Winning The TBI Case

“Most probate lawyers don’t know anything whatsoever about personal injury. They’ve never handled a personal injury case, don’t know how to, and don’t understand why you’re doing what you’re doing at all, and that can be dangerous.” – Price Johnson

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

What’s In This Episode
Tom is joined by Price Johnson, a Dallas probate attorney, and CPA who is the kind of specialist trial lawyers call when a severely injured client may lack the capacity to sign a contract or approve a settlement.

A severely injured TBI client walks through your door with a loved one by their side. The injury is clear. The case is real. But the client cannot sign your contract. What do you do? When do you act? And who is your client?

Price Johnson walks through the practical realities of representing clients whose capacity is in question. He covers the three paths available to attorneys in these situations. He explains the “incapacity trap” that can turn strong damages proof into a procedural problem. And he reveals the specific reason why calling a probate specialist should happen earlier than most trial lawyers think.

At stake is more than procedure. In a contingency case, how do you protect your fee when a probate judge later gets a say in whether it was reasonable? Price walks through:

If you’ve ever worried about whether your contract will hold up or your fee will survive probate court scrutiny, this conversation is for you.

 One of the most common mistakes I see is lawyers screening for TBI will simply stop at asking the question, “Were you knocked unconscious?” – Tom Crosley

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

What’s In This Episode

The success of a case often depends on decisions made in the earliest days, long before depositions, expert testimony, or trial. In this episode, Tom explains why the first six months matter enormously and what lawyers need to do during the first 18 months to shape the medical and legal framework of the entire case.

Using a real case example, Tom demonstrates what can happen when persistent brain injury symptoms are not adequately documented early. He then walks through his approach to identifying potential TBI cases, tracking symptoms, and supporting accurate medical documentation.

Go Beyond Loss of Consciousness: Intake forms should explore memory, confusion, altered mental status, acute symptoms, and what others observed immediately before and after the injury.

Create a Written Symptom Record: Vague descriptions such as feeling “foggy” or “not myself” may not adequately capture what a client is experiencing. Written symptom questionnaires can help clients organize their symptoms and communicate them more accurately to their treating physicians. Tom recommends the following four symptom forms:

Avoid Gaps in Medical Documentation: Persistent symptoms need to reach the treating physician. Long periods without meaningful documentation can make an otherwise legitimate injury significantly more difficult to prove later.

Know When to Expand the TBI Workup: For clients with persistent symptoms, Tom discusses when to consider advanced neuroimaging and whether a neuropsychological evaluation is warranted.

Reassess as the Case Develops: As the case progresses into the 12-to-18-month window, repeat neuropsychological testing or neuroimaging may help document whether the client’s condition has improved, remained stable, or changed over time.

This episode is for trial lawyers who handle serious injury cases but may not regularly litigate TBI cases. Tom’s message is simple:

The goal is not to overbuild every potential brain injury claim. It is to recognize legitimate TBI cases early enough to develop the medical and factual record needed to accurately demonstrate the client’s injury when the case reaches trial.

Defense experts often rely on a familiar set of arguments in traumatic brain injury cases. The challenge for plaintiff lawyers is knowing how to identify those themes and effectively challenge them.

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

This episode is for plaintiff lawyers who want to recognize and dismantle the predictable defense expert playbook in TBI cases. Dorothy Clay Sims reveals the recurring tactics they use and shares the research methods to expose their weaknesses.

In this episode, Tom sits down with attorney Dorothy Clay Sims, author of Exposing Deceptive Defense Doctors and a nationally recognized authority on defense medical testimony. Drawing on decades of experience, Dorothy discusses the recurring strategies she sees in TBI litigation and the patterns that appear again and again in defense opinions. She also shares practical steps lawyers can take to identify weaknesses in those opinions and build a stronger case for their clients. Dorothy shares insights on:

Whether you’re new to TBI litigation or looking to sharpen your approach, this episode offers practical guidance for recognizing and responding to the defense playbook.

Host: Tom Crosley Guest: Dorothy Clay Sims Runtime: 35:58

[00:00] Dorothy Clay Sims (cold open): What we found out recently in a case in California is the defense expert altered the test administration and/or changed our client’s answers 67 times during the examination. 

[00:12] Announcer: TBI cases can feel like navigating uncharted territory. Your client’s injury is real, but proving it is where the real challenge begins. If you’ve ever felt like you’re missing crucial pieces of the puzzle, you’re in the right place. Welcome to Winning the TBI Case, where Tom Crosley shares the insights he’s gained from over 60 injury trials. Not just the victories, but the lessons learned along the way that make all the difference. This is practical wisdom from someone who’s been in your shoes and found a path forward. Winning the TBI Case: strategy, science, and storytelling. 

When Dorothy Clay Sims discovered that defense experts were systematically lying about her brain injury clients, she made it her life’s work to expose their deceptive tactics. In this eye-opening interview, Dorothy shares the tools every trial lawyer needs to identify and challenge fraudulent medical testimony. 

[01:18] Tom Crosley: Welcome back to Winning the TBI Case. I’m Tom Crosley. Today’s guest is Dorothy Clay Sims. She’s a lawyer who has spent decades studying how defense medical experts operate: how they write their reports, how they testify, tactics they use to minimize or deny injury claims. And if you’ve ever read a defense IME report and thought, “Oh, here we go again,” then this episode is for you. 

We’re gonna walk through what Dorothy actually does for trial lawyers, when you should consider retaining her, what you can learn from her, and hopefully give a practical framework for researching a defense doctor and building a cross-examination strategy that’s clean, fair, and powerful. All of this without turning the courtroom into a boring medical seminar. So let’s get into it. Dorothy, how are you doing today? 

[02:13] Dorothy Clay Sims: I’m good. How are you doing, Tom? 

Tom Crosley: I’m doing great. So you and I have known each other for, gosh, a long, long time. Almost 20 years now — more than 15 years for sure. A lot of your background I’m familiar with, but we may have listeners who aren’t. So I wanted to start with: what drew you into studying defense medical testimony in the first place, carving out this niche in your law practice? 

[02:42] Dorothy Clay Sims: Well, my motivation, actually, it’s this guy right here. His name was David Hansford Sims. He was my brother. He had a very severe disability. He could not ever speak, communicate. He would sit for hours on end shaking a sock. And I saw how he was treated, and it really bothered me. And I felt like I wanted to represent disabled people. 

And then the more I did it, the more defense reports I got, the more I realized these people are lying. And so one day, after 60 cases in a row where the same doctor said my clients were faking based on the MMPI, I went and met the creator of the MMPI, and I showed him the last report, and he started laughing. And I said, “What’s so funny?” And he said, “If this doctor had been my student, I would have failed him. This is not an appropriate interpretation of the test.” 

I knew that they were lying — defense experts in general — but I didn’t know how. And so he actually became a friend of mine, and we spent hours together, and he would give me examples, questions to ask, and this is how they manipulated the science. 

And I ended up doing a lot of brain injury work because there’s neuropsychological testing, and that is an area where I’ve seen incredible fraud. What we found out recently in a case in California is the defense expert altered the test administration and/or changed our client’s answers 67 times during the examination. It got so bad that during the cross-examination, the judge says, “Okay, you can stop. We know they did it all wrong.” We didn’t want to stop, but it was terrible. So the more I get into this, the angrier I get. 

