Bicycle crash changed young man's life



T

Tim McNamara

Guest
"Jay Beattie" <[email protected]> writes:

> Also, everybody claims a brain injury -- usually a subtle "mild
> traumatic brain injury" which makes the plaintiff cranky and
> forgetful. Or maybe he was cranky and forgetful before the injury.
> Who knows. That is where the neuropsychologists come in with a
> battery of tests. Interpreting these tests is like reading tea
> leaves unless the plaintiff has a pretty serious brain injury.
> That's where you get some pretty good expert battles.


A good standardized neuropsychological test battery (Halstead-Reitan,
for example) can be very objective and the interpretation can be made
quite confidently. Many neuropsychologists pick and choose tests,
however, for a variety of reasons including their own bias, the
difficulty of administration, etc. The Weschler Memory Scale, for
example, is a difficult test to administer. Some neuropsychologists
will use projective tests like the Rorschach, Thematic Apperception
Test, House-Tree-Person, etc., and IMHO these are little better than
reading tea leaves.

What is harder to predict is the functional effects of brain injury on
a person's life because there are factors that affect outcome besides
the brain injury and the cognitive impairments that may arise from
those. Motivation, mood disorders, pre-existing conditions, social
support, the competence of the rehabilitation therapists, etc can have
an enormous impact on outcome. I wonder if lawsuits for compensation
for brain injuries can provide a disincentive to have a positive
outcome? After all, the victim is likely to get more money the more
impaired they are. I don't know if any research has been done on
this.
 
T

Tim McNamara

Guest
"Jay Beattie" <[email protected]> writes:

> Also, everybody claims a brain injury -- usually a subtle "mild
> traumatic brain injury" which makes the plaintiff cranky and
> forgetful. Or maybe he was cranky and forgetful before the injury.
> Who knows. That is where the neuropsychologists come in with a
> battery of tests. Interpreting these tests is like reading tea
> leaves unless the plaintiff has a pretty serious brain injury.
> That's where you get some pretty good expert battles.


A good standardized neuropsychological test battery (Halstead-Reitan,
for example) can be very objective and the interpretation can be made
quite confidently. Many neuropsychologists pick and choose tests,
however, for a variety of reasons including their own bias, the
difficulty of administration, etc. The Weschler Memory Scale, for
example, is a difficult test to administer. Some neuropsychologists
will use projective tests like the Rorschach, Thematic Apperception
Test, House-Tree-Person, etc., and IMHO these are little better than
reading tea leaves.

What is harder to predict is the functional effects of brain injury on
a person's life because there are factors that affect outcome besides
the brain injury and the cognitive impairments that may arise from
those. Motivation, mood disorders, pre-existing conditions, social
support, the competence of the rehabilitation therapists, etc can have
an enormous impact on outcome. I wonder if lawsuits for compensation
for brain injuries can provide a disincentive to have a positive
outcome? After all, the victim is likely to get more money the more
impaired they are. I don't know if any research has been done on
this.
 
J

Jay Beattie

Guest
"Tim McNamara" <[email protected]> wrote in message
news:[email protected]
> "Jay Beattie" <[email protected]> writes:
>
> > Also, everybody claims a brain injury -- usually a subtle

"mild
> > traumatic brain injury" which makes the plaintiff cranky and
> > forgetful. Or maybe he was cranky and forgetful before the

injury.
> > Who knows. That is where the neuropsychologists come in with

a
> > battery of tests. Interpreting these tests is like reading

tea
> > leaves unless the plaintiff has a pretty serious brain

injury.
> > That's where you get some pretty good expert battles.

>
> A good standardized neuropsychological test battery

(Halstead-Reitan,
> for example) can be very objective and the interpretation can

be made
> quite confidently. Many neuropsychologists pick and choose

tests,
> however, for a variety of reasons including their own bias, the
> difficulty of administration, etc. The Weschler Memory Scale,

for
> example, is a difficult test to administer. Some

neuropsychologists
> will use projective tests like the Rorschach, Thematic

Apperception
> Test, House-Tree-Person, etc., and IMHO these are little better

than
> reading tea leaves.


