MYERS & COMPANY
Suing Family and Friends x The Eyes Have It
I love collaborations. I’m not sure why they’re so appealing. But there’s something deeply satisfying about bringing two ideas together. It’s like compounding validation that not only did I think something was cool, other people did too.
And in this case that I’m going to tell you about, there was a cool collaboration between two things that work really well on their own. And maybe even better together.
We represented a couple who were involved in a bad wreck. The car was being driven by another family member.
We sent a demand letter. The insurance company basically dared us to sue the family member. So we did.
I learned something a couple years ago that I didn’t know before. In cases involving family members information about insurance coverage is admissible. See, e.g., Terrell v. Hamilton, 190 Wn. App. 489, 492, 358 P.3d 453 (2015).
Insurance companies have long-banked on the idea that the jury will freak out about one family member suing another. That’s totally nullified by being able to tell the jury that there’s plenty of insurance coverage and the family member is not going to have to go out of pocket to pay the verdict.
Then there was the issue of damages. The husband had orthopedic injuries. Those are easy to understand and show. But the wife’s claim was largely based on the mTBI she sustained.
It’s tougher to “prove” the impact from mTBI when people are able to stay in the same job. And she was able to stay in the same job.
It would be awesome to have imaging that showed the kind of subtle psychological injury associated with mTBI. And there are some options. But the problems in my view are (1) there’s almost never before imaging for comparison and, maybe even more importantly, (2) the admissibility and utility of the “advanced” imaging is an absolute side-show. It can dilute and/or overshadow the really compelling evidence that comes from before and after witnesses.
So what to do? In this case like many others our clients were hurt in a a side-impact collision.
The sudden lateral movement of the head relative to the body can cause hyperextension or hyper-flexion of the neck, leading to secondary brain injuries due to the transfer of forces through the neck. These forces cause the axon to move in opposition to the soma and either stretch or sheer.
There doesn’t need to be actual sheering for there to be an axonal injury. Stretching is enough to injure the axon and affect the network to which it contributes.
So that all makes sense. But how to show it? Well, when everything is working properly there’s a pretty dynamic communication between the eyes and the brain. It’s a lot like circuitry in electronics.
And when everything isn’t working properly, there are frequently problems with vision. Problems with vision are a lot different than problems with word-finding. They’re objective and easy to measure. And that’s exactly the evidence we had in this case.
Evidence about changes in vision made it so much easier to backfill and explain all the other changes. We just needed the conceptual/medical anchor that changes in vision provided.
So I guess this is a case with four claps. Two claps for an obscure but supremely helpful court of appeals ruling that makes a special exception to the prohibition against insurance evidence when families are involved. And two more claps for the eyes as anchors in the story of how brain injury can change lives even if outward appearances seem pretty unchanged.