I spent several years taking all these tests myself, having physicals performed on me to understand how those are altered. And then I worked closely with my husband, who’s a physical medicine and rehab doctor, and he ran a brain injury clinic. And he watches the videotapes of the defense medical exams, looks at the report, and then he goes into the body of the report and lists everything they misrepresented based on the video. He’s done probably 700 of these. And when I asked him what percentage of the time the doctor actually accurately reflected what happened in the report — knowing that they were being recorded — the answer is zero. 

[05:06] Tom Crosley: Some years ago, you wrote a book called Exposing Deceptive Defense Doctors. I actually bought that book, gosh, 20 years ago maybe. I don’t remember when it was published. But it was one of those three-ring binder books that was multiple volumes, very expensive for a young lawyer at the time. But I recall that book being instrumental in helping me approach defense IMEs. This was not brain injury cases; these were typically spine injury cases. 

Dorothy Clay Sims: Right. 

Tom Crosley: But since that time, it sounds like you’ve been doing a lot of work on brain injury cases. 

[05:39] Dorothy Clay Sims: Yeah, and that book has had significant updates. It’s probably twice as long. I have a lot of references to diffusion tensor imaging — I know you had a piece on that. There’s a lot of politics going into articles that are written saying don’t use it. It’s unbelievable in that field what’s happening. But yeah, the book is longer and there’s a lot more updated information in it. 

[05:57] Tom Crosley: I need to get it. So we had as a previous guest Stewart Casper, who you and I both know very well. And he and I talked about the concept of the citation cartel. 

Dorothy Clay Sims: Yes. 

Tom Crosley: So I’m assuming that’s a little bit of what you’re referring to in your previous comment just now. 

[06:14] Dorothy Clay Sims: Well, there is such a thing. And in fact, one of the problems we have is people are afraid to talk about it, especially professionals, because a certain number of defense experts are very litigious. But yeah, when you have a defense expert become the head of a journal, deciding what gets published and what doesn’t, and that individual doesn’t even allow an article published by the creator of a test that is being analyzed and criticized in that journal — they don’t allow the test creator to weigh in. It’s bad. 

[06:41] Tom Crosley: I know you speak a lot around the country and even internationally, and I’ve heard you speak several times. You’re always very entertaining. Some of the examples you give are so incredibly outrageous as to defy belief. 

Dorothy Clay Sims: Yes. 

Tom Crosley: And I haven’t had those examples actually appear in my cases, because I’m usually dealing with pretty known quantities. I mean, I’ve had you do opposition research for experts. You provided packets of information. But what I’d like to hear is the normal — what are you doing for lawyers like me, either by helping us prep for these defense experts, or sometimes, I know, you’ll come in and do them yourself as part of our case? Help us understand what you’re doing when you don’t have this crazy outlier who’s lied on his résumé and put in degrees that he doesn’t have and things like that. 

[07:41] Dorothy Clay Sims: I don’t know anybody else that does what I do, and I haven’t had a regular caseload in over 20 years. That’s all I do. But, for example, if I’m looking at a report, I can see there’s something. What I’ll do is I’ll take the report and I’ll take the transcript, and I will analyze what is in the transcript that the doctor misrepresented. Like yesterday, the doctor testified under oath, “Oh, your client has high blood pressure and diabetes, and that’s why there’s cognitive problems. And she told me that.” Well, in the transcript, she said, “I do not have diabetes,” and, you know, et cetera. 

So I use some AI proprietary software to help with that, and I get a chart of everything that’s misrepresented. And then I go in — I have material on over 2,000 experts nationwide, and some of it’s 12,000 pages long — and I’ll use software to go in there and tell me what’s in the background that they testified to that’s completely contrary to the report. 

And so I’ll analyze that, and then I either will tell the lawyer, “Don’t have me take this deposition, because this expert did so badly you need to save it for trial, because there’s no excuse for what they did” — which, those are my favorite — and then I just tell them what questions to ask and give them the exhibits. Or I just go in and take the deposition myself. 

And when I do it, I’m using AI all day now. I have various AI sites open so that when the doctor cites an article, I can go in and say, “What’s the problem with the article?” Even if I don’t know where to find the article, I just describe it. In the middle of the deposition, it’ll come up with something like, “Oh, there were only three people in the normative database. This is not scientific.” And so when the defense experts start citing the literature, it’s clear they haven’t read it, right? And they don’t even really know what it says. I find that happens all the time. And so when you start using AI to go after them, it bothers them. 

So I’ll either take the deposition myself or prepare the lawyer to do it. And sometimes I can look at a report and know immediately, over the phone: “Okay, you don’t need me at all. Here’s the problem, and here’s how to fix it.” 

I also do private seminars where lawyers will come in and discuss two or three cases. They will come to my home in Oregon. My husband will look at the medical records and will tell them, “These are your weaknesses.” We record the whole thing. “This is what the defense will do. This is how to fight it. This is what you need to do to clean up the case or to prove it.” 

[10:06] Tom Crosley: Dorothy, it’s interesting the way you described your practice, and I think it leads to what I’d like to talk about next, which is — in brain injury cases, because this is a TBI-specific podcast — there are recurring themes we see over and over again from defense experts. 

Dorothy Clay Sims: Yes. 

Tom Crosley: And what they’re trying to get the jury to buy into. And so I’d like to discuss first: what are the recurring themes? I know what I would think, but I’d like to talk to you about it. And then after we identify the recurring themes, I’d like you to talk to us about your strategies for overcoming those. 

[10:44] Dorothy Clay Sims: Okay. The recurring things are so predictable that actually my husband and my son, who’s a plaintiff’s lawyer here in Los Angeles, have been tasked by Trial Guides with writing a book on it. And they’ve got the top 30 typical themes that are spewed forth by bad defense experts. And those themes are so predictable, it’s gotten to the point now where, when I find out who the expert is, I can write the report. I know what they’re going to say. 

For brain injury, what they’re gonna say is there was no loss of consciousness at the scene and no evidence from a healthcare provider the patient was dazed, okay? That’s ridiculous, because dazed is an experience that the patient — the plaintiff — experiences. It doesn’t mean that they’re telegraphing it to the EMS or to the ER. 

And if I could digress on that for a moment: I always get these reports that have a normal neurologic exam from the ER, and the EMS says no loss of consciousness, and there was a witness that saw it — there was a loss. What’s going on? And then I came upon a bad crash, a really bad one, with seven people, and one woman was dying. She had agonal breathing. There was one EMT that was available for seven people, and he was color-coding those that were most severe. 

It occurred to me that the EMTs, when they’re working a crash site and there’s more than one person, they’re not going to do a Glasgow Coma Scale. They’re not going to test for awareness. They’re not going to ask the person, “Are you confused?” So they’re not documenting it. Plus, they may not document their records until 24 to 48 hours later, and they don’t remember. 

Why does the ER say everything’s normal? And this really bothered me. I had a theory that the ER was making stuff up. So I wrote for my own three ER visits over the last 15 years. All three of them had a tremendous amount of things that the ER doctor did in the report that never happened in reality. About two-thirds of the reports — all three were false. 

And so my concern is, how do we prove it? And that’s when I learned you can write for the metadata. In bigger hospitals, they keep track: when the doctor goes in the room, he clicks on an iPad, and that starts the clock running for when he’s with the patient. And if you show that the doctor spent seven minutes with the patient, there’s no way they could have done all the neurologic exam that’s listed in the medical records. And they will admit to that. So we as lawyers need to start automatically writing for that information in those cases where we think that the ER minimized what happened. 

[13:21] Tom Crosley: Are you seeing that obtained in discovery in non-medical malpractice cases? Because I haven’t seen that yet. 