The problem I typically run in to is poor baseline measurements,
vis., not knowing whether the plaintiff was absent minded or dumb
as a rock before the accident -- or whether subtle problems in
some of the tests are due to other problem like like of sleep,
poor motivation, drugs, etc. Then you have to rely on the
examiner's opinion on whether the plaintiff was really trying.
There is also the problem of brain injury versus psychological
reaction to the injury problems. I'm sure you know more about
this than I do, but I can shop the same test results to three
different neuropsychologists and get three different opinions.

> What is harder to predict is the functional effects of brain

injury on
> a person's life because there are factors that affect outcome

besides
> the brain injury and the cognitive impairments that may arise

from
> those. Motivation, mood disorders, pre-existing conditions,

social
> support, the competence of the rehabilitation therapists, etc

can have
> an enormous impact on outcome. I wonder if lawsuits for

compensation
> for brain injuries can provide a disincentive to have a

positive
> outcome? After all, the victim is likely to get more money the

more
> impaired they are. I don't know if any research has been done

on
> this.


Compensation neuroses, malingering, etc. etc. are common issues.
The bike cases tend to involve young and fit plaintiffs who are
surprisingly whiney and tend to over-blow their symptoms. I have
defended asbestos cases where the crusty old shipyard worker
plaintiff has six months to live and complains less than some of
these wounded Bohemian bikers. I am sympathetic, really -- I
have banged my own head several times and paid the price. I
believe in closed head injury. But to listen to these people . .
.. . -- Jay Beattie.
 
J

Jay Beattie

Guest
"Tim McNamara" <[email protected]> wrote in message
news:[email protected]
> "Jay Beattie" <[email protected]> writes:
>
> > Also, everybody claims a brain injury -- usually a subtle

"mild
> > traumatic brain injury" which makes the plaintiff cranky and
> > forgetful. Or maybe he was cranky and forgetful before the

injury.
> > Who knows. That is where the neuropsychologists come in with

a
> > battery of tests. Interpreting these tests is like reading

tea
> > leaves unless the plaintiff has a pretty serious brain

injury.
> > That's where you get some pretty good expert battles.

>
> A good standardized neuropsychological test battery

(Halstead-Reitan,
> for example) can be very objective and the interpretation can

be made
> quite confidently. Many neuropsychologists pick and choose

tests,
> however, for a variety of reasons including their own bias, the
> difficulty of administration, etc. The Weschler Memory Scale,

for
> example, is a difficult test to administer. Some

neuropsychologists
> will use projective tests like the Rorschach, Thematic

Apperception
> Test, House-Tree-Person, etc., and IMHO these are little better

than
> reading tea leaves.


The problem I typically run in to is poor baseline measurements,
vis., not knowing whether the plaintiff was absent minded or dumb
as a rock before the accident -- or whether subtle problems in
some of the tests are due to other problem like like of sleep,
poor motivation, drugs, etc. Then you have to rely on the
examiner's opinion on whether the plaintiff was really trying.
There is also the problem of brain injury versus psychological
reaction to the injury problems. I'm sure you know more about
this than I do, but I can shop the same test results to three
different neuropsychologists and get three different opinions.

> What is harder to predict is the functional effects of brain

injury on
> a person's life because there are factors that affect outcome

besides
> the brain injury and the cognitive impairments that may arise

from
> those. Motivation, mood disorders, pre-existing conditions,

social
> support, the competence of the rehabilitation therapists, etc

can have
> an enormous impact on outcome. I wonder if lawsuits for

compensation
> for brain injuries can provide a disincentive to have a

positive
> outcome? After all, the victim is likely to get more money the

more
> impaired they are. I don't know if any research has been done

on
> this.


