Sunderhaus v. Grissom

Mild Traumatic Brain Injury

Danielle Sunderhaus

First Three Rules

• Never believe that just because you obtained a good result, you did not make mistakes, or that everything you did was correct. We are a result oriented society who believes that the victor did everything right and the other side must have done something wrong.

• You can not fairly evaluate your performance once you know the result. Once you know the result, your insight is affected.

• Most of the time, it is not about the lawyers

Deep Thought No. 1

• “Noise proves nothing—often a hen who has merely laid an egg cackles as if she had laid an asteroid.” - Mark Twain

Deep Thought No. 2

• “To be persuasive we must be believable; to be believable we must be credible; credible we must be truthful.” - Edward R. Murrow

Defendant Grissom’s vehicle

Plaintiff was driving a Honda Pilot. The damage estimate was $6,650.75. The property damage estimate showed 7 hours of time to repair frame damage

Another TDBA joke

PLAINTIFF’S A.R.E. 1006 SUMMARY OF MEDICAL BILLS

Plaintiff’s Claims of InjuryPlaintiff claimed that she suffered a traumatic brain injury. The TBI has caused her to be forgetful, irritable, a “bad mommy”, balance issues, inability to judge distances (which caused her to hit her head at the Cincinnati Zoo), and vision changes which required the use of prism glasses.

Daily headaches for 4 yearsVomiting regularly for the first yearShort term memory issuesConcentration issuesLack of ability to organizeMood issuesInability to remember names of players and neighborsNeck pain still present 4 years laterBack pain still presentInability to read due to vision and concentration issues. Cannot follow the lines and can’t remember what she read.Inability to coach soccer Sadness due to brain injury

Loss of Earning Capacity

• Plaintiff claims she could have been a Div. 1 women’s soccer coach, earning about $100,000/ year if not for her TBI.

The Jury• Josh Sandman, a 31 year old tennis instructor who also works at a health club (mine).

Josh is single and volunteers to teach kids to play tennis. He indicated that he really needed to be at work. He suffered a concussion about 6 or 7 years ago in a fight and he has had no problems since then.

• Samantha Huff, a 24 year old medical assistant. She works for a medical research lab that conducts tests on GI tract issues. She is single.

• Carol Steward, a 63 year old employee of the U of A. She works in the Continuing Education department. Her husband is a music professor. They have two adult children.

• Kenneth Mecum a 24 year old intern. He has his degree in history and geography and is looking for permanent employment.

• Evelyn Bersack, a 50 year old employee of the National Weather Service. Her husband is retired. She watches Fox News.

• Valerie Siewerth, 59 year old dispatcher. She and her husband were sued in a case that caused them a lot of grief. She and her husband used to own an air conditioning business.

• Margarita Buenamea, 61 year old CNA. She is divorced. • Jeff Hentsch, a 46 year old hotel manager. He manages the Residence Inn near the

airport. His sister is an adjuster. His mother suffered a stroke and some brain damage.

Opening Statements

• Plaintiff told the story of a 5 year old girl who became adept at soccer and dreamed of playing for UNC and the US National Team and then becoming a coach. This accident ended that dream and she was unable to continue on her career path of becoming a soccer coach for a Div. 1 school. Mr. Kelly told the jury about her being called a “mean mommy”, and that she had done everything that her doctors told her to do.

• We reminded the jury that sympathy is not a basis for a jury award and

that her records indicated that she did not suffer a concussion or brain injury. We also pointed out that even the testing done by Plaintiff did not show significant issues, but rather a few areas that are out of the norm. Our testing showed that she did not have a brain injury at all.

Nick Sunderhaus • He and Danielle met in high school on the soccer field. • She was an honor student and top athlete. • She went to UNC while he remained home and then they moved in

together in Carolina after she completed her eligibility. • They were married in 2005 and he really wanted a family. • She wanted to get back to soccer and found a position in Arizona so they

moved here. • Since the accident he has noticed a change in personality.• She is not as sharp and has memory issues. She still has neck pain and

headaches daily. It has affected her relationship with her children who called her a “mean mommy.” She can’t read due to her inability to concentrate and focus, she can’t remember names of friends and relatives and she is in constant pain. One time, at the U of A, she booked the team for the wrong weekend and she thought they were going to have to pay for the mistake. She will tell him when “today is not a good day.”

John Smith Accident Reconstruction Expert

• D going 20 mph at impact - agreed with black box• Showed videos of rear end at 5,7,9,11 mph• Delta v of 11 mph, consistent with TBI• 5 mechanisms for TBI all present

Acceleration/decelerationCentrifugal force – can’t be measuredBiochemical changes- can’t be measuredShearing forces – can’t be measuredVascular changes- can’t be measured

Robert Crago

• Results showed areas consistent with a brain injury or dysfunction.

• Her scores showed a slow reaction time. • QEEG testing is now accepted as valid and showed

several areas of concern. • He spent about a month working with her before she

moved to Georgia in the middle of treatment.• Prognosis was good if she would have continued

treatment• Treatment in Florida was reasonable and necessary.

