OTLA Trial Lawyer Fall 2022

22 Trial Lawyer • Fall 2022 Brain Injury Continued from p 21 hypermetropia, saccadic eye movements, deficiencies of pursuit eye movements, fusion with defective stereopsis, binocular vision disorder, unspecified astigmatism bilaterally, presbyopia and photophobia. The neuro optometrist prescribed prism glasses and sunglasses and 48 weeks of vision therapy. The defense called neurologist Tarvez Tucker, MD, who testified that Smith sustained a mild TBI but not a concussion because he did not experience a transient alteration of consciousness and his providers did not order a CT on the day of the collision. In Dr. Tucker’s opinion, it is invariable that a provider will order a CT if they suspect a concussion. The fact that one was not ordered supports the notion the doctor did not suspect Smith had sustained one. She opined that seven physical therapy and five acupuncture therapy visits were reasonable and necessary to treat Smith’s mild TBI but none beyond that. She opined that vision therapy was not necessary, reasonable or efficacious citing medical literature3. She also testified that Smith’s persistent headaches were caused by his overuse of over-the-counter medication. She recommended a onetime headache evaluation. On cross-examination, we established that Dr. Tucker is a neurointensivist who treats exclusively acute patients in the hospital with moderate to severe head trauma such as stroke. She has no recent experience evaluating or treating patients with mild TBI or post-concussion syndrome or outpatients for any type of brain injuries. She testified she had little to offer such patients with headaches other than a one-time headache evaluation. Proving future medical expenses Dr. Erb testified Smith will likely require annual specialized eye evaluation and replacement of his prescribed reading/computer blue light lenses every two years costing $500 and $674, respectively. She testified further he would require specialized exams and glasses for the remainder of his life expectancy, of 27.34 additional years, at a cost of $14,700 (28 x $500) and $9,436 for total future medical expenses of $24,136. Proving loss of earning capacity Smith, a college graduate with a B.S. in management and an MBA, had a successful career as a product management professional with expertise in managing and growing products, and in market analysis and evaluation. That work entailed 75% of his time in front of a computer, writing strategic or business plans, putting presentations together, taking notes in meetings, financial analysis, user interface review, and/or market research. Nine months before the crash he was laid off and at the time of the collision was working part time helping his wife in her health supplement business and looking for a product manager position. He had had several interviews but no offers. Smith’s annual salary was $140,000, with a yearly $5,000 bonus, for a total annual compensation of $145,000, plus benefits, including company paid health insurance for his entire family (wife and two children), a 401K match, vision and dental insurance, and company-paid life insurance. After the collision, and as a result of his injuries, Smith’s doctors determined he was unable to work from the collision date, February 14, 2018, through late April 2019. We argued that, based on his track record, Smith would have secured employment on a date soon after the collision date had he not been injured. The collision occurred in February and we argued he would have been hired by the end of April. We claimed lost income for the period of May 1, 2018 through May 1, 2019. On May 2, 2019, Smith secured a project manager position with

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