California

Subjective Complaints in Personal Injury Litigation

Traumatic Brain Injury claims are likely just the beginning of an onslaught of “subjective” injury complaints alleged by plaintiffs in personal injury actions.  I say subjective because currently, there are no scientifically accepted methods to test a person for a traumatic brain injury (TBI).  Sure, you can check imaging results for contusions, lacerations, and changes to the physical structure of the brain; however, approximately 75% of traumatic brain injuries are mild and considered “concussions[1].”  This means many of the TBI claims made by plaintiffs likely cannot be scientifically verified in the same way we can conclusively identify an injury such as a broken bone.  Generally, most patients recover from a mild TBI/concussion; however, some patients experience persisting problems related to their head injury[2].  This is where the meat and potatoes for plaintiffs’ attorneys lie:  any reference to loss of consciousness, memory problems, moodiness, headaches, depression, anxiety, and general cognitive issues causes dollar signs to flash before plaintiffs’ attorneys’ eyes.

You just had a matter come across your desk and, of course, one of your first tasks is evaluating the liability exposure of your client.  But sometimes lost in the liability exposure analysis is whether the exposure arose out of the work of a contractor.  Why is this important?  Because you could single-handedly save your client hundreds of thousands, if not millions of dollars, in legal fees by simply identifying possible indemnity contracts between your client and other entities.  In this article I will highlight my favorite ways to use Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541 to protect the businesses and assets my clients worked tirelessly to build.