Personal Injury Litigation Research Articles

Litigation and liability in concussion research and collaboration

ABSTRACT This paper explores, first, the common law principles of personal injury litigation explored through court decisions relating to sports injuries in (primarily) England and Wales and, second, the statutory schemes relating to concussion liability and young players in the United States. It explores the difficulties of using those strategies as a means of establishing liability for injuries arising from sports-related concussion (SRC) and explains why they are of such limited utility. While proposed class actions over historically acquired injuries or individual litigation over recent catastrophic injury may have some merit, and while future amendments to the US laws might remove some of their inherent flaws, the difficulties in establishing liability for personal injury will always be exacerbated by the specific characteristics of SRC and the legal, factual and evidential issues that arise. For those reasons, the paper considers the potential benefits of other means of concussion prevention and mitigation, including no-fault compensation and mandatory insurance, the more widespread use of effective, nuanced concussion protocols, and inter-disciplinary research that engages with doctrinal legal research.

Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of Montana

Abstract This article presents a guide for assessing economic damages in personal injury and wrongful death litigation in the state of Montana and is part of the Journal of Forensic Economics series of papers on this topic. The analysis provides experts with the information needed to produce opinions and give testimony on these subjects that is consistent common practice and Montana law.

Forensic neuropsychiatric evaluation of a personal injury case.

Civil litigation involving the forensic neuropsychiatric evaluation of a personal injury case requires an assessment of damages and causation. The expert witness is obliged to integrate data from three critical sources of information: the review of records; the results of neuropsychological testing; and the findings from the clinical examination. In civil litigation involving a personal injury claim, the expert witness can be expected to address causation and prognosis of any neuropsychiatric damages. We discuss the undertaking of a forensic neuropsychiatric evaluation, psychiatric disorders often encountered in personal injury litigation, provide case vignettes and describe a number of special types of forensic neuropsychiatric evaluations, for example, Workers' Compensation, VA Disability and Social Security Disability.

Detection of noncredible cognitive performance with Wechsler Memory Scale-IV measures in mild traumatic brain injury litigants

Objective To investigate the operating characteristics of selective measures on the Wechsler Memory Scale-IV (WMS-IV) to predict noncredible neurocognitive dysfunction in a sample of mild traumatic brain injury (mTBI) litigants. Method Participants included 110 adults who underwent a comprehensive neuropsychological examination. Criterion groups were formed based upon their performance on stand-alone measures of cognitive performance validity testing (PVT). Results Participants failing two stand-alone PVTs exhibited significantly lower scores across all WMS-IV dependent variables of interest compared to participants who passed both PVTs. Participants who failed one PVT were excluded. Bivariate logistic regression revealed that all six dependent variables were significant predictors of PVT status. The best prediction model consisted of three WMS-IV variables including Logical Memory Delayed Recall (LM2), Logical Memory Recognition (LMR), and Visual Reproduction Recognition (VRR). This model demonstrated an accuracy of 90.2%, 0.89 sensitivity, 0.92 specificity, and a Receiver Operating Curve (ROC) of 0.957. Conclusion The current empirically-derived cutscores and logit equation for the WMS-IV may be an additional consideration in analyzing database validity and noncredible performance in mTBI personal injury litigants ages 18–69.

COVID-19 off-label uses of medicines: the role of civil liability and regulation.

Physicians can prescribe medicines for different indications than the tested and authorised ones. Such 'off-label' uses expand therapeutic options but also create uncertainties. The COVID-19 pandemic triggered new off-label uses and, despite issues being reported in the literature, these have not resulted in substantial personal injury litigation in the EU. Against this backdrop, this article argues that civil liability plays, in fact, a limited role in off-label uses. In particular, civil liability may incentivise health actors to follow and react to the development of the evidence basis for off-label uses. However, it is ultimately unable to incentivise the conduct of additional research on off-label uses. This is problematic, as off-label research is key to protecting patients and is recommended by international medical ethics. The article concludes by critically discussing proposed mechanisms to incentivise off-label research. It argues that extending civil liability for unknown risks may have undesired effects on insurability and innovation, and most regulatory proposals seem ineffective. Building on the 2014 Italian reform of off-label uses, the article proposes the establishment of a fund financed by mandatory contributions from the industry, which should be used by pharmaceutical regulators to promote off-label research and develop guidelines for prescribers.

Turning on Those Who Turn to the Courts: Experimental Evidence of Backlash Against Personal Injury Litigants

AbstractDo people turn on those who turn to the courts? Using a survey experiment, we find people have significantly more negative attitudes toward personal injury litigants than other types of claimants, even when they believe the claimant is injured and mostly not at fault. Moreover, our subjects were not anti-claim, anti-hiring a lawyer, or even anti-government program. Instead, they were distinctively anti-litigant.

Paraquat, Parkinson's Disease, and Agnotology.

Paraquat, Parkinson's Disease, and Agnotology.

