Traumatic Brain Injury

Considering an expert: whether the cognitive record supports a damages claim

The first decision is whether the neurological and neuropsychological findings describe a person whose work has changed. A brain injury that leaves attention, processing speed or executive function measurably reduced can end a career in a demanding occupation even when the person walks, talks and drives normally, and that is the case in which a vocational opinion earns its place. A mild injury with symptoms that resolved inside the treatment window usually does not need one, and counsel on either side should say so early rather than pay for an evaluation that adds nothing to the record.

This stage also decides sequence. Vocational and life care opinions in a brain injury matter rest on the neuropsychological battery, so the useful question at the outset is whether that battery exists, whether it covers the domains that drive work capacity, and whether it was administered long enough after the injury to describe a settled condition. When it does not yet exist, the expert decision waits on it.

Retaining: scope, order and the record the experts share

Retention fixes what each expert will answer. In a brain injury case that usually means three engagements that share one factual record: a vocational expert on residual work capacity and earning capacity, a certified life care planner on future care and supervision, and a forensic economist on the present value of both. KWVRS staffs all three from one roster, which lets counsel brief the injury profile once and keeps the vocational restrictions, the care plan and the economic assumptions consistent with one another instead of drifting between separately retained firms.

The retention letter should state the questions, the records the expert will receive and the calendar the report must meet. For a brain injury the records package is heavier than most: imaging, the acute and rehabilitation charts, the neuropsychological report with its raw scores, the treating physiatrist's and neurologist's notes, and the full pre-injury employment and education history against which the post-injury capacity is measured. Gaps in that package are the most common reason a report is delayed or qualified.

Preparing for deposition: defending the translation from test scores to work

The deposition decides whether the expert can explain, step by step, how a set of neuropsychological scores became an opinion about jobs and wages. Opposing counsel will press on severity classification, on the distinction between deficits caused by the injury and conditions that predated it, and on why particular occupations were excluded. Preparation therefore centers on the expert's file: every score relied on, every restriction adopted from a treating provider, every labor market source, and the reasoning that links them. The expert should be able to say what would change in the opinion if a contested finding went the other way.

Counsel should also decide, before the deposition, how the vocational expert and the life care planner divide the cognitive questions between them, so that two KWVRS witnesses do not offer overlapping opinions on supervision, medication management or return to work.

Trial: making cognitive loss visible to a jury

At trial the task changes from defending a method to making it understood. A jury cannot see a processing speed deficit, so the testimony works through concrete comparisons: the demands of the job the person held, the demands of the jobs that remain open, and the gap between them in earnings and in supervision. Demonstratives that put the pre-injury and post-injury occupational profiles side by side, and a care timeline drawn from the life care plan, carry more than a recitation of test names. The expert's account must match the deposition transcript in every particular, and where the neuropsychologist and the economist also testify, counsel sequences the witnesses so that each builds on the last.