What Will My Brain Injury Lawsuit Be Like? Anatomy of a Civil Case in Texas
Every new client asks, “what can I expect once I sign up with you?” After hearing this question so many times, I decided to put my answer into writing for all new clients and potential clients to see. The outline below uses the backdrop of a brain injury case, which is a personal injury case. The litigation process generally follows the same procedural path in any civil claim.
Let’s assume you or a loved one suffered a head injury after being involved in a serious accident. Every brain injury case is different in terms of how the accident occurred and the severity of the traumatic brain injury. More often than not, however, we see traumatic brain injuries (“TBI”) that carry subtle and nuanced symptoms. While some cases involve TBI’s that are evident from medical imaging and involve obvious physical symptoms and cognitive deficiencies, many TBI’s result in subtle personality changes. These include changed personal interests, mood fluctuation, sudden lack of motivation, disinterest in activities that require focus and analyzation, and diminished personal care.
We know that many of you, especially parents of a minor who has been involved in an accident, are concerned about your loved one’s changes post-accident, but nothing from any doctor has provided you an explanation. The MRI’s and/or CT Scans from the ER visit do not show any lesions on the brain and the medical staff discharged your family member without communicating much concern for the need for further analysis. This may mean your loved one has not yet seen the proper medical providers or undergone the proper testing. If an accident involved any trauma to the head, you should have that person evaluated by a neurologist (a pediatric neurologist, if the victim is a child) and then a neuropsychologist. Our firm has vast experience in advising and assisting with the evaluation process as part of our accident case workup.
Below is an example of this evaluation and pre litigation process. This scenario and based on an actual case, but the names have been changed to protect the privacy of the involved parties.
THE INCIDENT – MINOR CHILD INVOLVED IN ATV ACCIDENT WHILE A GUEST AT A RANCH
Robby Jones, age 14 at the time of the incident, had no history of neurological deficits or orthopedic issues. He was a normal teenage boy in all respects, both socially and physically. With respect to academics, Robby was above average prior to the accident. He was nearly a straight-A student prior to the accident, “nearly” meaning he had only a couple of B’s blotting his entire academic record. Robby is barely passing his high school courses less than a year after the accident. Prior to the accident, Robby also enjoyed and excelled in baseball. He was a left-handed pitcher with and above-average fastball for his age. But he no longer plays any sports due to his sudden lack of interest and mysterious loss of coordination.
About one year ago, Robby was an invitee on ranch property owned by the Smiths for a social visit with his minor friend “Jack” and his family. The roster of attendees also included family members of Jack’s, including Grandmother Smith, the owner of the ranch. Notably, one of the family members had taken out the Smith’s ATV while Robby and Jack were at the ranch house. Robby had never operated an ATV, and Jack had only operated the same ATV with an adult accompanying him. Nonetheless, the Smith’s told Jack and Robby they could take the ATV our on their own, unsupervised. The ranch had unimproved roads with many hazards on the roads themselves and surrounding them.
In full view of those responsible for them, both boys mounted the ATV, with Jack at the wheel. As the two boys traversed the various unpaved roads of the vast property at approximately 20 to 30 miles per hour, Jack suddenly lost control of the vehicle. The ATV rolled into a ditch and on top of Robby.
Robby, who was not wearing a helmet, was crushed when the ATV rolled over him. The crash knocked him unconscious. He suffered a blow to the head in impact and only remembers Jack futilely attempting to free him from the weight of the ATV. Robby was ultimately airlifted from the ranch to Hospital, where he underwent surgery for a shattered femur. MRI’s of the head were negative.
ROBBY’S INJURIES AND OUTLOOK
Robby was treated post-accident at Hospital for a shattered femur and head pain. He also showed soft tissue damage, hematoma of the front scalp area, imbedding of foreign bodies in the scalp, ear pain, abdominal pain and distention, nausea, inability to feel urinary urgency, neck pain, joint stiffness, multiple abrasions, tenderness to palpitation in the left mastoid process, erythema to the neck, and conjunctival injection. Radiology of the head was unremarkable – nothing appeared to be wrong with Robby’s brain.
