Traumatic Brain Injury Demand Letter
G. LIFE EXPECTANCY
Brian Forrester was born on August 1, 1966, and was thirty-one (31) years old at the time of this tragedy. According to the Vital Statistics of the United States, 1993 Life Tables, Brian's life expectancy on August 25, 1997 was forty-four (44) years.
H. PER DIEM EVALUATION
One of the accepted methods under Texas law for arguing damages in cases of this type is the per diem argument. For purposes of our present evaluation, we will employ a per diem approach to the damages. We will take the segmental approach to damages in evaluating Brian's damages because we feel that various elements of damages were greater immediately following the collision and changed thereafter.
Brian has a life expectancy of 16,071 days. For purposes of a per diem argument, Brian's life expectancy includes 257,136 conscious hours predicated on sixteen waking hours per day. We will use this figure for the calculation of his conscious pain and suffering, mental anguish, physical disability, and physical disfigurement.
I. SPECIAL DAMAGES
1. Medical Expenses - Accrued
The medical expenses arising out of Brian's hospitalization at Memorial, B.R.R.I., St. Elmo's Hospital and TLC at the current time total $400,000.00. However, claims are being made by health care providers on a day-to-day basis and this number continues to increase.
2. Medical Expenses - Future
As a result of Brian's severe traumatic brain injuries, it is certain that he will have to undergo various physical and mental rehabilitation processes in the future. Dr. Timothy Majors, Brian's treating neuropsychologist, compiled a brief summary of Brian's future rehabilitation and medical needs. He emphasized areas such as treatment for depression; pain management; and intensive cognitive rehabilitation. He also indicated that it is of paramount importance that Brian receive treatment for his depression.
Dr. Majors has also recommended individual psychotherapy for both Brian and Jackie, as well as marriage counseling for the two of them due to the many adjustments and severe impact that this traumatic experience has had on both of them. A copy of the rehabilitation cost estimate which reflects the types of treatment Brian will need throughout his lifetime is provided in the attached Exhibit List. At this time the projected cost of neurocognitive rehabilitation is $810,300.00.
Dr. Majors's evaluation was devoted primarily to the need for neurocognitive rehabilitation. He was not asked to take into account Brian's herniated cervical disc or his herniated nucleus pupolsi in his low back. The neurocognitive treatment evaluation also did not calculate the need for a replacement bipolar hemiarthroplasty every six to seven years at a total cost of $125,000.00 - $150,000.00.
We are currently having a life care plan prepared which will be ready in time for the mediation. However, for our present purposes we anticipate that the total medical expenses, past and future, will total $1,400,000.00
3. Damage to Wage Earning Capacity
At the current time, Brian's neurologist and neuropsychologist, Drs. Galloway and Majors, do not feel that he will be able to participate in competitive employment in the future. For this reason, Mr. Forrester employed Dr. Everett G. Liebermann to evaluate his lost wage earning capacity. Based on a work life expectancy to age seventy, Dr. Liebermann estimates that the present value of lost wages and lost wage earning capacity is $1,983,867.00. This value takes into account Brian's past salary of $54,000.00 per year for 1997, which had increased every year since 1989 with the exception of 1996 when Mr. Forrester went through a career change.
J. GENERAL DAMAGES
1. Physical Pain and Suffering
Brian is entitled to recover for the physical pain which accompanied this tragic collision. He presently endures and will continue to endure physical pain into the future as a result of the comminuted fracture of the right femoral head and accompanying dislocation, the right colonic mesentery tear, the herniated cervical disc, and the herniated nucleus pupolsi.
We will ask a jury to award a minimum of $100.00 per hour for twenty-four hours per day for the first fifteen days after the collision for a total of $36,000.00 of physical pain arising out of Brian's personal injuries. We plan to present testimony of David Jamison and Jack Dunnley, two eyewitnesses to the accident, who will testify that Brian was screaming in excruciating pain with blood pouring from his mouth at the scene of the accident. Additionally, we will elicit testimony from Jackie regarding Brian's excruciating pain the first fifteen days of his stay at Memorial. She will describe angry and tearful moments when she begged the nurses to give him more pain medication because he was screaming, crying, and praying to God to relieve the pain. We also plan to elicit testimony from the emergency medical technicians who arrived on the scene first and the emergency room and around-the-clock nurses at Memorial.
