Concussion Claims 2.0

The days of a straightforward concussion defense has ended. Previously, plaintiffs would allege a concussion and claim ongoing "post-concussion syndrome" symptoms like fogginess, memory issues, headache, etc. Defending against the concussion involved a focused defense on one claimed injury. Now, concussion damages cases involve claims of multiple, chronic syndromes arising out of the alleged concussion. These conditions include post-traumatic headaches, post-traumatic vision syndrome, post-traumatic stress disorder (now with allegations to brain damage from the psychological condition), and more. Plaintiff's view these syndromes as separate injuries each requiring compensation.

This change in the concussion damages landscape provides vast opportunities for the defense to challenge damages claims. Every time an expert diagnoses a new syndrome, the expert must provide an reliable methodology. Some of these new subtypes of post-concussion syndromes are so new or poorly defined that diagnosing them reliably can be challenging. Undercutting the scientific and methodological underpinnings of these new syndromes provides opportunities to knock out expert opinions and mitigate the risk of the case.

For example, a recent study on post-concussive complaints showed that 35% of Americans who had never sustained a concussion experienced multiple "post-concussive" symptoms (trouble sleeping, headache, fatigue, etc.) in their everyday life. Given the high baserate of these symptoms, requiring the expert to justify a methodology in attributing symptoms to a specific condition, like post-traumatic headaches from a concussion, is exactly the type of opportunity these new concussion syndromes create.

Over the next several weeks, we will unpack the evolving landscape of new post-concussion syndromes in concussion litigation.

Image by Gordon Johnson from Pixabay.