The Impact of Using a Race-Neutral Model to Predict the Educational Attainment and Income of a Child in Personal Injury Litigation

Abstract This paper examines the impact of using a model that excludes race and ethnicity on predicted educational attainment and income of a child in a personal injury legal matter. We use the updated ordered probit models with and without race and ethnic variables from Spizman and Kane (2020) and compare the earning capacity losses of a minor child based on each one. We perform this calculation for more than 3,000 combinations of the right-hand side variables for males and females separately, with more than 1,000 combinations each for White, Black, and Hispanic individuals. We find wide variation within each racial and ethnic group, with some subgroups benefiting and others being adversely impacted. The results of our analyses provide guidance to policymakers who might be interested in the real-world outcomes associated with legislation requiring that race and ethnicity not be considered when estimating damages in personal injury cases.

The Continuous Visual Memory Test: Update and extension on the operating characteristics as an embedded measure of cognitive performance validity

Objective: To compare and update predictive models comprised of embedded measures from the Continuous Visual Memory Test (CVMT) in their ability to predict performance validity in personal injury litigants. Methods: Ninety-two personal injury litigants underwent a comprehensive neuropsychological examination. Criterion groups were formed, i.e. PVT-Pass and PVT-Fail, based upon their performance on stand-alone measures of performance validity (PVT). Independent-samples t-tests investigated group differences on dependent variables of interest while logistic regression analyses, as well as a decision tree classification procedure, were employed to identify the best predictive model. Results: The PVT-Fail group scored significantly lower on the 20-item Larrabee Index (LI), and three CVMT variables comprising the Henry-Enders Index (HEI) including Hits, Total Score, and Delayed Recall, but significantly higher on False Alarm Errors. Although the Total score was the best single predictor of PVT status, the addition of LI improved sensitivity. The best predictive model was derived via a classification and regression tree analysis which selected LI and CVMT-FA resulting in .91 specificity, .60 sensitivity, and ROC = 0.832. Conclusion: In the current study total CVMT scores < 70, and LI scores < 18 were rare for PI litigants with MTBI and not seen in litigants with moderate and severe brain injury who passed PVTs. Three predictive CVMT models were derived. When failure on one of the models is observed then concerns about the credibility of visual memory performance should be considered with particular attention to other stand-alone and embedded measures of performance validity.

Unexpected symptoms after concussion: Potential links to functional neurological and somatic symptom disorders

ObjectiveReporting of unexpected symptoms after concussion might, in some people, reflect a Functional Neurological Disorder (FND), Somatic Symptom Disorder (SSD), or exaggeration (feigning).This study aimed to determine whether reporting unexpected symptoms after concussion was associated with risk factors for FND/SSD, exaggeration, or both. MethodAdults with persistent symptoms following concussion (N = 77; 61% women) rated the presence and severity of unexpected neurological symptoms (from the Screening for Somatoform Symptoms scale, e.g., paralysis) and somatic symptoms (from the Patient Health Questionnaire-15, e.g., stomach pain) that did not overlap with post-concussion symptom scale items. The independent variables were risk factors for exaggeration (neuropsychological performance validity test failure and personal injury litigation) and predisposing and perpetuating factors for developing FND and/or SSD (e.g., fear avoidance behavior). ResultsWhen adjusting for all covariates, fear avoidance behavior was most strongly related to unexpected neurological symptoms (B = 0.11, 95% confidence interval = 0.05–0.18, p < .001), while current anxiety scores were most strongly related to unexpected somatic symptoms (B = 0.34, 95% confidence interval = 0.15–0.52, p < .001). Performance validity test failure and litigation were not significant predictors in either model. ConclusionUnexpected neurological and other somatic symptoms after concussion should not be dismissed as exaggeration. Psychological factors thought to perpetuate FND and SSD (e.g., fear avoidance behavior) may contribute to unexpected symptoms following concussion. More research is needed at the intersection of FND, SSD, and persistent post-concussive symptoms.

Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of Arizona

Abstract This article provides a framework for calculating economic damages in personal injury and wrongful death litigation in Arizona by providing the information necessary to produce opinions and testimony that conform to Arizona laws, rules, regulations, and practice.

Compensation for the Cost of a Surrogacy Arrangement in Personal Injury Cases

A woman who has been rendered infertile by a defendant’s wrong may wish to obtain damages for the cost of becoming a parent through a surrogacy arrangement. Such a claim, which has yet to be brought before an Australian court, would raise two partially overlapping issues under Australian law. First, the claim must satisfy the general requirement that a person who has suffered personal injury can only recover expenses that are necessary and reasonable. Secondly, the laws of the Australian jurisdictions except the Northern Territory regulate surrogacy arrangements and criminalise commercial surrogacy arrangements (where the surrogate mother is promised a fee in addition to the reimbursement of expenses). This regulation may impact upon the recoverability of the cost of a surrogacy arrangement through the concepts of coherence of the law and public policy. The most complex scenario, but also the most likely to arise in Australian personal injury litigation, is that of a plaintiff who lives in Australia and wishes to enter into a commercial surrogacy arrangement in a foreign country in which this is lawful. This article investigates the legal issues that may arise if a claim for the cost of a surrogacy arrangement is brought before an Australian court.

Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of Maryland

Abstract This article is one in the Journal of Forensic Economics series providing experts with information about how to prepare and testify about economic damages in personal injury and wrongful death cases in the state of Maryland.1 Topics covered include a review of the Maryland state court system, rules regarding expert testimony, and wrongful death and personal injury economic damages calculations. An Appendix contains the relevant statutes.

Update to Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of Nebraska

Abstract In a recent paper, Rosenbaum and Richardson (2019) described assessing economic damages in personal injury and wrongful death cases in Nebraska. That article omitted discussion of Nebraska's rules regarding hedonic damages. This note corrects that omission.

Update to Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of California

Abstract This article is designed to update the original article that appeared in the Journal of Forensic Economics, 17:3 (2004). The article discusses a change in procedure for expert discovery and deposition and five substantive changes and clarifications affecting the legal guidance for valuation of damages in personal injury and wrongful death cases in California.

Is there a “compensation culture” in contemporary Russia? The role of liability insurance, non-pecuniary damages, and legal profession in personal injury litigation

This article explores current trends in personal injury litigation in Russia compared with the common law countries (the UK and US). In contrast to the British and American situation, there is no concern about the problem of “compensation culture” or “litigious behaviour” in Russian public discourse. The number of personal injury cases considered by Russian courts is not particularly high despite the growing number of accidents. This state of affairs can be explained by the influence of the Soviet culture of tort law. The most visible areas of the Soviet impact addressed in the article are liability insurance, non-pecuniary damages, and the legal profession. The article demonstrates the specificity of the Russian approach to these issues. The research is based on the analysis of judicial decisions on personal injury cases, court statistics, and expert interviews with personal injury lawyers. The findings are discussed from a historical and comparative perspective.

The Modified Somatic Perception Questionnaire: Operating characteristics in non-pain forensic samples

The objective of the current archival study was to investigate the ability of the Modified Somatic Perception Questionnaire (MSPQ) to discriminate between noncredible and credible neurocognitive dysfunction in a large mixed non-pain forensic sample comprised of personal injury litigants and disability claimants. Participants included 149 adults who underwent comprehensive neuropsychological examination. Criterion groups were formed, i.e., Credible Group (CG), or Noncredible Group (NCG) based upon their performance on stand-alone performance validity tests (PVT) including the Word Memory Test (WMT), and/or Test of Memory Malingering (TOMM), and Victoria Symptom Validity Test (VSVT). After excluding examinees with evidence of somatization participants in the NCG scored significantly higher on the MSPQ compared to participants in the CG. Scores on the MSPQ were not only related to cognitive performance validity but also amplified by the co-existence of somatization. There were no significant effects of gender, age, or race on MSPQ scores. We conclude that the MSPQ demonstrates external validity as a self-report measure of symptom validity that is sensitive to somatic and autonomic complaints in non-pain forensic samples. Future research is needed to develop MSPQ cutscores with external validity pertinent to other non-pain populations.

Personal injury litigation: the case for legal aid

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Posttraumatic stress disorder and noncredible symptom reporting on the Trauma Symptom Inventory-2

This archival study sought to investigate the ability of raw scores on the Atypical Response scale (ATR) and TRAUMA Factor of the Trauma Symptom Inventory-2 to predict noncredible cognitive performance validity testing (PVTs) in personal injury litigants and disability claimants with posttraumatic stress disorder (PTSD). Participants included 51 adults diagnosed with PTSD who underwent comprehensive neuropsychological examination. Criterion groups were formed based upon passing (Credible Group) or failing (Noncredible Group) cognitive performance validity tests (PVTs). Participants failing PVTs scored significantly higher on the ATR and TRAUMA Factor raw scores compared to those passing PVTs. Bivariate logistic regression analyses revealed that ATR scores ≥7 and TRAUMA Factor scores ≥75 were associated with failure on cognitive performance validity measures at ≥ 90% specificity. We conclude that PTSD in a forensic context is associated with a high rate of exaggerated neurocognitive dysfunction as well as symptom over reporting. The proposed ATR cutoff of ≥15 for forensic contexts in the TSI-2 test manual is methodologically flawed and needs to be adjusted downward. Cutscores for the ATR and TRAUMA Factor are presented at various base rates to assist clinicians examining claims of PTSD in a forensic context.

Assessing Economic Damages in Personal Injury and Wrongful Death Litigation: The State of New Mexico

Abstract This article contributes to the Journal of Forensic Economics series on economic damages assessment in individual states by presenting the framework for calculating economic damages in personal injury and wrongful death actions in the State of New Mexico. Topics covered include a review of the New Mexico state court system, procedural rules regarding expert testimony and related discovery, wrongful death and personal injury relevant economic damages calculations, and testimony regarding value of life damages. Other topics relevant to the practicing forensic economist are also discussed.