Compensation neuroses, malingering, etc. etc. are common issues.
The bike cases tend to involve young and fit plaintiffs who are
surprisingly whiney and tend to over-blow their symptoms. I have
defended asbestos cases where the crusty old shipyard worker
plaintiff has six months to live and complains less than some of
these wounded Bohemian bikers. I am sympathetic, really -- I
have banged my own head several times and paid the price. I
believe in closed head injury. But to listen to these people . .
.. . -- Jay Beattie.
 
Lucas Iragusa writes:

> From the article it appears that Resch (the plaintiff), was not
> apprised as to why the bike was recalled. Nor was he warned to
> refrain from riding the bike - the store employee reassembled it
> with, one can only assume, the intention that its owner use it
> pending the arrival of the requisite parts and further servicing.


>> If that's the case, I contend he shouldn't be entitled to even a
>> dime.


> According to the article, the plaintiff claims that he was
> uninformed as to the reason of the recall and not warned from riding
> the bike. Smells like $.


How was this determined? I don't think I would offer that the shop
advised me not to use the bicycle if I were in that position. We have
no testimony from the defense about what warnings were given. I
didn't see the recall notice but believe that these usually state why
the announcement is given and what the consequences might be.

> If I were a juror I'd like to know the specifics behind the forks
> 'separating'. Also - in the parlance of Fork-gate! - what did
> Canadian Tire/Procycle know and when did they know it.


And what did they say in their recall announcement.

Jobst Brandt
 
Lucas Iragusa writes:

> From the article it appears that Resch (the plaintiff), was not
> apprised as to why the bike was recalled. Nor was he warned to
> refrain from riding the bike - the store employee reassembled it
> with, one can only assume, the intention that its owner use it
> pending the arrival of the requisite parts and further servicing.


>> If that's the case, I contend he shouldn't be entitled to even a
>> dime.


> According to the article, the plaintiff claims that he was
> uninformed as to the reason of the recall and not warned from riding
> the bike. Smells like $.


How was this determined? I don't think I would offer that the shop
advised me not to use the bicycle if I were in that position. We have
no testimony from the defense about what warnings were given. I
didn't see the recall notice but believe that these usually state why
the announcement is given and what the consequences might be.

> If I were a juror I'd like to know the specifics behind the forks
> 'separating'. Also - in the parlance of Fork-gate! - what did
> Canadian Tire/Procycle know and when did they know it.


And what did they say in their recall announcement.

Jobst Brandt
 
Lucas Iragusa writes:

>> Interestingly, they don't say whether he was wearing a h*lm*t.
>> Usually if the victim wasn't, it gets reported as the most
>> significant factor by pious journalists who have never ridden a
>> bike since they turned 14.


> I agree; this is infuriating. By the same standard news accounts of
> pedestrians struck dead[1] by autos should note whether the victim
> was wearing a h*lm*t.


Also, I notice that the rider fell on his face smashing his jaw and
forehead, areas not protected by bicycle h*lm*ts. Of the head
injuries I have witnessed, most were the face and a couple the skull
below and behind the ear. All were wearing h*lm*ts.

The term "face-plant" is appropriate because that is the most common
serious impact.

Jobst Brandt

["h*lm*t" is used to avoid the kill file that weeds out postings
containing the dread word.]
 
Lucas Iragusa writes:

>> Interestingly, they don't say whether he was wearing a h*lm*t.
>> Usually if the victim wasn't, it gets reported as the most
>> significant factor by pious journalists who have never ridden a
>> bike since they turned 14.


> I agree; this is infuriating. By the same standard news accounts of
> pedestrians struck dead[1] by autos should note whether the victim
> was wearing a h*lm*t.


Also, I notice that the rider fell on his face smashing his jaw and
forehead, areas not protected by bicycle h*lm*ts. Of the head
injuries I have witnessed, most were the face and a couple the skull
below and behind the ear. All were wearing h*lm*ts.

The term "face-plant" is appropriate because that is the most common
serious impact.

Jobst Brandt

["h*lm*t" is used to avoid the kill file that weeds out postings
containing the dread word.]
 