[13:26] Dorothy Clay Sims: I have been begging lawyers for the last 12 months to start doing this, when I first learned about it, and they’re just now starting to do it. And in one previous malpractice case — and I’m going to talk about that in a minute — I told them, “I guarantee you that radiologist never looked at the brain scan.” And they said, “That couldn’t be. He wrote this long report.” They wrote for the audit trails, and the expert admitted they never looked at it and signed off on the report. 

Tom Crosley: Holy moly. That’s crazy. 

Dorothy Clay Sims: Problem. My husband and I do live international AI interviews, and we interviewed two radiologists — they’re on my website. And they both said, yes, radiologists believe that AI is better than they are. And so they’re signing their names to the reports but never looking at the scans. And what we’re finding — like in one case, there was a lemon-sized stroke in this guy’s brain, and AI missed it, and the doctor signed off on it. So that is an issue to be aware of for your own personal health and your family. 

[14:31] Tom Crosley: I’ve got a friend who’s a neuroradiologist here in San Antonio. He does not want to do any of this legal case work, but I’m going to have to ask him about that. 

[14:40] Dorothy Clay Sims: Well, think about this. Another thing you can do is, when they do look at it, the metadata will tell you how long they looked at it. And there was a case in Florida where the doctor looked at the scans for 60 seconds, and there were 5,000 slices. 

Tom Crosley: Holy moly. 

Dorothy Clay Sims: And so all they did is make a movie of 5,000 slices going — you know, 5,000 in one minute. The jury was furious. 

Tom Crosley: Yes. 

Dorothy Clay Sims: So you have to be careful. The other problem in a brain injury case is the plaintiff’s radiologists — unless they’re forensically retained, they are missing all kinds of stuff that I’m seeing when I open up the scan. So don’t rely on that if you have a brain injury case. 

[15:21] Tom Crosley: I Completely agree with you there. I can’t tell you how many times I’ve had a retained radiologist — somebody I hired to spend the time to do an overread — of preexisting scans that came back as normal. 

Dorothy Clay Sims: Exactly, and they can see the damage. 

Tom Crosley: That ought to be part of the playbook for every plaintiff lawyer handling these cases. 

[15:38] Dorothy Clay Sims: Well, the other thing is the right scan to ask for. If someone wants to email me — [email protected] — I have what you want to ask for. You want susceptibility-weighted imaging at two millimeters. You want everything else at one. The more slices, the more you’re gonna find the damage. If it’s five millimeters apart, you’re gonna miss half of it. 

So we talked about the myth that they’re fine at the emergency room. Well, they’re not. And how can you, as the lawyer, prove it? I’ve started asking all the lawyers that I work with: “Hey, I want you to ask your client to send you all text messages sent the day of the crash and the day after, and all emails.” And if you get those, you may very well find — about half the time we see this — stuff’s not making sense. They were clearly dazed, right? 

[16:29] Tom Crosley: So I know that when we have other people — family, friends, et cetera — with the plaintiff in the ER, that becomes powerful. But a lot of times we don’t, right? We just have the record. 

Dorothy Clay Sims: Right. [unclear] 

Tom Crosley: All right, so I started this sequence of questions by saying, “Hey, what are some of the common defense themes?” I’m gonna throw out some of mine. At some point I’d like to shift into what we do, in your opinion, to overcome them. 

So the ones I often see are: no objective findings on routine scans — normal imaging. Whatever the issue is must be psychological, or stress, or anxiety, or preexisting depression, or preexisting fill-in-the-blank, right? Inconsistent history — it’s not really the plaintiff’s fault that providers will write down historical information maybe differently, but, you know, they’ll get punished for if, God forbid, a record from Dr. A has a different history than a record from Dr. B. Secondary gain and exaggeration — almost always with defense neuropsychs, not always. And then sometimes we’ll see, with a biomechanical expert, the mechanism of injury was too minor to have caused this TBI. 

Those are the ones that I often see. I made a little list before I started. Do you think there are any other big-ticket items that we need to make sure are included in the list of common defenses? 

[17:54] Dorothy Clay Sims: Yeah, I think the claim that every mild traumatic brain injury gets better — we know that’s not true. And I think the one thing that I see the plaintiffs’ lawyers miss — and it’s not their fault, it’s the doctor’s fault — is there’s a lot more wrong with the client than you realize. Oftentimes these people have human growth hormone deficiencies and no one ever catches that, or they have a dysautonomia. I always tell the lawyers: make sure somebody measures your client’s heart rate and blood pressure lying down, sitting, and standing, because about a third of the time we’re finding dysautonomia, which means they can’t regulate their blood pressure. It can be fatal. It’s very serious. So we as lawyers need to do a deeper dive into the different kinds of things that a brain injury can cause. 

But as to the defenses you talked about — I wrote them down — let’s start with the normal brain scan. Well, here’s how this rolls: the brain scan’s normal except for the areas where it’s not. And what I’ve had defense experts do is write reports calling them normal, but in reality, they’re not describing what’s on the scan, and they’re avoiding it. 

For example, if your client has a lot of increased white matter, or little white dots on the MRI, that can be due to ischemic disease or trauma, depending on where it is. The defense expert will see those lesions and not describe them, and just pronounce it normal, because “everybody that age has those lesions.” Well, first of all, that’s not true. And second of all, if there’s a lot of lesions, that’s also not true. And third of all, if the lesions are at or near the gray-white junction, that’s trauma. And so they ignore all that literature and they plead ignorance. 

But the other thing that they’re doing — they’re so deceitful. I actually had to get a bite guard from my dentist when I found this out, because I was grinding my teeth so much. I had this case where the doctor writes this long report, and he shows all these images, and he says, “You can see clearly the above images are completely normal.” And this is what lawyers should look out for. Okay, well, wait a minute: what is the series and slice number on that image? I want to find the image in my scan. And that’s when I found out it was someone else’s brain. 

Tom Crosley: What? 

Dorothy Clay Sims: Yeah. And you know what? This has happened to me once a month in the last six months. Someone else’s brain. 

Tom Crosley: Wow. 

Dorothy Clay Sims: So the tip is: if there’s no series or slice number, you can’t find it on your own scan. And my subpoena, which I’m glad to share, says the radiologist, when they show up for deposition, shall be prepared to share their screen and show me where the images are — because they always say, “Oh, I don’t have the ability to do that.” Well, that’s ridiculous. So if you don’t see any identifying factor on the scan, then it may not be your client. But if you do see a partial identification, then it’s probably someone else. 

Plus, another game they play is, if the lesion’s up here, they’ll show you a slice down here. 

[21:07] Tom Crosley: Right.  

Dorothy Clay Sims: Or they can dial up the contrast and make it disappear. 

Tom Crosley: Yeah.  

Dorothy Clay Sims: I mean, there’s all kinds of little games that they play, right? 

Tom Crosley: I think you have to have your own radiologist to combat a radiologist. 

Dorothy Clay Sims: Yeah. And I always tell my own radiologist that I’m using, “You know, they may serve you a subpoena for your audit trail. You need to make sure you spend sufficient time on this.” And that’s helpful because it’s better for my client, independent of whether the defense asks for it or not. 

Yeah, in that particular field, there’s incredible fraud going on. 

[21:46] Tom Crosley: Okay, so how do you recommend lawyers build their case files so that the defense doctor can’t get away with this kind of stuff? 

[21:58] Dorothy Clay Sims: Well, it depends on the doctor, and it depends on the position that they’re taking. One of the things that’s important is to use artificial intelligence. You’ve got to start using it now. Although I just got a decision where a judge entered an order saying all of the prompts and the research used for the lawyer’s AI research were not protected by any kind of privilege. So it’s kind of a new area that we’re dealing with. 