From September 8, 1997, to December 1, 1997, Brian was at Brounnel Rehabilitation and Research Institute during which time he underwent comprehensive evaluation of his severe brain injuries. At B.R.R.I. he underwent excruciatingly painful physical therapy on his hip so that he could learn to walk again. We will hear from Jackie regarding Brian's physical pain and suffering in this aspect as well. She will describe the tearful moments when the pain from the various operations he had undergone consumed most of his thoughts. We will ask a jury to award $25.00 per hour for sixteen waking hours per day for the eighty-four days in which Brian was at B.R.R.I. for a total of $33,600.00 of physical pain arising out of his personal injuries.
Brian spent sixty-one days at the Temple Learning Center at Llanview (TLC) where he underwent further physical therapy for his injuries. The physical pain from the hip injury began to diminish during his stay at TLC. However, as that pain diminished other pains became apparent. At TLC, Brian complained persistently about the extraordinary pain he was suffering as a result of his neck and back injuries. At times his neck pain was so severe that he could not turn his head at all without experiencing excruciating pain. We will ask a jury to award $25.00 per hour for sixteen waking hours per day for the sixty-one days from December 1, 1997, to January 31, 1998, for a total of $24,400.00 of physical pain and suffering arising out of Brian's personal injuries during his stay at TLC.
From February 1, 1998, to the present, which for present purposes we will estimate to be March 13, 1998, Brian has lived in an apartment while undergoing cognitive rehabilitation at the Challenge Program and Project NewStart. Some of his physical pain has subsided. However, he continues to have pain in the hip and cervical region as well as the lumbar region of his spine. Additionally, due to the floating bone fragments in his hip, he continues to suffer on a day-to-day basis. Therefore, we will ask a jury to award $10.00 per hour for sixteen waking hours per day for the forty-one days from February 1, 1998, to March 13, 1998, for a total of $6,560.00 of physical pain arising out of Brian's personal injuries.
Brian presently endures and will continue to endure physical pain into the future as a result of the comminuted fracture of the right femoral head and the accompanying dislocation. Currently, he walks with an exaggerated gait resulting from the severe physical pain caused by the broken hip. Additionally, there are floating bone fragments in his hip which cause increased pain. Brian's physicians have not yet determined whether surgery is possible to remove the bone fragments. If no surgery is foreseeable, the physical pain could potentially endure indefinitely.
Brian is not scheduled for surgery, however, it is a certainty that surgery is necessary in the future due to the heterotopic ossification in his hip and possibly due to the herniated disc in the cervical region and herniated disc in the low back. He certainly will need additional leg and hip surgery every five to seven years for life. Each of these surgeries will be accompanied by painful rehabilitation and decreased anatomical function and flexibility. As Brian ages, the injuries to his neck, low back, hip, and leg will grow perpetually worse as arthritic changes take place. Each of these changes will be accompanied by increasing physical pain. However, we are proceeding to mediation with the optimistic view that Brian's physical pain will subside within ten years. Therefore we will ask a jury to award $10.00 per hour for sixteen waking hours per day for ten years from March 13, 1998, for a total of $584,320.00 of physical pain arising out of Brian's personal injuries.
Therefore, for Brian's life expectancy of forty-four years which represents 16,071 days and 257,136 hours at sixteen hours per day, we will ask a jury to award a minimum of $684,880 of physical pain arising out of Brian's personal injuries.
2. Mental Anguish
Brian is entitled to recover for the mental anguish accompanying this tragic collision. Dr. Brent Galloway and Dr. Timothy Majors, Brian's treating neurologist and neuropsychologist, have made it clear in their reports that Brian currently suffers and will continue to suffer mental anguish into the indefinite future. Dr. Majors states in a report dated February 13, 1998:
If he ever returns to work at any level of functioning, it will probably be at an entry level, minimum-wage type of employment situation.
Additionally, Dr. Majors stated:
Mr. Forrester frequently ruminates and worries about his career and his future employment status. As a result of his physical and cognitive impairments, he has lost confidence in himself and is fearful that he will not be able to support himself and his wife in the future. He has suffered a significant loss of self-esteem and has become severely depressed.
Dr. Galloway stated in a report dated February 2, 1998, that after the trauma, Brian suffered from severe depression. Further, in his neurological examination Dr. Galloway stated that Brian's mental status examination suggested underlying depression; that Brian was somewhat abulic; that he was somewhat passive and apathetic; and that he had some difficulty understanding the extent of his deficit but he recognized his limitations.
It is undisputed that Brian suffered severe mental anguish immediately following the collision. Although he has retrograde and anterograde amnesia, the undisputed witness testimony concludes that he suffered immense mental anguish immediately following the accident. Therefore, we will ask a jury to award $100.00 per hour for sixteen waking hours per day for the first fifteen days after this tragic incident for a total of $24,000.00.