L

Luke

Guest
In article <[email protected]>,
<[email protected]> wrote:

> > According to the article, the plaintiff claims that he was
> > uninformed as to the reason of the recall and not warned from riding
> > the bike. Smells like $.

>
> How was this determined?


Indeed it hasn't been determined; the veracity of the plaintiff's
position is yet to be decided by the court as the case in still in
progress. (I prefaced my statement with 'according to the article').

> I don't think I would offer that the shop
> advised me not to use the bicycle if I were in that position. We have
> no testimony from the defense about what warnings were given.


Still, I find it odd that the store employee or management would
reassemble the bike with the defective forks, then send the owner on
his way without obtaining a waiver releasing it of responsibility
should the mishap that subsequently befell the plaintiff occur.
Inadmissable speculation: that they didn't leads me to *suspect* that
they didn't consider the threat of failure sufficiently imminent.

> I
> didn't see the recall notice but believe that these usually state why
> the announcement is given and what the consequences might be.


Perhaps Sandy can weigh in on this fact: "Claims against Tanner Thomas,
the employee who worked on the bike, have been dismissed." This
employee would have been apprised of the cause of the recall (since he
knew the replacement part was unavailable); perhaps he did inform the
plaintiff of the specifics after all. Or is it routine in cases such as
these to hold the company liable first and foremost?



Luke
 
L

Luke

Guest
In article <[email protected]>,
<[email protected]> wrote:

> > According to the article, the plaintiff claims that he was
> > uninformed as to the reason of the recall and not warned from riding
> > the bike. Smells like $.

>
> How was this determined?


Indeed it hasn't been determined; the veracity of the plaintiff's
position is yet to be decided by the court as the case in still in
progress. (I prefaced my statement with 'according to the article').

> I don't think I would offer that the shop
> advised me not to use the bicycle if I were in that position. We have
> no testimony from the defense about what warnings were given.


Still, I find it odd that the store employee or management would
reassemble the bike with the defective forks, then send the owner on
his way without obtaining a waiver releasing it of responsibility
should the mishap that subsequently befell the plaintiff occur.
Inadmissable speculation: that they didn't leads me to *suspect* that
they didn't consider the threat of failure sufficiently imminent.

> I
> didn't see the recall notice but believe that these usually state why
> the announcement is given and what the consequences might be.


Perhaps Sandy can weigh in on this fact: "Claims against Tanner Thomas,
the employee who worked on the bike, have been dismissed." This
employee would have been apprised of the cause of the recall (since he
knew the replacement part was unavailable); perhaps he did inform the
plaintiff of the specifics after all. Or is it routine in cases such as
these to hold the company liable first and foremost?



Luke
 
L

Leo Lichtman

Guest
There may be another way to fold this and hold it to the light: At the time
of the accident, the boy was 16 years old. Even if we assume, for the sake
of discussion, that the father was adequately warned, how binding is this on
his minor son? I am not so sure a minor can waive his rights simply because
he lacks the judgement of an adult. Further, if the father was warned, and
failed to warn his son, or take adequate precautions, the case might
actually be one of child endangerment.

I believe if you take your car into a garage for brake work, and the
mechanic finds it to be unsafe to operate, they are not supposed to let you
drive it out. Why wouldn't the same principle apply to a bicycle?
 
L

Leo Lichtman

Guest
There may be another way to fold this and hold it to the light: At the time
of the accident, the boy was 16 years old. Even if we assume, for the sake
of discussion, that the father was adequately warned, how binding is this on
his minor son? I am not so sure a minor can waive his rights simply because
he lacks the judgement of an adult. Further, if the father was warned, and
failed to warn his son, or take adequate precautions, the case might
actually be one of child endangerment.

I believe if you take your car into a garage for brake work, and the
mechanic finds it to be unsafe to operate, they are not supposed to let you
drive it out. Why wouldn't the same principle apply to a bicycle?
 