But the reality is this: you can figure out a way to anonymize the medical records and feed them all in and say, “Tell me all the symptoms that could be caused by a brain injury.” You will find stuff in those medical records that you completely ignored — you know, certain blood abnormalities, oxygen saturation. There’s a goldmine of things. 

And that’s helpful because I create a before-and-after chart where I list as many as 150 new diagnoses and symptoms. And then I say: Pre-existed? No, no, no, no, no, no. Can trauma cause? Yes, yes, yes, yes, yes. Was it found after the crash? Yes, yes, yes. So I’ve got like 150 different new symptoms, all of which can be explained by the crash. So when they take the position that it’s all in your client’s head, you can show that’s not true. 

My client’s depression didn’t cause lesions in the brain, or atrophy of the brain, or an abnormal videonystagmogram, or saccades, or nystagmus. All you do is pick the objective findings and say, “Being sad doesn’t cause this, right?” It doesn’t cause a herniated disc, et cetera. It’s ridiculous. 

[23:32] Tom Crosley: So actually, that’s my favorite cross-examination strategy of a defense medical expert: to go through all the medical records of my client and identify everything that is consistent with the claimed injury. Make them — you know, basically make them teach it to the jury — that here it is in the records in black and white, and this is consistent with the injury. 

[23:57] Dorothy Clay Sims: Exactly, and then I attach the chart as an exhibit. But here’s another: usually it’s the neuropsychologist or psychologist that’s saying it’s all psychological, right? Oftentimes? 

Tom Crosley: Yes. 

Dorothy Clay Sims: So when that happens — I love it — I did a deposition yesterday of a neuropsychologist. “Your client has no brain damage.” Okay, did you read all the medical records? “Of course I did.” And here’s the key question: Did you understand them all? And there’s this long pause, and she says, “Of course not.” So, okay, that’s a problem. 

And if they say yes, all you do is go into the records and look at a chart, or look at some numbers on a videonystagmogram or EEG, and say, “What do these numbers mean?” They won’t know. And so they don’t know what’s in the medical records. And if you ask them, “Are you an expert on the anatomy of the brain? Because if so, I’m going to ask you questions,” they almost always say no. And so they should not be testifying as to the cause of a brain injury when they can’t interpret the brain scan. They didn’t even look at it, and they don’t understand the medical records. That is ridiculous. They should not have the ability to do that, right? 

For example, the Test of Memory Malingering: you look at 50 pictures. Well, if you give the pictures too quickly to the patient, they can’t remember them. The instructions say let the patient look at the images for 199 seconds. The defense expert cuts the time to 70 seconds. And when you say, “Wait a minute, you didn’t follow the manual, you did it too quickly. You caused them to fail this malingering test.” And they did it on purpose, I’m sure. And when we’ve caught them at this, the judges have said, “Why did you do this?” And their response is generally, “I don’t know.” Well, we know, right? 

Another thing that happens is they change our client’s answers. They’ll give the MMPI or a test like that, where you fill in a bubble sheet, and then the doctor later goes and inputs the answers in the computer to get an interpretive report. But they change the answers. And so when we get the raw data, we can just check to see if the bubble sheet matches the printout — and it doesn’t, right? I mean, that’s just so stupid. It’s unbelievable. And yet they’re using this to conclude malingering. 

In this case I was reviewing earlier for somebody, the doctor writes a report and says, “Oh, there was clear poor effort on an embedded measure.” And then I look at the tape, and what he did was he gave the Reliable Digit Span. You just repeat strings of numbers, right? And if you miss too many, you’re considered to have failed. Well, the doctor didn’t follow the instructions and read the numbers far too quickly. So again, he made my client fail. 

But, are any of these tests valid in the first place? No, I do not believe any of these validity tests are valid. The theory is, if you don’t remember the old item that you looked at, and instead you identify the new item, you’re faking. Does that make sense? 

Tom Crosley: Yeah, I mean, it doesn’t make sense to me, but I understand the argument that they use. 

Dorothy Clay Sims: Yep. Right. Here’s the problem with that: psychological research tells us that when you’re under stress, you have a divided memory, which means you can’t focus as well. If you’re under stress being evaluated by someone that you want to write a good report, that’s a splitting of your attention right there. And most of these malingering tests were not normed under those circumstances, right? So you can get less than chance, and it’d be completely arbitrary and not malingering. So yeah, I mean, that is infuriating, because they’re calling your client a liar, and these tests aren’t valid. 

[27:52] Tom Crosley: Dorothy, what do you do with the defense that the forces in the crash were not sufficient enough to cause the brain injury? 

[27:58] Dorothy Clay Sims: Okay. If that’s done by a biomech or a doctor, they don’t know the position of the patient’s body in space, typically, when the crash occurred. But more importantly, what we do know is that even in low-impact crashes — the research done by Michael Freeman, an epidemiologist, tells us that even in a very low-impact crash, the probability that the neck injury was caused by the crash versus preexisting arthritis is over one million to one in favor of the crash. Because people have preexisting conditions that can clearly be made worse by even a minor crash, and they should not be allowed to get that to the jury. 

[28:40] Tom Crosley: Let’s imagine that we’re talking to a lawyer who does not have a lot of experience in handling TBI cases, and they’re handling a TBI case — let’s call it a mild TBI case. The defense has now designated its experts: perhaps a neurologist, a neuropsychologist, maybe or maybe not a neuroradiologist. What should that lawyer be doing next? 

[29:06] Dorothy Clay Sims: All right, a couple things. First of all, make sure you videotape the exam, and make sure that the videographer does not mount the camera on a tripod, but that they’re visualizing the body part the whole time, so the doctor can’t block it. Then you need someone to look at that. It takes about three hours to go through that video and analyze everything they did wrong. 

Then you want to get the dirt on the experts. So first of all, email me, because I have stuff on 2,000 of them. I’m glad to share it. 

Tom Crosley: Yeah. 

Dorothy Clay Sims: You should also go out on your listserv and say, “Who’s had experience with this person?” and volunteer to share what you get. The third thing I do is I have my staff go on Lexis AI, and they put the expert’s name in, and they get all decisions nationally — because I’ve found expert witnesses are less likely to foul their own backyard, do something crazy in their own state, but they’ll take more chances in a different state. 

I also will write for the state file of the doctor. Those state files are golden. And if someone works at a university, you want to write for the university file. Then you want to combine it all and use AI to tell you — especially if it’s 10,000 pages — how many times were they limited, stricken, what ethical issues are there, what problems with their conclusions, and let AI analyze that for you. Then you want to get the video analyzed. You also want to get the raw data yourself, so you can see if it’s even in your client’s handwriting. 

[30:44] Tom Crosley: All right. I know that you take a lot of depositions. How often are you actually doing the defense witnesses in trial these days? 

[30:53] Dorothy Clay Sims: Not that often, because our goal — and our goal really is — to have the witness refuse to testify or have the defense pull him. Like, I was supposed to do a trial two weeks ago on the defense neuropsych, and after we took his deposition, they pulled him. And that’s my goal. So it’s extremely rare. But if we do a really good deposition, then the cross at trial is very easy. You just stay within the four corners of the deposition and make them admit to all of their misdeeds. 

[31:27] Tom Crosley: My favorite crosses are short, punchy, in and out — like sticking them with a stiletto in the belly. Forty-five minutes, my five strongest points, that kind of thing. How would you structure that kind of cross, say, of a defense neuropsych? 