Robby underwent pelvic surgery on day 1 of hospitalization and was discharged on day 4. Robby was then bed-bound for three months, had to relearn to walk, and was not able to attend school for an entire school-year. Several months later, Robby’s family retain an attorney because they were concerned about Robby’s need for future medical care. While Robby had displayed a marked change in personality and diminished academic and athletic ability, Robby’s parents never considered the possibility of a brain injury or TBI.
Soon after Robby’s family retained our firm, Robby suffered a curious blackout at home. This event necessitated an evaluation at the ER that same night. With Robby’s neurological issue suddenly apparent, Robby’s parents sought a pediatric neurologist. A pediatric neurologist evaluated Robby and made findings that were not apparent to the ER doctors at Hospital or his pediatrician. The pediatric neurologist found numerous concerns regarding Robby’s neurological conditions resulting from the accident. The neurologist’s tests revealed Robby did suffer a traumatic brain injury along with a serious orthopedic injury.
In addition to the blackouts Robby suffered, Robby’s parents can testify that Robby had marked differences in his personality and habits since the accident. As mentioned above, Robby was once a near straight-A student with little effort, but is now barely passing his courses. He was forced to be enrolled in a homeschool program.
The neurological evaluation revealed to Robby’s parents that his injuries were far more involved than a broken leg and bump on the head. While Robby’s parents were relieved to find an explanation for his changed behavior, their concerns about his future and need for long-term medical care were amplified. This is the sole reason they hired our firm – to ensure Robby is compensated for past and future medical expenses, loss of income, and loss of enjoyment of life.
In most cases, we want to give the potential defendant and her insured an opportunity to do the right thing and resolve the case. This was one of those cases, so we sent a demand letter outlining the facts of the incident, the nature of the injuries, likely future medical care, and our changes on prevailing under the law. There is no question Robby and his family can prevail under the facts of the case.
The demand letter sets forth the following points:
We will be able to show the Smiths were negligent by failing to monitor minor invitees of the ranch and permitting an unlicensed and inexperienced minor to operate a motor vehicle without first inquiring as to his competence and condition. Under Texas law, a party is liable for negligent entrustment if (1) the owner (or someone with exclusive control) of a vehicle entrusted it to another person; (2) that person was an unlicensed, incompetent, or reckless driver; (3) the owner knew or should have known that the driver was an unlicensed, incompetent, or reckless driver; (4) the driver was negligent on the occasion in question; and (5) the owners entrustment and the driver’s negligence proximately caused the plaintiff’s injury. Endeavor Energy Res. v. Rosales, 505 S.W.3d 905, 909 (Tex. 2019).
It is undisputed that the Smiths were the owner and/or in exclusive control of the ATV. The ATV was a ranch vehicle regularly used on the property and not brought for a single occasion. Discovery will likely prove title is in the name of the Smiths or its principals. Entrustment is established simply by proving the owner permitted or acquiesced to the minors operating the ATV. Soodeen v. Rychel, 802 S.W.2d 361, 362-63 (Tex. App.—Houston [1st Dist.] 1990, write denied).
Jack, the driver in question, was reckless and incompetent because he was an unlicensed minor and inexperienced driver at the time of the accident. The Smiths knew or should have known that Jack, an unlicensed minor, with no previous experience driving the ATV, was not fit to operate the ATV. In light of Jack’s age and inexperience, a reasonable vehicle owner should have inquired as to Jack’s and Robby’s competence to operate the ATV. See 4Front Engineered Solutions, Inc. v. Rosales, 505 S.W.3d 905, 909 (Tex. 2016). But the owner did not so inquire.
Finally, there is no question Jack’s negligence proximately caused Robby’s injuries. The evidence will show Jack was operating the vehicle at excessive speeds on an unpaved road and simply failed to control the vehicle. There is no evidence some unforeseen event or intervening cause resulted in Robby’s injuries.