M

Michael Press

Guest
In article <[email protected]>,
[email protected] wrote:

[...]

> ["h*lm*t" is used to avoid the kill file that weeds out postings
> containing the dread word.]


Why do you compensate? Do you care what someone like that
thinks?

Helmet. Helmet. Helmet. Helmet. Helmet. Helmet.

--
Michael Press
 
M

Michael Press

Guest
In article <[email protected]>,
[email protected] wrote:

[...]

> ["h*lm*t" is used to avoid the kill file that weeds out postings
> containing the dread word.]


Why do you compensate? Do you care what someone like that
thinks?

Helmet. Helmet. Helmet. Helmet. Helmet. Helmet.

--
Michael Press
 
D

David

Guest
Luke wrote:
> In article <[email protected]>,
> <[email protected]> wrote:
>
>
>>>According to the article, the plaintiff claims that he was
>>>uninformed as to the reason of the recall and not warned from riding
>>>the bike. Smells like $.

>>
>>How was this determined?

>
>
> Indeed it hasn't been determined; the veracity of the plaintiff's
> position is yet to be decided by the court as the case in still in
> progress. (I prefaced my statement with 'according to the article').
>
>
>>I don't think I would offer that the shop
>>advised me not to use the bicycle if I were in that position. We have
>>no testimony from the defense about what warnings were given.

>
>
> Still, I find it odd that the store employee or management would
> reassemble the bike with the defective forks, then send the owner on
> his way without obtaining a waiver releasing it of responsibility
> should the mishap that subsequently befell the plaintiff occur.
> Inadmissable speculation: that they didn't leads me to *suspect* that
> they didn't consider the threat of failure sufficiently imminent.
>
>
>>I
>>didn't see the recall notice but believe that these usually state why
>>the announcement is given and what the consequences might be.

>
>
> Perhaps Sandy can weigh in on this fact: "Claims against Tanner Thomas,
> the employee who worked on the bike, have been dismissed." This
> employee would have been apprised of the cause of the recall (since he
> knew the replacement part was unavailable); perhaps he did inform the
> plaintiff of the specifics after all. Or is it routine in cases such as
> these to hold the company liable first and foremost?
>
>
>
> Luke


OK, I held off as long as I could. IF I were on the jury, and IF what
has been regurgitated here is ALL the testimony, I would also be left
wondering why the stepdad let the poor boy on the bike... why else would
there be a recall except for a safety issue?

Regarding the release of the mechanic from the lawsuit... I'm guessing
his pockets were relatively shallow compared to the other usual suspects
(not that the LBS itself has deep pockets, but they probably have
insurance).

Maybe there should be a rec.bicycles.tech.legal_debate group <smile -
this is what we do when it is too cold to ride>. And yes, I know and
appreciate the fact that not everybody here is in the Northern hemisphere.

David
 
D

David

Guest
Luke wrote:
> In article <[email protected]>,
> <[email protected]> wrote:
>
>
>>>According to the article, the plaintiff claims that he was
>>>uninformed as to the reason of the recall and not warned from riding
>>>the bike. Smells like $.

>>
>>How was this determined?

>
>
> Indeed it hasn't been determined; the veracity of the plaintiff's
> position is yet to be decided by the court as the case in still in
> progress. (I prefaced my statement with 'according to the article').
>
>
>>I don't think I would offer that the shop
>>advised me not to use the bicycle if I were in that position. We have
>>no testimony from the defense about what warnings were given.

>
>
> Still, I find it odd that the store employee or management would
> reassemble the bike with the defective forks, then send the owner on
> his way without obtaining a waiver releasing it of responsibility
> should the mishap that subsequently befell the plaintiff occur.
> Inadmissable speculation: that they didn't leads me to *suspect* that
> they didn't consider the threat of failure sufficiently imminent.
>
>
>>I
>>didn't see the recall notice but believe that these usually state why
>>the announcement is given and what the consequences might be.