[31:47] Dorothy Clay Sims: I would do it two ways. One way is, if they really screwed up, you pick the top five things, and you don’t just talk to them verbally — you have a chart, because jurors are not listening. But if they see that chart, even if they can’t read the words, they see check mark, check mark, check mark. And now I’m starting to do the charts in the middle of the deposition and attaching them as an exhibit. 

That chart is a cross-examination: You don’t have a degree in it. You don’t have a license in neuropsychology. You don’t have a doctor-patient relationship. You misrepresented the scores. You don’t want them to give you any concessions, because you’re wasting your time — it makes them look legitimate when you do that. You want to show the jury how bad they are. Just go right for the jugular — unless they don’t answer questions directly. 

And I had a trial where we got an excess verdict, and I thought it was because of my brilliant cross-examination. And when we polled the jury later, they said, “Well, we didn’t understand what that blonde lady was saying, but we knew one thing: that doctor wasn’t answering her.” And I thought, well, shit, that’s all. All you’ve got to do is let them continue to not answer the question. 

Tom Crosley: Right. 

Dorothy Clay Sims: I mean, the reality — and I don’t know if lawyers know this — is that jurors make their decision not on what they hear, but on what they see. And if you played that deposition with the sound off, they would get it much quicker. They’re watching the witness. That’s what’s going to result in a favorable verdict: how they behave. 

[33:16] Tom Crosley: Yeah. I love summary exhibits in cross-exam, because that’s what a jury will remember. 

Dorothy Clay Sims: Exactly. 

[33:24] Tom Crosley: Dorothy, if there were just three things that we lawyers took away from today’s interview that would help us better handle TBI cases, what would they be? 

[33:35] Dorothy Clay Sims: I think number one: do your due diligence on the doctor’s background. Invariably, they have testified to the exact opposite of what they’re saying in your case. You just have to find that deposition. Invariably, they may have gotten in trouble in various states and left, and you need to find that. Do your due diligence on their background. 

And number two: presume everything they’re saying is a lie and make them prove it. When they make a statement, ask them where the science is that supports it. Because the reality is, there isn’t any science that supports their position, but there is one hell of a lot of science that supports yours. And these people, with the right judge and the right set of facts, should not be allowed to testify. So never underestimate the willingness of some of these experts to simply lie. 

And the third thing is: timing is important. Take a long time for your deposition. It’s expensive, but that is what settles these cases. If you do a good enough job, you’ll never have to try the case. But if you do have to try the case, you’ve got your roadmap right there, because you’ve done an in-depth analysis. You’ve taken the time, you know what their opinions are, there will be no surprises, and you’ll be ready. 

[34:56] Tom Crosley: Well, this has been super helpful. I appreciate you taking the time to share with those of us interested in TBI cases your exceptional knowledge that you’ve gained over the last three or four decades of devoting yourself to taking down deceptive defense doctors. 

[35:11] Dorothy Clay Sims: Well, thank you, Tom. It was a pleasure. 

[35:15] Tom Crosley: Thank you for joining us on this episode of Winning the TBI Case with Dorothy Clay Sims, to help us learn how to better expose deceptive defense doctors in TBI cases. I’m Tom Crosley.  

Announcer: If today’s episode helps you see your current case in a new light, share it with a colleague who’s facing the same challenges in a case. Subscribe wherever you get your podcasts, and join our community of trial lawyers who refuse to settle for average results. This has been Winning the TBI Case: strategy, science, and storytelling, with Tom Crosley. 

“GCS is not looking at long-term outcomes. It’s looking at that little slice in time right after the injury happened in the acute phase.” – Tom Crosley

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

What’s In This Episode:

This is for trial lawyers who need to understand why a normal GCS score doesn’t mean their client wasn’t injured. Tom reveals how defense attorneys take one number from acute medical records and use it to undermine entire cases. He explains the historical context of GCS which was created in 1974 as a bedside tool designed for neurosurgeons to assess coma depth and decide on emergency surgery, not to predict long-term outcomes.

GCS measures three basic functions:

All tests that any elementary school student or family dog could pass. Tom provides the analogies and cross-examination techniques to expose how this acute triage tool has zero relevance to how patients function years later in life. By understanding what GCS actually measures (and what it doesn’t), you have the power to educate juries and neutralize one of the defense’s favorite, and often misleading, arguments.

“What I’m looking for is: What is the correct diagnosis? What happened to this patient? Is he or she being treated correctly or properly? And that’s a concern of mine.” – Dr. David Levey

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

Tom is joined by Dr. David Levey, a diagnostic radiologist and forensic neuroradiology expert who evaluates traumatic brain injury cases for both plaintiffs and the defense. Dr. Levey walks through the detailed process radiologists use to evaluate imaging, medical records, symptoms, and clinical history when analyzing TBI cases in both medical and litigation settings.

What’s In This Episode

Dr. Levey pulls back the curtain on the detailed analytical process radiologists use to evaluate brain injury cases in both medical and forensic settings and shares how he works with both plaintiff and defense teams.

This episode is for trial lawyers who want a clearer understanding of how radiologists evaluate traumatic brain injury cases and how imaging evidence fits into litigation strategy. If you’ve ever struggled with “normal imaging” defenses or wanted insight into how to best leverage your radiology experts in TBI cases, then you’ve come to the right place.

Dr. Levey and Tom reference tractography imaging beginning at time code 22:49 which can be seen on the video version of the podcast. Screenshots below for our audio listeners.

Host: Tom Crosley Guest: Dr. David Levey Runtime: 37:08 

[00:00] Dr. David Levey (cold open): Follow-up MRIs can be valuable, particularly in two cases. One, if you have found nothing abnormal on imaging structurally, right? Yet the patient is so abnormal. The family doesn’t recognize them anymore. Work’s not going well. The tasks they used to do, they can’t do them anymore. Well, you know something’s wrong. 

[00:20] Announcer: TBI cases can feel like navigating uncharted territory. Your client’s injury is real, but proving it — that’s where the real challenge begins. If you’ve ever felt like you’re missing crucial pieces of the puzzle, you’re in the right place. Welcome to Winning the TBI Case, where Tom Crosley shares the insights he’s gained from over 60 injury trials. Not just the victories, but the lessons learned along the way that make all the difference. Winning the TBI Case: strategy, science, and storytelling. 

[00:55] Tom Crosley: Welcome back to Winning the TBI Case. I’m Tom Crosley, and today we’re gonna have an exciting episode. We’re gonna be talking about one of the most misunderstood areas in traumatic brain injury litigation, and that is brain imaging. Our guest today is Dr. David Levey, a diagnostic radiologist with a clinical practice reading brains and spines, and he also happens to serve as an expert witness from time to time in legal cases. About half of his work is on the defense side; about half is on the plaintiff side. So he’s one of those expert witnesses who is exactly what we want: science first, advocacy second. Somebody who does both sides and calls the balls and strikes like he sees them. 

I wanted to start with a little bit about you and your background. What led you to go to medical school? How did you pick radiology as your specialty? Kind of bring us current to modern times. 

[01:59] Dr. David Levey: Well, when I was 11, I read a book called The Defense Never Rests, and that was it. I was going to be a lawyer. And in the next few years, that evolved. I went to college, got two different bachelor’s degrees, really heading towards the neurosciences, and a master’s degree at UCLA before medical school. Then after medical school: internship, a trauma internship, four years of radiology at USC, and a fellowship. After 17 years coming out of the machine, I finally got my first job doing just that — neuroradiology, musculoskeletal imaging — here in Texas. That was the first job, and here I am. 