WHAT HAPPENS NEXT?
Of course, we hope the Smith’s insurance carrier acknowledge the risk they face moving forward and pay the demand. But sometimes even these sophisticated businesses just don’t appreciate what they will face in litigation. When that happens, we file suit the day after their response deadline and work the case up for trial. The last time that happened in a brain injury case, we settled the case for eight figures and over twice our client’s pre-suit demand, just a month before trial.
BRAIN INJURY SUIT IS FILED – LITIGATION BEGINS
If the insurance company will not settle pre-suit, we move forward with filing the brain injury lawsuit – this is typically under a negligence cause of action. The Defendant then has about three weeks to file an answer, which is typically nothing more than a General Denial that says “got it; we didn’t do it.” This documents notifies the court and plaintiff the defendant is engaged in defending the lawsuit and starts the timetables on important deadlines. The court will generally issue a docket control order that sets the deadlines for pleading, discovery, designation of experts, dispositive motions, mediation, and trial.
This is the meat of the case, and, therefore the longest part of it. Both sides will send written discovery requests seeking production of documents and answers to interrogatories (a list of questions seeking sworn responses on paper). Both sides will then request and take depositions. Depositions are sworn testimony of a witness outside the courtroom recorded by a certified court reporter. The defendant will want to take the Plaintiffs’ depositions – Robby’s parents and Robby himself, and any other witness the defendant thinks will help her case.
The plaintiff will want to take the defendant’s deposition (sometimes a designated representative if the defendant is a corporation), and all other party and non-party witnesses. The lawyers use the transcripts from these depositions to preserve testimony and cross examine witnesses in trial down the road. (e.g. “Isn’t it true Ms. Smith that you testified differently in your deposition…”). The deposition process is also good for allowing the lawyers to evaluate the strength of witnesses and the evidence as a sort of warm up to trial. If Robby and his parents offer sincere and strong testimony, the defendant’s attorney will see that and consider it a strength for the plaintiff’s case. The opposite is also true here.
This process typically takes six months to a year, depending on the complexity of the case. If one side is not cooperating, which usually means withholding documents or witnesses, the other side files a motion to ask the court for help. It’s always better if the lawyers can work it out before coming to this, however.
Once discovery is completed the parties, typically the defendant, will often file motions to eliminate part or all of plaintiff’s claims. This is done through a Motion for Summary Judgment. The filer argues that there is no genuine triable issue of material fact as to one or more elements of the plaintiff’s claims. While defendants typically file these motions to knock out a plaintiff’s claims, we often file “offensive motions for summary judgment” to establish elements of the plaintiff’s claims. The court has the power to grant or deny the motions. If the court denies the defendant’s motion, this usually means the plaintiff is clear to take the case to trial.
Mediation is a confidential process where an experienced former judge or litigator acts as a neutral to assist in resolving the dispute. Mediations are typically held at the mediator’s office (or more often via Zoom) for an entire day. The parties are almost always broken into two private rooms with their respective lawyers, and the mediator floats between the rooms in an effort to facilitate negotiations.
Over the course of the day, the mediator informs each side of the opposing parties views of the strengths and weaknesses of the evidence for or against them. The mediator will also deliver the offers and counter-offers of the parties. The goal is to resolve the case before the end of the day. If the case does not resolve on the day of mediation, the mediator will usually stay involved and attempt to settle the case before trial. If that doesn’t work, it’s time to go to trial.
We’ve all seen them on TV. This is the big showdown. This is the time for the plaintiff, the victim, to tell his or her story and convince the jury of 6-12 members of the community she should prevail. This process typically takes several days.
We work up every case, starting from day one, as if it is going to trial. We can never assume a case will settle, nor would we be providing our best service if we worked a case up just to be settled. While we are pleased most cases resolve, we love the fight in the courtroom and are willing to take any defendant to trial in any case. That’s what we do here.