Crago testing result

Cross Exam

• Admitted that his results do not show that her results are consistent with a TBI.

• Agreed he did not have any sample size to show that Plaintiff fit in any sample of TBI.

• Testing cannot differentiate between the 1998 concussion, micro trauma from heading the ball in soccer, the MVA, or the Cincinnati Zoo incident.

• Uses QEEG testing to establish that exposure to mold can cause TBI.

Jena Cogswell

• Ms. Cogswell played at UNC with Sunderhaus. She was present when Plaintiff suffered her concussion in 1998. She continued to play with Plaintiff who seemed to have recovered fully from the concussion. She did not notice that Sunderhaus had any problems after the concussion.

ER record

• This is a 30 year old otherwise healthy female who presents after being the restrained driver struck from behind while she was stopped at a stop sign at approximately 40 mph. There was no airbag. The patient was looking backwards at the time and is now complaining of neck pain. She denies chest pain, shortness of breath, denies LOC. Remembers entire accident. CGS score is 15

Glen Marks Ph.D.• Dr. Marks testified that in his opinion, Plaintiff suffered a mild

traumatic brain injury in this accident. • Dr. Porter referred her to him for treatment. He treated her for about

1 year.• He tested her on the INTEG neuro test which showed some mental

deficits which are consistent with her symptoms.• Her IMPact scores 12 days after the accident proved that she had a

brain injury in this accident. • Elite athletes would be expected to test in the top 5% of the norm of

neuropsyche testing. Plaintiff’s scores showed several deficits. He said that multiple concussions expose an individual to greater damage and slower recovery.

• Incident at Cincinnati Zoo was a 3rd concussion and was caused by this MVA

ImPACT score

Marks Testing

Marks Cross Exam• Admitted that his testing showed only four areas outside the

norm. • Admitted that she told him that she had some residual

problems “ever since” from her 1998 concussion but he could not remember what those problems were.

• Agreed that MMPI is the gold standard for neuropsyche testing. He admitted that the testing done by Blackwood was the normal battery of tests done by neuropsychologists.

• Admitted that he administered a series of tests that showed her higher order executive functioning was well within normal limits.

• Malingering score deemed valid but withheld for reasons of confidentiality.

John Galas • Mr. Galas was flown in from Oregon where he coaches a youth

team. He testified that Mrs. Sunderhaus was a great addition to the coaching staff. He said she was very organized and very pleasant. After the accident she had problems keeping up with her work and he helped her with some of the administrative duties.

• On cross he stated that while she had trouble with administrative duties, she was still able to work with the players and even scrimmaged with the players. He stated that part of the problem is that she had to take time to go to doctor appointments which took a lot of time. As far as he knows she was still able to do headers and to play in scrimmages.

Danielle Sunderhaus

• Dreamed of being best• Played on UNC championship teams• Played on US Women's National Team with

Mia Hamm and Brandi Chastain• Video of her 98 concussion• Always wanted to be a coach• Had headache in courtroom, vomited every

week for the first year

MVA

• No ambulance because worried about children.• Not a good memory of accident , dazed.• Problems with reading, concentration, mood

control, daily headaches.• Called mean mommy, admitted she was mean.• Slipping out of control.

Con’t

• Short term memory is lacking.• Good long term memory.• Forgot to unload dishwasher.• Misplaces keys and wallet.• Keeps a brush in her car to remind herself not to “

lose it” with her kids.• Had to get prism lenses to help judge distances.• Was on track to be Div. 1 coach.• She was not terminated when Oyen resigned.

P con’t

• Did not claim LOE in interrogatories.• Would not admit careless when hit head at Zoo.• Still runs 6 days/ week.• Cracked her head on cabinets, fell in pool.• Told PT that she could read as much as she

wanted.• Denied she told Marks that she had residual

problems from 98.

P con’t

• Denied she told reflexologist that she went weeks without headache.

• Denied she and her husband spent hours looking up TBI and treating doctors.

• Admitted that her cumulative GPA was 2.4 not 2.9.

Other Records/ Tucson Treatment

• One year of biofeedback with Marks• 4 months of PT at ProActive• Prism lenses by Dr. Weisman optometrist• One month of neurofeedback with Crago• One visit to Carol Henricks MD• MRI normal CT scan normal• 4 months of massage therapy • 5 months of acupuncture• 9 months naturopathic and vision therapy with Will

Polec, NMD and Tanya Polec

2013 - 2015

• Envision – vision therapy and convergence issues.

• Koberda MD and Ph.D for brain mapping• 18 months reflexology• 9 months chiropractic• 2 months neurotherapy

Koberda

Koberda

Lori Walker Flown in From Ohio

• Head coach at Ohio State University• Knew P from national development squad• Recruited P to play for OSU• Talked to P at Arizona when OSU beat AZ in

2011 about being a Div. 1 coach• Considered P top 2 or 3% of candidates for

head coaching jobs/ had a portable family• Coaches earn about $100,000/ year.