[02:45] Tom Crosley: Tell us about how forensic neuroradiology — for example, in a brain injury case — differs from day-to-day clinical neuroradiology. 

[02:53] Dr. David Levey: It’s extraordinary, the difference. I didn’t know about it until I started this 15 years ago. If you’re reading an MRI of the brain as a radiologist, you get the case; the case comes up. You get some clinical data. You may get some clinical information faxed to you. Some of it’s sketchy, some of it’s from the patient. You may get some nursing notes, from the PA or the doctor, but it’s variable. If you get 10 pages of notes, you’re really doing great. If you get a page or two, that’s acceptable too. Many of the diagnoses are fairly complete, and others may have “headache” or “head pain” or “trauma” — no date, no description, no time. You don’t have any idea. 

So you are absolutely starting from the beginning and working your way through the brain MRI and trying to get that diagnosis. So you’re looking for everything under the sun. You can’t focus on trauma or anything. And that takes you X amount of time. You know, a brain MRI may take two minutes or two hours. I’ve had one take two days — spent two days on it, getting through it, it was so complicated. But it’s a finite experience. 

But forensic radiology — you get reams of medical records and a number of opinions from everywhere. From the police report at the scene of the accident, all the way through the ER and the ICU and the consultants and surgery or not. Then the patient finally is released from the hospital and has all these follow-up appointments with many other experienced, seasoned experts: pain people, clinical psychology people, PM&R, et cetera. And the vast amount of information I can use to put a story together is what I think attracted me at first to this field. All the imaging available plus all the medical records together allows me to tell a story — not only with the radiology and the imaging, but the medical process and the path the patient took as well. 

[04:57] Tom Crosley: Some radiologists that serve as expert witnesses don’t like to look at medical records. They just want to look at the imaging and dictate a report based on what they see. But it sounds like you like to look at the whole picture, including medical records. Why is that? 

[05:10] Dr. David Levey: I think it’s important. I do like it, you’re right. But I also think it’s important. I think you’re missing something if you’re not doing that, because, first of all, from the correct diagnosis flows the correct treatment. I want to get involved with any patient — it doesn’t matter, defense, plaintiff, or whatever the situation is. What I’m looking for is: What is the correct diagnosis? What happened to this patient? And is he or she being treated correctly or properly? And that’s a concern of mine. 

Because I see that if the radiologist who read the primary studies got it wrong, the whole crowd — medical, surgical, everybody — they’re following down the wrong pathway. And that’s the classic GIGO I see all the time: garbage in, garbage out. You get the wrong diagnosis, and there’s surgery in the wrong place, or no surgery where he needs it, or treatment that is inappropriate because the diagnosis was not made correctly in the beginning. So medical records really help with that. You hardly ever get that when you just get a case, read it, get a case, read it, like in a radiology practice. 

[06:15] Tom Crosley: It sounded like your explanation of the difference between clinical radiology and forensic radiology was that sometimes, clinically, you might only spend a few minutes reading a brain scan, but if it’s forensic — meaning it’s going to be used in a court case — then you’re going to spend probably a lot more time. Is that what I’m hearing? 

[06:35] Dr. David Levey: I do, and I see them over and over again, because it may take weeks to get the consultative report out. But then if you have a deposition, or are called upon in this case for any other reason, it takes weeks, maybe months, that you’re going over and over these things. I currently have a case that’s in its sixth year. 

[06:55] Tom Crosley: Let’s take a step back, Dr. Levey, and have you tell us what radiologists typically do in evaluating brain injury. And I’m not talking about experts; I’m talking about clinical radiologists. What’s their role? 

[07:07] Dr. David Levey: You get the scan — you pull it up on your reading station. You have a dictaphone, one you might use such as this one; if you’re on YouTube, you can see my dictaphone. We live and die by it. And you evaluate the case as you go through hundreds of images. 

Now, they’re set up in a reading situation where they’re called sequences, and you’ll do different sequences that weight the brain tissue in different ways. And so you can look at them, if you would, from different angles. If you’re doing a CT scan, it’s very simple. Usually it’s axial images. It’s an X-ray study, and it’s black and white. You kind of zip right through the head axially. But now we can reconstruct these in other planes and see a lot more than we used to. So CT is valuable in the acute setting especially. 

But then MRI can have hundreds, and in some cases thousands, of images, and we’re no longer looking at pixels. This is one big thing that has changed. It was pixel imaging for decades in radiology. Like X and Y, a box. And these boxes had images, and these images allowed you to look at the brain. But today we’re looking at voxels — a volume pixel. So you have an X, a Y, and a Z: a width, a height, and a depth in these studies. So now we have contiguous imaging, and we don’t miss a thing. We’re right on top and overlapping as you come through the brain parenchyma itself. 

And in doing so, you get the base of the brain, you get the orbits, you get the sinuses, the inner ear, the cerebellum, the supratentorial compartment. It’s a fallacy that you’re just looking at the brain only. You look at everything that’s in the field of view. You’re responsible for that. As a diagnostic radiologist, to answer your question, you get that study, you bang through those images, you make your report, you make sure you don’t miss anything, and you’re on to the next one. 

[09:10] Tom Crosley: In a clinical setting, what is the typical amount of time that a radiologist will look at a brain scan? 

Dr. David Levey: It’s minutes. It’s not hours, that’s for sure. 

Tom Crosley: And if it’s minutes in a clinical setting — because of the volume of the practice and the fact that they’ve got to read 50 or 60 or more scans a day — what is the amount of time that you typically spend reading that same MRI scan if it’s a litigation case and you’ve been retained as an expert for the defense or the plaintiff? 

[09:37] Dr. David Levey: First off, it has to be a little longer, because I have someone else’s report and I have the images. So I’m going to go through the images, and I’m going to be looking to see what the primary radiologist — I call them the primary radiologist; you can call it the treating radiologist — what they said about the study and what they didn’t. Whatever’s on the image, you must report. We are not of a standing where we can pick and choose. If it’s an abnormality or a finding and it’s on the scan, you need to report it. And I see a lot of things being left out or misinterpreted. 

So my first way through is to see what the radiologist said. The next one is to compare it to any of the other prior examinations. And this is very special in my practice: I have a bird’s-eye view into all the other prior scans that many times the radiologists do not. I amass them, right? We download them; we get everything ready. Whereas that radiologist may have one study — reads that study, and he’s on to the next one. He doesn’t have the advantage of having prior studies. And it is so, so nice. So I have an unfair advantage, and now I can see multiple years, sometimes, of brain scans and then see the current one. That’s important. 

So yes, it takes longer, because there’s more material there, and I’m kind of doing my due diligence and a little bit of detective work as well to make sure that all the details have been seen. 

[11:01] Tom Crosley: Dr. Levey, in my litigation practice over the last few decades, I’ve had cases — certainly very commonly — where there’s a CT scan done in the ER. Very commonly, it’s read as normal unless there was a fracture or bleeding. Does a normal CT scan rule out a brain injury? 

Dr. David Levey: It does not. 

Tom Crosley: And is that something that every radiologist in the country should agree upon, or is that up for debate? 

[11:24] Dr. David Levey: I think it’s really not up for debate. And it doesn’t matter what side you’re on, or even what specialty you are. I mean, if you look at a brain CT and you don’t see an abnormality, you know that there can be something there. And so many of the ones that are read as “no acute process” — you see these, “no specific abnormality” — those are all true statements, but that doesn’t mean there isn’t something present that’s not available to be visualized on the CT scan. 

