Closed Head Injury after Bicycle Collides with Truck

Plaintiff Was On Back Of Friend’s Bike; Grades Declined After Accident
$240,000 Settlement

On Nov. 21, 1998, the 13-year-old plaintiff was a passenger on his 12-year-old friend’s bicycle. As the bicycle entered a main street in Braintree, it was allegedly struck by a pickup truck operated by a driver who was the sole stockholder of the corporate vehicle.

The plaintiff lost consciousness briefly at the scene. Thereafter, he was combative and dream-like. The minor plaintiff was brought by ambulance to the emergency room department of the Quincy Hospital. A CT scan was negative for intracranial injury. He was released that day. During the night he vomited and his parents brought him back to the hospital where a repeat CT scan was also negative.

Three witnesses were identified in the police report and all indicated the bicycle darted out. Moreover, one witness asserted that the minor plaintiff, the passenger on the bicycle, “saw the pickup truck and motioned the boy (the bicycle driver) to go on.” The witnesses estimated the truck’s speed at 5 to 10 mph. However, the physical evidence at the scene reflected 54 feet of skid marks and an impact point at or near the center of the roadway.

The minor plaintiff’s only additional medical treatment consisted of a checkup two days later at Harvard Vanguard, which indicated that he was feeling better with more energy. He was found to be alert and was not complaining of any headaches. In all future Harvard Vanguard visits, he was deemed to be an active teenager who was doing well. In December 1998, two weeks post-accident, he was noted to be playing sports.

After two-and-a-half years, the minor plaintiff’s mother consulted an attorney. School records showed a decline in grades following the accident, initially dropping by one letter grade but ultimately dropping by two letters in the second year post-accident. The standardized test scores also declined by approximately 20 percentiles.

The defendants contended that any injuries sustained by the plaintiff were relatively minor in nature and would have resolved themselves shortly after the accident. The defendants argued that the minor plaintiff’s “purported cognitive and emotional problems” were due to adolescent adjustment difficulties and familial problems, and not causally related to the accident of November 1998.

The defendants further contended that all medical evaluations were obtained approximately three years post-accident, after the plaintiff’s attorneys were retained.

The plaintiff’s medical history was significant for two other head traumas, both within one year of the accident for which his mother called Harvard Vanguard but which resulted in no actual visit.

With respect to liability, the plaintiff considered the following issues:

• The plaintiff was not wearing a helmet. However, the plaintiff maintained that G.L. c. 85, Sect. 11B(iii) required only persons 12 years of age or younger to wear a helmet on a bicycle; the plaintiff was 13. In any event, under Sect. 11B(iv), a violation of that provision shall not be used as evidence of contributory negligence in any civil action. Despite any anticipated limiting instruction on this point, the defendants maintained that a jury would be made aware that the plaintiff was not wearing a helmet.
• Any statements in the police report from the purported witnesses were argued by the plaintiff to be inadmissible under Keliv v. O’Neil, 1 Mass. App. 313 (1973), given that they were second-level hearsay or totem-pole hearsay. However, these witnesses could testify at trial to what they claimed they saw.
• The most harmful witness of the three not only alleged that the bicycle was a “dart-out” but that its operation was affected by tilting and gesturing from the plaintiff passenger. However, the plaintiff, through an investigator, located evidence of numerous convictions of that witness, including a felony conviction for which he was imprisoned and was within the time limits of G.L. c. 233, Sect. 21.

At mediation, the defendants argued that the conviction would be excluded despite the lack of discretion in the statute afforded the trial judge. The plaintiff countered that discretion had been permitted only in criminal cases where the probative value was balanced against unfair prejudice inapplicable to the facts here. The felony conviction arose out of a motor vehicle accident in which this witness crossed the double yellow line and caused personal injury. When asked about this accident in the witness’ deposition, he was not truthful regarding its circumstances. (The full facts relating to this witness’ accident were discovered only after his deposition.)

A neurologist evaluated the plaintiff. The neurologist then referred the plaintiff to a pediatric neurologist. The plaintiff also had neuropsychological testing and an adolescent psychologist assessed him. The experts opined that he had behavioral issues causally related to the accident, which manifested themselves in disinhibition and poor judgment. The IQ testing revealed above average intelligence but was significant for impairment of executive function.

Three years post-accident, a neuroradiologist hired by the plaintiff’s counsel recommended a brain MRI. The neuroradiologist determined that there was a microhemorrhage and that the absence of mineralization on the CT scans from the day of the accident and the day following indicated that there was no prior injury.

The neuroradiologist was expected to testify that an MRI is the best diagnostic tool for determining a shear injury, as it is not perceptible on a CT scan.

The defendants had a neuroradiologist who was expected to testify that there was no evidence of a microhemorrhage and that the MRI was entirely normal.

At mediation, the offer from both defendants was $30,000, which was increased to $50,000. Because the plaintiff perceived a willingness of the insurer for the 12-year-old bicycle driver (the homeowner’s carrier) to work toward resolution, the plaintiff split the mediation. After several hours, the plaintiff settled separately with the homeowner’s insurer for $125,000. Following that, the pickup truck driver’s insurer changed its posture toward settlement and ultimately offered $115,000.

• Type of action: Motor Vehicle Negligence
• Injuries alleged: Closed head injury
• Name of case: Withheld
• Court/case #: Norfolk Superior Court, No. 01-01749
• Tried before judge or jury: N/A (mediated)
• Name of mediator: James Ryan, JAMS
• Special damages: $2,200
• Amount of settlement: $240,000 ($125,000, bicycle driver;
  $115,000, pickup truck driver)
• Date: March 2004
• Highest offer: $1,800 (pre-suit)
• Attorneys: Robert I. Feinberg and Colleen Anthony, Feinberg & Alban,
  Boston (for the plaintiff)