I tried a traumatic brain injury case about a year and a half ago in Syracuse, New York. Although I got a “verdict”, it was not the one I wanted. The jury did not think my client was very hurt, and thus awarded him a lot less than we believe he deserved and needed.
Misery loves company. Traumatic brain injury cases are statistically among the toughest to win for a plaintiff’s lawyer, as a very recent – and well reported — Syracuse New York brain injury verdict bears out.
Before I go into the case, why is this kind of case so tough? The symptoms of mild traumatic brain injury are often “invisible” to a jury: headaches, cognitive slowdown, depression, blurred vision, memory or concentration problems, mood swings, confusion, and balance issues. Nothing you can show the jury on an MRI slide.
Worse, the injured plaintiff usually looks and talks “normal”. It is easy for a jury to conclude — especially in this post-MacDonald’s case environment – that the plaintiff is “faking” or at least exaggerating.
The press was all over the recent Syracuse traumatic brain injury trial because it involved a famous entertainer – Rick Springfield. A fan at his 2004 NYS Fair performance – 45-year old Vick Calcagno — claimed that, while dancing on stage, he had fallen on her, knocked her down, and caused her to suffer a traumatic brain injury. She claimed that Springfield had been “careless and negligent” during the course of his concert by “performing, hopping and/or jumping” on chairs and benches.
After a week of testimony and only about an hour of deliberations on a recent Friday morning in the Courtroom of Judge Anthony Paris in Syracuse, a jury determined in only one hour that the singer and actor had not caused any brain injuries – or any injuries at all.
Calcagno’s credibility quickly and repeatedly came under fire. Although this is typical in brain injury cases, this case presented even greater hurdles for the plaintiff. She had no witnesses to back up her story that Springfield had fallen on her. There were no videos showing what happened. She conceded that she did not leave the concert or seek medical attention at the time. The defense pointed out that, although she had emailed the NYS Fair about the incident, she did not mention specific injuries but rather asked only for Springfield’s contact information.
She also attended a Cyndi Lauper concert a week after the Springfield concert, which probably convinced the jury she could not have suffered a brain injury at all (apparently the jury did not think — as I do — that wanting to see a Cyndi Lauper concert at all is indicative of a brain injury).
Although plaintiff’s lawyer tried to explain all these seeming contradictions away, he failed. This case was a perfect storm for a brain injury lawyer. No good proof of what happened, post-accident behavior that could lead a jury to conclude the plaintiff was not very hurt – if at all, and only “invisible” symptoms that could not be clearly demonstrated on the stand.
There are of course ways to win traumatic brain injury cases, and each case turns on its own facts. I have attended seminars on how to try and win these cases, but they can — and often are — lost. If you have a traumatic brain injury, be sure to hire an experienced brain injury attorney so that you have the best chance at trial.
Email me at: firstname.lastname@example.org I’d love to hear from you!
Michael G. Bersani, Esq.
michaels-smolak.com Central NY and Syracuse Brain Injury Lawyers Michaels & Smolak, P.C.