[11:56] Tom Crosley: When a patient comes in with a suspected head injury and a CT is run on them in the ER, is the main thing they’re looking for fracture or bleeding? 

[12:06] Dr. David Levey: Those are the two main things they’re looking for as well. You can also have post-traumatic stroke. You can have edema in the brain — so no blood at all, but a real good contusion can give you edema, and that edema should show up quite rapidly and be seen on a CT. But you’re right: fractures and blood are the number one and number two things, because they’re seen so well. They’re radiodense, and they’re gonna be seen as white on your image. 

[12:36] Tom Crosley: What I typically see with MRIs is, if a patient is still symptomatic and weeks have passed by, then an MRI scan is ordered. And often in our mild cases, that one will come back as normal. But is that also just a structural test? It’s looking at the structure of the brain and not the function of the brain? 

[12:55] Dr. David Levey: It certainly does look at the structure, but the one thing that it has over CT, or much of the other neuro testing you can do, is that we have structural resolution and contrast resolution. Those are the two big things. MRI can look at the contrast between bone and fluid, fluid and fat, cortex and white matter, white matter and ventricles — all the different things. Vessels: flow and no flow. 

It’s structural for sure, but it isn’t as good as CT. It will never be as clear as a CT in terms of anatomical, but it’s okay, because it has gotten so good now. But it also has contrast resolution, which is the most valuable thing that an MRI can provide. And because that relates to blood flow as well — tissue viability, or the absence of viable tissue, and tissues that can be injured; blood that’s old, subacute, or acute — all those things can be seen on the MRI. So it’s just a more versatile test than the CT scan. 

[13:55] Tom Crosley: In a plaintiff case, if you are retained early enough to where you can make suggestions about what type of imaging plaintiffs should receive, what suggestions do you typically make? 

[14:04] Dr. David Levey: If it’s a trauma case, I typically do not need contrast — that’s IV contrast material injected at the time of the examination. So: a non-contrast 3T MRI of the brain. And I have a specific protocol that covers all kinds of disease processes — both the ones we’re looking for that are trauma-related and totally non-trauma-related — because you have to examine the patient’s brain in totality. You get surprised sometimes by what may pop up. 

Would I add a DTI to that? Well, you can’t lose in doing that. And what I mean by that is, the patient’s in the magnet, they’re on the scanner, the tech is doing the study, they’re almost done. All they have to add is three or four more sequences. So if the patient can lie still for another 10 to 20 minutes, depending, and you can acquire this data, then I would say do that as well. 

And I would say to do that because, thus far in my practice, I never stop with a DTI — get that study, look at it, report it out, and go. I always take the raw images and send them off to be evaluated for quantitative evaluation. You get this one-two punch, and now you have a ton of data on one brain, on one person. And you may or may not need it, but you certainly have it at your disposal to evaluate. 

[15:24] Tom Crosley: And is there a separate sequence that’s run for susceptibility-weighted imaging, or SWI? 

[15:29] Dr. David Levey: If we’re saying we’re going to do a DTI, then I’d need to be more specific. I’d package it like this: I want a 3T MRI of the brain, non-contrast, with all the typical protocols utilized, and also those that look for trauma-related things, like an SWI or a GRE. I want the planes that I need, and I also add a number of sequences on the back end for DTI. That in and of itself would be one study that could be very useful, because you could then ship the DTI and brain examination off for quantitative study. So what I like to say is what we’ve done here: we’ve done a 3T non-contrast brain, and we’ve done qualitative evaluation of the brain imaging, and quantitative. 

[16:23] Tom Crosley: Is it difficult to get patients access to 3T scanners for brain scans? 

[16:27] Dr. David Levey: In North America, not really. In a normal setting, a physician is sending a patient for a study, and he wants the very best type of MRI, he should be sent to an MRI center. We’ve already called them and said, “Hey, you guys have a 3T scanner? Will you always have that available? Oh, you haven’t gotten it yet. I see you’re planning. Thank you.” Click. Go to the next guy. 

[16:49] Tom Crosley: So I’ve heard of a 7T scanner as well. When is it appropriate to insist upon a 7T machine? 

[16:57] Dr. David Levey: Never, unless you’re doing research on animals. We do not yet know that there is a clinically significant difference in image quality or acquisition on a 3T versus a 7T. 

[17:08] Tom Crosley: So if it were your family member who had suffered head trauma and needed an MRI, you’d be recommending a 3T machine for the brain MRI? 

[17:17] Dr. David Levey: Yes. But if I knew the 1.5 Tesla, and I knew the tech was good and it was a well-kept, good magnet, it would be just as well to get a 1.5. 

[17:28] Tom Crosley: So, Doctor, I had a question about when is the best time to get an MRI. And over the life of a case, which can sometimes go two to three years or even longer, how frequently should the plaintiff be imaged to look for changes over time? 

[17:42] Dr. David Levey: If the patient in question has had a trauma, and they’ve gone to the ER and gotten their head CT. If they’re stable, there is nothing holding one back in the first week from getting an MRI, because if the head CT is read as normal, the MRI could still be flagrantly abnormal. And you’d want to know that, because then you could track it over time as you reexamine them over the months or years. 

If the head CT is read as abnormal, you could further characterize those abnormalities on MRI so much better than on a CT scan. And getting that detail also allows you not only to tell what’s wrong with the patient now, but, importantly, to prognosticate what may be expected in the future to happen to that brain — and therefore what happens to that person and their ability to think, executive functions and the like, memory, emotions, et cetera. So getting an MRI soon or early in the case — I think a lot of lawyers wring their hands over that. I wouldn’t. I would just go ahead and get it if it’s possible. 

[18:50] Tom Crosley: And is it appropriate to order a repeat scan at some point? 

[18:53] Dr. David Levey: At some point, I think so. Follow-up MRIs can be valuable, particularly in two cases. One, if you have found nothing abnormal on imaging structurally, right? Yet the patient is so abnormal. The family doesn’t recognize them anymore. Work is not going well. Tasks they used to do, they can’t do them anymore. Well, you know something’s wrong. You’ve had normal brain scans; you definitely want a follow-up MRI, and at high field strength at that. 

But if you had a prior scan and it’s abnormal — same thing. You want to track that abnormality, because — and this is the most valuable part — once you have established that the brain has been injured (and so many different injuries can occur), then you want to know what the secondary and tertiary effects on the brain are. After the brain bleeds, or has been injured, or has had edema or infarct, it usually walks through a progression — not linear, a nonlinear progression — to either encephalomalacia, or gliosis, or brain atrophy, and any apoptosis of the actual neurons themselves, giving you groups of dead neuronal tissue that will never come back. That’s all part of the process of figuring out how will this patient do in the future. 

[20:10] Tom Crosley: I tried a case last year in another state, and the client was still symptomatic. In fact, her symptoms never went away, and it was classic post-concussion syndrome. And one of the important things to the jury in the case was that we had a volumetric study done early, and then about eight or nine months later another volumetric study, and it showed a loss of brain volume in the interim. And that seemed important, certainly, to the doctors in the case, and important in my proof of the case. So my question is: is there an optimal time to do repeat volume studies to look for that type of thing? 

[20:53] Dr. David Levey: The literature is all over the place, and there is not an optimal time. But what you’re describing is central to these cases. I would think if you have a T-equals-zero injury in a scan, you need to wait at least six months to get another examination. It’s going to be more valuable the longer you wait, as a general rule. That’s not a hard rule at all — nothing hard and fast. But if it’s at nine months or a year, a year and a half, you’ll really see the effects of the atrophy, if you have it. 

