Trap 8: Beware Of Defense Lawyers Arguing Objective Manifestation In Michigan TBI Cases
Brain Injury Lawyer Calls this a Trap for the Unwary
Even if a lawyer gets past summary disposition in a Michigan traumatic brain injury case, there are still pitfalls that remain. A defense attorney may try to argue the objective manifestation definition for all Michigan car accident cases should be read to the jury and should be on the verdict form.
The defense argument is based on MCL 500.3135(5). Even though a case gets to a jury based on a properly qualified doctor’s testimony that there may be a serious neurological disorder, the defense may contend that the plaintiff still needs to prove objective manifestation. Not only is this potentially confusing for a jury, who will be asked to find both objective manifestation and serious impairment, but it could kill a legitimate TBI claim. If the jury were to find the plaintiff had suffered from serious impairment of body function due to a traumatic brain injury caused by a car accident, but that the injury was never objectively manifested, the jury may find that the plaintiff never satisfied the requirements of MCL 500.3135(5) and, thus, may “no cause” the injured plaintiff.
Purpose of Michigan’s Closed-Head Injury Exception
In response to an “objective verification” defense argument based on Netter v. Bowman (even though Netter was overruled by McCormick v. Carrier in 2010) Michigan traumatic brain injury lawyers should point out the legislative intent of the closed-head injury exception. It does not make sense to include an exception to the objective manifestation requirement in head injury cases if the jury is still required to find objective manifestation. The reason for the exception in MCL 500.3135(2)(a)(ii) is because a closed-head injury or traumatic brain injury is extremely difficult to objectively demonstrate.
Additionally, the defense argument can be effectively rebutted by the language of the closed-head-injury exception, itself:
“[F]or a closed-head injury, a question of fact for the jury is created [whether the injured person has suffered serious impairment of body function] if a licensed allopathic or osteopathic physician who regularly diagnoses or treats closed-head injuries testifies under oath that there may be a serious neurological injury.”
Calling Insurance Lawyer’s Bluff: The Objective Verification Argument
Objective manifestation does not apply to brain injuries caused by car accidents. Period. Michigan TBI lawyers can argue that the objective verification requirement has been met. If an accident victim has had neuropsychological testing, several Michigan cases have ruled that this testing is sufficient to meet the objective verification requirement under Netter. Michigan injury lawyers can find support for this argument in Shaw v. Martin, Hamad v. Farm Bureau, and Amos v. Keller Transfer Line, Inc.
Additionally, TBI lawyers can argue that the Netter “objective verification” requirement doesn’t apply because it’s no longer the law: The Michigan Supreme Court in McCormick v. Carrier overruled Netter and disavowed all cases that followed its erroneously applied its holding.
Traumatic Brain Injury Lawyers of Michigan Auto Law
Michigan Auto Law TBI attorney Steven Gursten is President of the American Association for Justice’s 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 at (800) 777-0028.
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 traumatic brain injury lawyers 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 TBI symptoms that 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 the insurance lawyers arguing objective manifestation in TBI cases? If not, please contact us and we can help.