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Trap 6: When the Defense Lawyers Call a Traumatic Brain Injury Only “Mild”

Guerrero v. Smith

Michigan brain injury lawyers must be wary of a defense argument contending evidence only indicates a”mild” traumatic brain injury, as used in Guerrero v. Smith. There is no such thing as a mild traumatic brain injury. It is also contrary to the clear language in MCL 500.3135, which reserves traumatic brain injury as a question of fact for the jury.

How TBI Lawyers Should Respond to the Mild Brain Injury Argument

TBI lawyers should respond using MCL 500.3135 — specifically, that 3135(2)(a)(ii) (also called the closed-head injury exception), creates a special rule for head injuries. Under this exception, the only threshold requirement is a doctor’s sworn testimony that the auto accident victim may have a serious neurological injury. Once this requirement is met, it’s up to the jury to determine whether a traumatic brain injury is mild or serious.

While Kreiner v. Fischer largely ignores the closed-head injury exception, it does contain a footnote with some great language traumatic brain injury lawyers can use to respond to this argument. Footnote 15 states,”MCL 500.3135(2)(a)(ii) creates a special rule for closed-head injuries by providing that a question of fact for a jury is created…” Additionally, there is helpful language in recent cases such as Minter v. Grand Rapids, Benedict v. State Farm, and McCall v. Dorch. These cases are supportive of the closed-head injury exception”automatically” creating a jury question.

It’s important to stress the special rule that MCL 500.3135(2)(a)(ii) creates: A question of fact for the jury. A plain reading of the statute suggests that the Legislature has taken traumatic brain injury out of the trial court’s hands by reserving the question of its severity specifically for the jury. Michigan TBI lawyers should be vigilant of defense attempts to distract judges from this fact.

Traumatic Brain Injury Lawyers 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 throughout the country. If you are an attorney 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, we 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 our lawyers 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 automobile accidents. Please call Michigan Auto Law at (800) 777-0028 for a case evaluation with no fee or obligation, or fill out our free consultation form.

Did our Michigan traumatic brain injury lawyers answer all of your questions about”mild” TBI? If not, please contact us and we can help.

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