The evidence further will show that Brian continued to suffer extreme mental anguish during the next eighty-four days which he spent at B.R.R.I. It was during this time that Brian realized what happened to him and that he would never again be able to function on the same level that he did prior to the accident. Before the ventriculoperitoneal shunt was placed inside of Brian to alleviate the hydrocephalus, his cognitive impairments were far more severe than they were immediately following the procedure. Therefore, we will ask a jury to award $100.00 per hour for sixteen waking hours per day for the eighty-four days in which Brian was at B.R.R.I. for a total of $134,400.00 of mental anguish arising out of this tragic incident.
During Brian's stay at TLC from December 1, 1997, to January 31, 1998, he continued to suffer extreme mental anguish as he finally came to the realization that he would never again compete in the high-tech computer field to which he was accustomed. Additionally, he had to deal with the fact that he would not be able to be the husband to Jacqueline that he had strived to achieve. It was during his stay at TLC that Brian discovered that he was partially blind in both his left and right eye. For these reasons we will ask a jury to award $100.00 per hour for sixteen waking hours per day for the sixty-one days he spent at TLC for a total of $97,600.00 of mental anguish arising out of this tragic incident.
Brian's mental anguish continues to grow on a day-to-day basis. Every day he becomes more depressed as he comes to the realization that his life, occupation, and marriage will never be the same. From February 1, 1998, to March 13, 1998, we will ask a jury to award $100.00 per hour for sixteen waking hours per day for forty-one days for a total of $65,600.00 of mental anguish arising out of this tragic incident.
As a result of the severe mental anguish that Brian has suffered, we anticipate that the minimum amount that we will ask a jury to award for compensation will be $10.00 per hour for the 253,920 hours of Brian's life expectancy from March 13, 1998. Thus, we will ask for a minimum recovery for the mental anguish accompanying Brian's physical injury in the amount of $2,539,200.00
Therefore, for Brian's life expectancy of forty-four years which represents 16,071 days and 257,136 hours at sixteen hours per day, we will ask a jury to award a minimum of $2,860,800.00 of mental anguish arising out of Brian's personal injuries.
3. Physical Disability
Under Texas law, this is the inability to perform those functions which give us pleasure in life, also known as loss of enjoyment of life. Brian has indicated that one of his main goals is to be able to resume his hobbies such as golf and computer programming. At the present time, he is physically unable to perform those functions due to his physical disabilities as well as his severe traumatic brain injuries.
Brian's physical disability immediately following the collision was justifiably higher than it is today. For the fifteen days he stayed at Memorial Brian was unable to perform any functions which give him any pleasure in life. Therefore, we will ask a jury to award $50.00 per hour for sixteen waking hours per day for the fifteen days following the collision for a total of $12,000.00 of physical disability arising out of Brian's personal injuries.
For the next one hundred eighty-six days, during Brian's stays at B.R.R.I., TLC, Challenge, and Project NewStart he regained some functions which give him pleasure in life such as walking and communicating with others. However, he was unable to resume other hobbies such as golf and computer programming. Therefore, we anticipate that the minimum amount that we will ask a jury to award for compensation for physical disability which Brian suffered during his one hundred eighty-six days at B.R.R.I. and TLC will be $25.00 per hour for sixteen waking hours per day for a total of $74,400.00 of physical disability arising out of Brian's physical disability.
From all of the information currently available, it is unlikely that Brian will ever be able to return to computer programming, golf, and many other functions which give him pleasure in life. For these reasons, we anticipate that the minimum amount that we will ask a jury to award for compensation for physical disability which Brian has suffered as a result of this incident will be $10.00 per hour for the 253,920 hours of Brian's life expectancy. Thus, we will ask for a minimum recovery for the physical disability accompanying Brian's physical injury in the amount of $2,539,200.
4. Disfigurement
Brian walks with an exaggerated limp resulting from the comminuted fracture of the right femoral head and accompanying dislocation arising out of this incident. This limp and resulting disfigurement has caused him considerable depression. Additionally, a jury may consider other elements of Brian's disfigurement including the facial scarring, the scarring from his hemicolectomy, the hemiarthroplasty, and various other scars; the inordinate rapid weight gain and weight loss that accompanied this incident; and his overall appearance. All of these factors contribute to an overall appearance of Brian which is considerably different to his appearance prior to the accident. We anticipate asking a jury to award a minimum of $100,000.00 for Brian's physical disfigurement arising out of this incident.
