Plaintiff–Defense Brain Injury Litigation and the Measurement of Functional Loss: Medical Foundations, Expert Evidence, Trial Strategies

M.D. | Kaplan Life Care Plan

Richard S. Kaplan, M.D. earned his BS in Engineering Science and a Doctor of Medicine degree with research distinction from the University of Miami College of Engineering and the University of Miami School of Medicine in 1990. Subsequently, Dr. Kaplan completed an internship in internal medicine at Mayo Clinic in Rochester, MN and a residency in physical medicine and rehabilitation at Mayo Clinic in Rochester, MN. Dr. Kaplan became Board Certified in Physical Medicine and Rehabilitation in 1995. Since completion of his medical training almost 30 years ago, Dr. Kaplan has continuously maintained a private practice of physical medicine and rehabilitation. For 15 years he was the Medical Director of acute inpatient rehabilitation at Uniontown Hospital, Uniontown, Pennsylvania. Additionally, treats outpatient with a wide variety of pain and physical disability issues. Dr. Kaplan is licensed in 10 states, and he is certified as a life care planner. For over 25 years, he has participated extensively in a wide variety of forensic evaluations related to physical rehabilitation including evaluations of pain, disability, medical malpractice, personal injury, impairment, and medical necessity issues. Dr. Kaplan’s forensic work in this regard is spread widely and essentially equally among requests from plaintiff’s, defendants, and neutral bodies such as government entities. Additionally, within his practice of life care planning, Dr. Kaplan subspecializes in life expectancy consultation; he maintains an extensive personal library of LCP-related peer reviewed literature and has developed software applications and databases to help in him analyzing such cases. Dr. Kaplan has additionally taught life care planning courses to other life care planners nationally through SEAK and Strafford.

Peter LeGrand | Donohue Brown Smyth LLC

Peter LeGrand’s practice is concentrated on professional liability litigation, particularly in defending healthcare professionals. Although he primarily practices in Illinois, Peter has appeared and participated in healthcare professional liability litigation around the country. Peter has tried multiple jury trials to verdict, including in the service of emergency medicine professionals.

Peter graduated magna cum laude from the University of Illinois College of Law in 2018. His article The Potential Unconstitutionality of the Consumer Financial Protection Board and its Ramifications for the Elderly was published in the Elder Law Journal. Prior to law school, he graduated magna cum laude from the University of Missouri in 2014.

Session I – Litigating Brain Injury Cases: Legal Strategies for Measuring Loss of Function from Both Sides | 1:00pm – 2:00pm

• Building and challenging the legal theory of loss of function
  • Crafting plaintiff and defense narratives around functional loss without over relying on medical jargon
  • Structuring the case theory early: Causation, foreseeability, duty, breach, and comparative fault
  • Managing inconsistent facts, pre-existing conditions, and gray areas in impairment evidence
• Discovery strategy in brain injury litigation
  • What attorneys must obtain early to frame functional-loss claims: Prior medical records, employment history, digital/social media activity, rehabilitation histories
  • Defense-focused discovery tools to test the credibility of reported deficits (employment records, surveillance, electronic data, collateral interviews)
  • Plaintiff strategies for locking down admissions, limiting alternative-cause theories, and compelling insurer compliance
• Working with (and against) experts — attorney tactics
  • Developing admissible, litigation-ready expert opinions: avoiding Daubert traps
  • Deposition strategy: Eliciting clear explanations of functional loss for juries
  • Cross-examining neuropsychologists, rehabilitation physicians, and life-care planners: Exposing overreach, bias, or unsupported methodologies
  • Coordinating multidisciplinary expert teams for plaintiff vs. defense
• Translating functional deficits into legal damages (without repeating clinical content)
  • Constructing a persuasive damages model across economic and noneconomic categories
  • Plaintiff strategy: Weaving functional loss into wage-loss claims, home-support needs, supervision, loss of household services, and loss of enjoyment of life
  • Defense strategy: Narrowing damages—challenging medical necessity, projecting recovery potential, exposing speculative assumptions
• Using evidence persuasively in mediation and negotiation
  • Leveraging functional-loss evidence to drive settlement value
  • How each side uses demonstratives, timelines, and day-in-the-life elements without duplicating medical testimony
  • Negotiating catastrophic cases involving lifelong care: plaintiff-side valuation vs. defense-side risk analysis
• Trial strategy: Presenting or undercutting loss of function to a jury
  • How to simplify complex cognitive/functional issues so jurors understand the true impact
  • Plaintiff courtroom strategies
    1. Narratives that humanize the functional impact
    2. Effective use of visual aids, testimony sequencing, and real-world analogies
  • Defense courtroom strategies
    1. Undermining functional-loss claims without appearing insensitive
    2. Highlighting variability, recovery, and alternative explanations
  • Building closing arguments around credibility, consistency, and objective anchors
• Practical pitfalls and lessons from the trenches
  • Avoiding attorney missteps when dealing with brain injury evidence (e.g., overstating deficits, relying on weak experts, ignoring inconsistent records)
  • Strategies to maintain credibility with judges, jurors, and mediators
  • Brief illustrative case lessons from Peter’s catastrophic-injury practice (without confidential details)

Break | 2:00pm – 2:10pm

Session II – Measuring Loss of Function in Brain Injury Cases: A Dual-Perspective Approach | 2:10pm – 3:10pm

• Brain injury functional-loss concepts
  • Definitions: Impairment vs. disability vs. handicap as applied to brain injury
  • The role of a physiatrist/life-care planner in assessing brain injury
  • Types of brain injuries (traumatic, anoxic, concussive) and functional domains affected (cognitive, physical, emotional/behavioral)
• From the plaintiff’s perspective: Establishing and quantifying loss of function
  • Identifying and documenting pre-injury baseline and post-injury decline in function
  • Use of rehabilitation assessments (e.g., neuropsychological testing, functional capacity evaluation, activities of daily living) and life-care plans to project future care needs
  • Articulating future medical/rehabilitation/life-care cost streams and diminished lifetime capacity (employment, social participation) for damages presentations
  • Strategies for selecting and engaging experts (physiatry, neuropsychology, life care planning) and preparing them for deposition/trial
• From the defense’s perspective: Challenging and constraining loss of function
  • Scrutinizing the causation and attribution of functional deficits: Pre-existing conditions, co-morbidities, rehabilitation compliance, malingering/motivation, differential diagnosis
  • Critically evaluating the methodology of life-care plans and future-cost projections: Assumptions, discounting, inflation, alternative care models
  • Cross-examination themes for brain injury experts: Functional validity, effort testing, longitudinal change, alternative explanations for deficits
  • Crafting a defense narrative: Comparative functional benchmarks, minimization of future loss, re-employment/rehabilitation potential
• Bridging both perspectives: Key concepts and pitfalls in measuring functional loss
  • Impairment rating vs. functional inability: When each is applicable and how they are interpreted in disputes
  • Use of objective vs. subjective measures in brain injury (e.g., imaging, neuropsychological test results, functional performance)
  • Presenting functional loss via life-care needs and daily life impact (e.g., “day-in-the-life” evidence) and how each side frames the story
  • Practical tips for attorneys: Timing of expert retention, coordinating medical/rehab records, setting up the life-care expert engagement, avoiding common traps (over-reliance on unsupported assumptions, unsupported future-cost inflation, weak foundation for causation)
  • Illustrative case examples (without breaching confidentiality) or hypotheticals: How the same functional deficit might be presented differently by plaintiff vs. defense