Cases brought against the manufacturer of goods, following an injury caused by an inherent defect within the good, are not based on a theory of negligence, but on a theory of product liability. The manufacturers are liable for products that cause harm because they represented that the products were safe when they made them.

Causation in Product Liability Claims

In preparing for jury trials, we recognize that product liability cases often hinge on causation and the complex expert testimony which typically surrounds the issue of causation. Therefore, one of our points of focus is understanding how jurors make determinations of causation in particular cases and on building strategies for overcoming problematic common-sense causation notions.

First, there is general causation, which concerns whether the defendant’s misconduct can cause the damage. Second, there is specific causation, concerning whether the capacity to harm was actualized in our particular case.

Most of the times, product liability cases require excellent and constant communication between technical experts and us. They involve extensive pretrial discovery which demands a perfect understanding of the contained scientific terms so that we can present the case as clearly as possible to the judge and jury. The significant aspects of the case must be extracted and then filtered to get to the vital elements.

We have to be familiar with the jurors’ way of thinking, fundamental beliefs and strategies because this helps us understand better how to represent our client. Studying the jury facilitates a valuation of the case and ultimately can contribute to a favorable settlement.

The Testifying Expert Is Crucial in Science-Based Litigation

Proving a product had an unreasonably dangerous defect is difficult. Doing so requires compelling expert witnesses able to withstand a barrage of analysis and objection from companies’ lawyers with deep pockets. Courts are also understandably anxious about stating that a product should never have been produced.

Product liability cases often relate to many complex subjects and, therefore, it is recommended to prepare a proper presentation of the proof, including experts from all the fields involved and careful use of specific terminology. Consistent utilization of particular terms and correctly defining them can be critical in trials.

If the product cannot be associated with the injuries of the plaintiff, the defended cannot be held responsible for the respective charges. Medical malpractice lawsuits are common product liability trials based on a claim that the use or exposure to a particular device or substance led to the injury. Scientific research and results interpretation is needed to sustain the claim. Therefore, we make sure that the witnesses are highly qualified, able to inform the jurors and credibly communicate with them. The witnesses must be familiar with the possible twists and turns that the trial can take in court.

Presenting the scientific aspects of the case is most often decisive in a product liability trial. Consequently, we aim for an understandable presentation of the relevant science concepts to obtain a decision that will not free harmful devices manufacturers from charges. We keep in mind that jury members are not experts or researchers and seek justice by presenting science and engineering-based knowledge in an accessible form, both for the judge and the jury.

Reprinted From:
https://www.bestlawyers.com/article/expert-witnesses/1432

Under both the old and new legislation, an Applicant will meet the legal definition of catastrophic impairment pursuant to the SABS if it is determined that he/she has suffered a combination of physical and psychological impairments that amount to a whole person impairment (WPI) in excess of 55%.

The AMA Guides provide direction when assigning impairment ratings to calculate a WPI. When combining physical and psychological impairment ratings for brain injury, the relevant chapters are Chapter 4 (nervous system) and Chapter 14 (mental and behavioral disorders).

The Overlap of Psychological and Physical Injuries in Brain Injury

The inherent difficulty with brain injury is the interplay between the physical and psychological components of the injury. To simplify, it is clinically indistinguishable to determine whether an applicant’s brain injury causes depression or whether the depression results from other symptoms of brain injury such as sleep deprivation or headaches.

In the 2014 decision Moser and Guarantee, the Arbitrator commented on the overlapping analysis of determining impairment ratings:

In Chapter 4, the evaluator assesses activities of daily living, daily social, and daily interpersonal functioning. In Chapter 14, the evaluator assesses activities of daily living, social functioning, concentration, persistence and pace, and adaptation (at page 320). The wording, descriptors, and text anchors suggest that the assessment of Chapter 14 is indeed wider than that of Chapter 4.

In Moser, the arbitrator subtracted 2% of the Applicant’s cognitive impairment due to closed head injury and then combined the remainder with the WPI based on the applicant’ s mental and behavioral disorders.

This type of apportionment of brain injury impairment has not been followed by LAT decision makers or the divisional court in subsequent decisions.

In fact, the case law has explicitly allowed for separate impairment ratings under chapters 4 and 14 where an injured individual suffers both a physical brain injury and a separate psychological impairment resulting in mental and behavioral issues. In the 2016 LAT decision of 16-00013 and Peel, the Arbitrator did not reduce WPI ratings because of any possible overlap:

I acknowledge that it can be difficult to tease out psychological causes from neurological ones when assessing a mental status impairment. The overlap between Chapters 4 and 14 raises the possibility of double counting,and therefore, overestimating the impact of an impairment. However, in this case I find the specific diagnosis of Cognitive Disorder as well as distinct psychological disorders supports a conclusion that the applicant’s mental impairments should be accounted for and rated under both chapters, as long as the ratings are apportioned between the two chapters. In this case, I find not including the 8% mental status impairment under Chapter 4, as Dr. Valentin has done, amounts to ignoring — and underestimating – the contribution of the concussion to her mental status impairment.

The Peel decision is authority that the difficulty separating the effects of brain injury from those emanating from mental or behavioral disorders should not be construed as double counting.

The decision of Allen and Security National further clarified the question of double counting in a case where an injured individual suffers both a physical brain injury and a separate psychological impairment.

In Delegate Blackman’s decision, upheld by the Ontario Divisional Court, the following was stated with respect to the question of double counting:

A significant issue in this catastrophic impairment appeal concerns an insured person injured in a motor vehicle accident who suffers both a physical brain injury and a separate psychological mental and behavioral disorder. If both the organic brain injury and the psychological disorder separately result in emotional or behavioral impairments, are both the physical brain injury and the psychological disorder each to be rated for such impairments and then combined as provided for in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “Guides”)?

My answer is yes.

Allen, therefore, stands for the principle that where there is both a psychological disorder and a brain injury, those issues are to be separately rated and combined for the purpose of determining WPI.

Chapter 14 Impairments Should not be Apportioned

While the Divisional Court has provided some clarity with respect to combining chapter 4 and 14 impairment ratings, the issue of apportionment remains live. Particularly, when an applicant is provided impairment ratings in Chapter 4 Table 3, Chapter 4 Table 2 and Chapter 14.

However, an analysis of the Pastore decision stands for the proposition that Chapter 14 impairments should not be apportioned:

In Pastore, the mental or behavioral disorder in question was a pain disorder associated with both psychological factors and a general medical condition. In that case, I was not persuaded, regarding a “mental or behavioral disorder,” that it was necessary to tweeze out of the mental or behavioral disorder those parts that were purely psychological from those that were not, when the pain disorder encompassed both.

Brain injury cases are analogous to pain disorder cases in that there are overlapping mental/behavioral and neurological causes to impairment. Thus, following Pastore and Allen, to the extent that there is overlap between traumatic brain injury and a psychological disorder, there should be no requirement to distinguish them in Chapter 14. Doing so would be to underestimate the extent of an Applicant’s impairments from traumatic brain injury.

Pastore confirmed that the very definition of “catastrophic impairment’ was intended by the legislature to be “inclusive and not restrictive. “Given the first-party contract and associated duty to adjudicate an Applicant’s claim in good faith, it is incumbent on insurers to assess impairment ratings fairly.

Counsel for an Applicant must advocate for fairness and proportionality when asking Arbitrators to determine impairment ratings for brain-injured applicants with overlapping psychological and physical impairments.

Reprinted From: https://www.bestlawyers.com/article/what-constitutes-a-brain-impairment/2652