woman with an autistic child.
13             Her passion in life is children, probably
14   because she spent her life taking care of her younger
15   brothers and sisters.  That's what she wanted to do
16   with her life was -- her big dream was to own her own
17   day care.
18             That was -- that, to her, would be
19   absolutely the best thing of life.  Who knows, because
20   she was 18 years old when this happened.
21             So as a brain-injured person now, there's a
22   little different issue going on.  Her true grit is
23   still there, and you'll see it, but there's something
24   else that's there, and that is that she's no longer
25   the same person.  You can still see bits and pieces of
1   her, and if you're with her for an hour, you're going
2   to be drawn by her.
3             But what you see for a short period of time
4   is not what you get with C.  She has a
5   lower IQ, she struggles very hard to not show any sign
6   of being injured at all.
7             She doesn't acknowledge that she's injured,
8   she doesn't want to be injured, she doesn't want to
9   act like she's injured, she doesn't want to have
10   anything to do with being labeled an injured person,
11   and that is probably  the reason that she's able to
12   walk.  She just really, really, really did not want to
13   have her life change from this, and really struggled
14   to get better.
15             But there's some problems, because she's
16   reached that plateau point where she's not getting --
17   she's not going to see that day, the miracle moments
18   are gone.
19             One issue she has that's rather severe is
20   that she was injured in her temporal lobe.  She's got
21   major emotional -- and we will look at them as
22   emotional problems, but they're not just -- you can't
23   go to counseling and fix this problem.  She cycles up
24   and cycles down very, very fast, escalating to anger.
25             She's verbally abused everyone in the
1   guardian's office.  She -- she is sweet, and in an
2   instant goes another direction.

20             I told you during voir dire that there are a
21   lot of expenses involved in this case, and I know that
22   it sounds like a lot of money, and it is.  We didn't
23   create how much it costs to keep someone alive
24   following a collision like this.  She didn't choose to
25   go to the hospital.
1             Her past medical expenses are $733,000, just
2   for her past medical expenses.  She is not going to
3   work again.  There have been suggestions that maybe
4   she can volunteer somewhere, maybe she can find
5   periodic -- some type of employment.  Because of her
6   volatility, working with ...

16             And I'm not doing the math, but there will
17   be people in here to talk about that.  And her wage
18   loss for a lifetime, even at a very low rate of pay,
19   she only had a GED, she wanted to work in childcare,
20   is still somewhere around $2 million.
21             The bigger amount of money is the amount
22   needed to care for C.  She has caregivers.
23   She's had caregivers that were hired way more than
24   they are now.
25             One of the problems that we're seeing, the
1   guardian will talk about, is that she's not having
2   enough care.  Her house is becoming
3   unmanageable-looking.
4             She's got very poor hygiene, she doesn't eat
5   right, to the point where she's had to go to the
6   doctor for digestive problems.  You told her to eat an
7   apple, she eats like she's a 13 year old boy.
8             So there's caregiving expenses needed for
9   her, and those are going to be projected for you.
10   There's a big range, and I'm not going to even get
11   into why there is a range, but our job is to make sure
12   that there's enough money, if liability is found, to
13   take care of her.
14             This is the last video I'm going to show you
15   of C.  As I told you before, if you
16   spend a few moments with her, you will find her charming, and
17   if she's in a good mood, you probably won't know that
18   there's a problem.
19             Try to take her out to dinner and there's a
20   piano playing and people talking, and you'll see she
21   won't even walk into the restaurant.  She can't deal with any kind
22   of multiple sounds or distractions.
23             She just cannot -- she's just not able to
24   function like a normal person, even though she tries
25   her best to look like one.
1             She's had her deposition taken two times in
2   this case, and the last time -- and a deposition is
3   when your sworn testimony is taken by the other side,
4   in this case the defense, and her last deposition was
5   taken almost two months ago.
6             And I want you to see that she has made
7   progress, she's not like the person that we saw in
8   May.
9             I would like you to notice -- I'll tell you
10   what she has is she still has a footdrop, she has
11   difficulty walking, the left side of her body is
12   paralyzed, she has very little use of one of her arms.
13   And this is just to show you the brain injury can be
14   seen here.
15             (Video playing.)
16             MS. KOEHLER:  Thank you