Jazmin Ponce Flown in From Cal

• Played at AZ for 4 years• 4 year starter• Still friends and helps with soccer camps in

Georgia• After MVA P always wore sunglasses• P used stickies after MVA• P was forgetful• P was withdrawn after MVA

Barry Hendin M.D.

• P suffers from depression.• She does not have a brain injury.• QEEG testing is not accepted as a diagnostic tool.• He would be able to detect a brain injury on an

IME.• She suffered a whiplash and 2 or 3 months of

treatment would be appropriate.• Cannot rewrite ER visit with new claim of being

dazed and confused.

Daniel Blackwood Ph.D.

• Conducted neuropsyche testing in July 2013• Showed some psychiatric issues but no brain injury• Athletes do not score higher than general population

on neuropsyche testing• ImPACT testing must have a baseline. P score 12 days

after MVA are meaningless with a high symptom score and no baseline.

• One concussion 10 years ago does not put someone at any greater risk

• He is a consultant for the Arizona Cardinals.

Wayne Bixenman M.D.

• Ophthalmologist• Review of all the vision records shows that there

was no change in vision post accident• Prism lenses were so weak that he could put them

in jurors glasses without anyone noticing• P did not have any convergence issue• P medical records do not document convergence

issues and contradict themselves• Cannot put prisms in contacts

Candice Osei Agyemang

• She started at U of A in fall of 2011• Did not notice any changes in Coach Sunderhaus

until the fall of 2012• P did participate in scrimmages• Did not notice any issues with memory,

patience, or ability to coach until fall of 2012

Mykaylin Rosenquist

• Freshman in fall of 2011• Played on defense, P was defensive coach• Noticed in fall of 2012, P did not seem as

enthusiastic• She never noticed any issues with P forgetting player

names, plays.• First heard about any injuries when contacted by my

investigator in 2013.• Does not remember any glasses.

John Beck Ph.D• QEEG testing or brain mapping is not accepted as

diagnostic tool. It is not reliable.• Crago’s testing does not show any significant brain

impairment.• Dr. Koberda’s brain mapping in 2013 contradicts Marks’s

findings but is essentially normal.• Marks testing is not reliable because the malingering

score was not revealed.• Brain injuries do not wax and wane.• Testing must have symptom validity test to account for

lack of effort either conscious or unconscious.• Good old days reporting of pre MVA abilities.

Beck

• Research studies show initial small effect on neuropsychological tests that dissipates quickly.

• Testing shows complete recovery (return to baseline) in 100% of sample by 3 days.

• No permanent residual.• Evidence of persisting problems present in

moderate to severe TBI.

GCS

• Normal is 13 -15• Obeys verbal commands – 6 points• Fully oriented and conversant – 5 points• Opens eyes spontaneously – 4 points• Her score was 15

Uncomplicated mTBI

• Glasgow Coma Scale• Loss of consciousness• Post-Traumatic Amnesia

Outside Influence/ Something Else to Worry About

• The bailiff brought to the Court’s attention that there was a Time magazine in the jury room which reported on the story of a high school football player who committed suicide due to a TBI. (The Court had randomly put magazines in the jury room)

• The jurors were polled at my request and while several said they saw the article, all said they had not read the article and it would not affect their deliberations!!

P Closing Arguments

• P asked for $450,000 for past• How much would P pay if she could to get rid of

her daily pain? At $50/day her future pain and suffering would be about $850,000.

• She followed her doctor’s advice• She lost her dream• She wants her life back, not be a mean mommy.

D Closing Argument• Eyes are a window to the heart of this case• Bixenman said there was no vision change at all.

No need for prism lenses, no convergence issues.• Indicates that there was no brain injury• Dr. Hendin said she had a whiplash with about

$9,500 in treatment for 2 to 3 months• Give her another $2,000 or $10,000.• If she was in so much pain, why no doctor / no

medication for daily headaches.• Blackwood testing showed no TBI in July 2013

Argument

• “If the facts are against you, argue the law. If the law is against you, argue the facts. And if both the facts and the law are against you, abuse your adversary”

• If the facts are in your favor pound on the facts, if the law is in your favor pound on the law and if neither, then pound on the table.

Closing Argument

• Do not let the man who burned down your house, tell you what it is worth

Pretrial offers

• P served OJ with Complaint for $125,000• D served OJ for $35,000 a year before trial

Verdict

• Jury awarded $50,000

Juror Thoughts• Examples of brain injury not persuasive

– We all forget our keys– We all yell at our kids– We all forget to turn on the dishwasher– We all bump into things– We all forget appointments and thingsBarry Hendin was the best expert. He explained things in a way we could understandShe was probably hurt, probably had a concussion, but it wasn’t as bad as she wanted us to believe.She never went to see a doctor after UMC. If I had headaches I would go to a doctor. “Westernized medicine.”Never took any pain meds, never saw a headache specialist.Just could not connect the accident to all of her symptomsSeemed to get more treatment after she filed suitHow can she run 6 days/ week if she can’t judge distances

Resources