Trap 2: TBI Cases in Federal Court

Worst TBI Case Says Automatic Jury Route for TBI Victims Doesn’t Apply in Federal Court

Michigan traumatic brain injury lawyers must be on high alert after a Dec. 18, 2008 U.S. Court of Appeals for the Sixth Circuit case that dismissed the traumatic brain injury claim a child injured in a car accident. This case will effectively wipe out most brain injury cases in the federal courts.

In Livonia Shropshire v. Laidlaw Transit, Inc., the Court ruled on its own accord — the defense lawyers never even raised the issue — that the TBI claim of a child injured in a car accident and diagnosed with brain injury and seizures could be dismissed. The Court contended the “automatic” route to a jury for closed-head injury victims found in MCL 500.3135(2)(a)(ii) is procedural, not substantive, and…does not apply in federal court.

Insurance defense lawyers will take full advantage of this case, as they know that if a neurologist or psychiatrist signs an affidavit that a plaintiff has a serious neurological injury, the plaintiff will get to a jury in Michigan courts. Now defense lawyers will push TBI cases to be removed to federal court.

To review, Michigan courts have interpreted the language in 500.3135(2)(a)(ii), also known as the closed-head injury exception, as “automatically” entitling a person who has suffered a traumatic brain injury to get to a jury, if a properly qualified doctor testifies that there may be a serious neurological injury. The automatic route was created by the Michigan Legislature specifically to protect victims of traumatic brain injury. Without this exception, the majority of car accident victims who have suffered brain injuries would not be able to file a lawsuit for their injuries, because most brain injuries are not identifiable by today’s diagnostic testing. These injuries, even though they can be very severe and disabling, would therefore fail the first prong of Michigan’s “serious impairment of body function” threshold in Kreiner v. Fischer, which requires any injury suffered from an automobile accident to be “objectively manifested.”

Shropshire disregards the closed-head injury exception as procedural and not applicable to the federal courts. Michigan TBI lawyers believe Shropshire is a shocking example of form over substance, and either cold-hearted indifference or a startling lack of medical sophistication of traumatic brain injury by the Sixth Circuit panel. For more information on this tragic case, read our blog.

In the meantime, Michigan TBI lawyers should create a comprehensive record to protect people with brain injuries in federal court. We write “may” because a federal court judge applying only the Kreiner factors to determine impairment may still dismiss any brain injured child’s case because it is so difficult to show a serious impairment for a young child.

Traumatic Brain Injury Attorneys of Michigan Auto Law
Michigan Auto Law partner Steven Gursten is a member of the American Association for Justice Traumatic Brain Injury Group and lectures on traumatic brain injuries across the country. If you are a lawyer and would like to refer a Michigan traumatic brain injury case, please contact Michigan Auto Law.

If you or someone you know has suffered a traumatic brain injury as a result of a car accident or truck accident in Michigan, our TBI attorneys can guide you through the complicated requirements of Michigan’s closed-head injury exception and help obtain the insurance benefits and pain and suffering compensation you need. Because we have been handling traumatic brain injury cases for more than 50 years, we understand the physical, emotional and psychological hardships that TBI victims experience from auto accidents. Please call Michigan Auto Law at (800) 777-0028 for a free case evaluation, or fill out our consultation form.

Did our Michigan traumatic brain injury lawyers answer all of your questions about defense attorneys pushing cases to federal court? If not, please contact us and we can help.