>
>
> Perhaps Sandy can weigh in on this fact: "Claims against Tanner Thomas,
> the employee who worked on the bike, have been dismissed." This
> employee would have been apprised of the cause of the recall (since he
> knew the replacement part was unavailable); perhaps he did inform the
> plaintiff of the specifics after all. Or is it routine in cases such as
> these to hold the company liable first and foremost?
>
>
>
> Luke


OK, I held off as long as I could. IF I were on the jury, and IF what
has been regurgitated here is ALL the testimony, I would also be left
wondering why the stepdad let the poor boy on the bike... why else would
there be a recall except for a safety issue?

Regarding the release of the mechanic from the lawsuit... I'm guessing
his pockets were relatively shallow compared to the other usual suspects
(not that the LBS itself has deep pockets, but they probably have
insurance).

Maybe there should be a rec.bicycles.tech.legal_debate group <smile -
this is what we do when it is too cold to ride>. And yes, I know and
appreciate the fact that not everybody here is in the Northern hemisphere.

David
 
S

Sandy

Guest
Dans le message de
news:[email protected],
john <[email protected]> a réfléchi, et puis a déclaré :
> Sandy wrote:
>
>> If you are indeed curious enough, the pleadings and much of the
>> discovery materials are public record, and you could go read the
>> basics to form your opinion.

>
> Hi Sandy
> How does one do that from a remote location? Are there any charges
> involved?
>
> Thanks, John


To the extent that there are electronically submitted and archived
pleadings, you may be able to access them on-line. Depends on the
jurisdiction, and sometimes on the local budget. For copies of depositions,
they can be obtained. All of this costs money for reproduction or for
on-line access. Lawyers for the parties are not likely to give any of this
away free, and were it my client (either side), I would avoid being
cooperative. Why ? Because during the course of trial, you're busy enough
as it is.
 
S

Sandy

Guest
Dans le message de
news:[email protected],
john <[email protected]> a réfléchi, et puis a déclaré :
> Sandy wrote:
>
>> If you are indeed curious enough, the pleadings and much of the
>> discovery materials are public record, and you could go read the
>> basics to form your opinion.

>
> Hi Sandy
> How does one do that from a remote location? Are there any charges
> involved?
>
> Thanks, John


To the extent that there are electronically submitted and archived
pleadings, you may be able to access them on-line. Depends on the
jurisdiction, and sometimes on the local budget. For copies of depositions,
they can be obtained. All of this costs money for reproduction or for
on-line access. Lawyers for the parties are not likely to give any of this
away free, and were it my client (either side), I would avoid being
cooperative. Why ? Because during the course of trial, you're busy enough
as it is.
 
L

Luke

Guest
In article <[email protected]>, David <[email protected]>
wrote:

> Maybe there should be a rec.bicycles.tech.legal_debate group <smile -
> this is what we do when it is too cold to ride>. And yes, I know and
> appreciate the fact that not everybody here is in the Northern hemisphere.
>
> David


Case adjourned!
 
J

Johnny Sunset

Guest
Sandy wrote:
> Dans le message de
> news:[email protected],
> john <[email protected]> a réfléchi, et puis a déclaré :
> > Sandy wrote:
> >
> >> If you are indeed curious enough, the pleadings and much of the
> >> discovery materials are public record, and you could go read the
> >> basics to form your opinion.

> >
> > Hi Sandy
> > How does one do that from a remote location? Are there any charges
> > involved?
> >
> > Thanks, John

>
> To the extent that there are electronically submitted and archived
> pleadings, you may be able to access them on-line. Depends on the
> jurisdiction, and sometimes on the local budget. For copies of depositions,
> they can be obtained. All of this costs money for reproduction or for
> on-line access. Lawyers for the parties are not likely to give any of this
> away free, and were it my client (either side), I would avoid being
> cooperative. Why ? Because during the course of trial, you're busy enough
> as it is.


And more importantly, if it is not for the client, it can not be
billed.

--
Tom Sherman - Fox River Valley