[21:24] Tom Crosley: Can you teach us a bit about what is a volumetric study of the brain , and how that is important in litigating a TBI case? 

[21:31] Dr. David Levey: An MRI is performed. A neurophysiology lab typically will be able to take those images and feed them into a computer that loks at and measures volumes. They measure volumes of lobes and of sub-lobe regions, and they sub-segment each lobe. They may even take the cerebellum. In my volumetric studies, there’s the lower brain, the cerebellum, and the upper brain, the cerebrum, right? And in my cerebellar sub-segmentation, there are 12 different areas of the cerebellum. Each are looked at for what volume they are and what the normal population volume should be. You also look at what volume segment seven is on the right compared to segment seven on the left and compare them side to side. So you have an internal standard, and then you also have pooled data on what normal should be expected to be. 

And so it’s calculated informational data that’s extracted from raw MRI images through computer programs that allow you to calculate those volumes in various areas of the brain. 

[22:41] Tom Crosley: Doctor, when you’re examining DTI, what is most persuasive for showing traumatic changes to the brain? 

[22:48] Dr. David Levey: Certainly, you must take the whole picture into account, but it is valuable to see if you can identify what should be a normal fiber tract appearance — or if there are less of them, if they’re thinned or attenuated, if they’re blunted or thickened, if they’re shortened, or just simply transected. They should be continuous, but if they’re transected, now they’re in two pieces or multiple pieces. 

[23:13] Tom Crosley: Doctor, on the screen now you are showing a tractography of a human brain. What is significant about tractography in traumatic brain injury cases? What are you looking for? 

[23:27] Dr. David Levey: To put it in a layman’s way of describing it: every time you look at an MRI and you look at the images, they’re slices, or they’re an image — they’re a part of the brain. And that’s a 2D representation of a three-dimensional thing. Your head is three-dimensional; so is your brain. Tractography at least attempts to get a 3D image of the brain, and you’re able to roll and spin these images so that you can take a look at one side or the other side and do your comparison. 

So I will turn this one on. And if you see it rotating here — for those that cannot see it — basically you have, from front to back, color-coded red, green, and blue, these different directional evaluations of the tracts that are there and the tracts that are missing. And if there’s injury or absence — the injuries to the brain — you put it together, of course, with your standard MRI, your DTI, your quantitative studies, and then something like this. Tractography is yet another way of looking at the brain and evaluating for the presence of disease. 

[24:36] Tom Crosley: So you’re looking for missing bundles of fiber tracts, from which you can conclude that there’s damage to that area? 

[24:43] Dr. David Levey: Yes. If the fiber tracts are shortened or thickened or attenuated, if they’re splayed or absent — anything that takes away from the typical configuration of the brain and the fiber tracts and the actual neuron fibers themselves — that’s a great way to identify whether a brain has been injured. 

[25:03] Tom Crosley: Sometimes in my cases, there will be a defense-retained radiologist who says that whatever is visible on the imaging isn’t related to traumatic brain injury. Sometimes they’ll call it preexisting white matter disease, or small vessel ischemic changes, or age-related findings instead of trauma-related findings. Can you teach us a little bit about how radiologists figure out whether it’s trauma or something else? 

[25:32] Dr. David Levey: Pattern recognition. And those who are trained and pay attention and spend their lives doing this should know when you have chronic white matter ischemic changes — and only that, that alone — and you have a patient in their 50s, 60s, 70s, 80s, and perhaps they’re a smoker, or have had chronic migraines for 50 years, or have diabetes or some other intercurrent disease, that that pattern should be a microvascular disease, and it’s okay. It’s okay to call it that. 

And they could have the worst trauma, and all the stories and hospitalizations and such. If you don’t see trauma or evidence thereof, you can’t call it. And so if a defense guy gets a set of brain MRIs or CT scans, and they know the patient had trauma and they’re evaluating it, and they only see microvascular disease, it’s incumbent upon them to just call it that. 

[26:27] Tom Crosley: How do you approach causation analysis as a radiologist, to help us identify whether something was or was not caused by trauma to the brain? 

[26:37] Dr. David Levey: I’m certainly not shy, and I’m happy to do it when it’s there. When the elements for being able to connect the dots for causation are there, I am very upfront with that analysis. But it’s infinitely easier on a defense case than it is on a plaintiff case, okay? Because when something’s not there, that’s the easy part. 

You can talk about how the patient had trauma, had this, had that. And I’m looking at multiple studies — two or three CTs, multiple MRI examinations, maybe a DTI exam, et cetera. If the data points to the fact that there is nothing there that is trauma-related, I can say the patient may have had a terrible trauma, and there may be pain, disability, connective tissue injury, even long-term effects. But if there is no fracture, then that bone’s intact. If there is no blood, if there’s no brain abnormality — it’s a frankly normal study — then there’s nothing to correlate. And so there’s no causation. 

[27:31] Tom Crosley: So what are the types of things that you’re most often called upon, say in a trial, to testify to on behalf of the defense? 

[27:38] Dr. David Levey: In a nutshell, it’s the absence of disease. The claims are one thing — what the radiologist said on whatever study, that this is present, and the surgeon or other doctors may be quoting the radiologist and carrying that patient for months, and even treating them in such ways, even with surgery. But if the images show the absence of disease, it’s the thing I can state. It’s the thing I can lay out there for all to see — judge, jury, it doesn’t matter. And then if I need to demonstrate — “Well, let’s see that scan” — I can show that scan and show the absence of disease. It really is quite simple. 

[28:20] Tom Crosley: So, Doctor, I find it difficult to cross-examine a radiologist, because I can’t really tell them that the pictures don’t show what they say they show. I can’t get in that debate with them; I’m not really qualified to do that. So what have you seen be effective in cross-examining a radiologist? I mean, clearly we can talk about how much money they’ve been paid, or whether they’re biased, or whether they only report for the plaintiff or only report for the defense. Those things clearly work. But if we get into the merits of the radiology, what else can we lawyers be doing? 

[28:55] Dr. David Levey: This is what I don’t see, and I think it would be really helpful for an attorney, would be to consult your favorite radiologist first, before you get up there. I do believe — and you can tell me if it’s true — that plaintiff or defense, you guys practice, you get ready for trial, and there’s a lot of preparation. And in preparation, if I was an attorney and didn’t know radiology, I would have a radiologist in my ear. I’d be pointing out stuff, and at least I’d be able to be conversant. And I’d know which questions to ask. 

And I know that I couldn’t compete with him in the weeds. Fine. But I would know already that if he’s going to point to this area, or he’s already said it’s just chronic microvascular disease, then — if my radiologist thought there was an area that was different or didn’t exactly look like microvascular disease — I would have that up. I’d have it circled. “Well, how about that, doctor? Do you think that looks like microvascular disease? How about this one?” And I personally don’t know if you can quote radiologists or have them come on — if you can bring your own radiologist on, right, and cross-examine him on what the other person has said. That would be valuable. 

[30:07] Tom Crosley: Sometimes they like to say, “Oh, I didn’t consider the DTI, because that’s not validated in a single-person study. It’s more for research,” or whatever. “So I didn’t look at it.” So I’ll cross-examine them on, you know, FDA approvals and the other uses, et cetera. But it’s very difficult to tell them that you see something different on a scan than what they see, because I can’t credibly argue on that level. 

[30:33] Dr. David Levey: Twelve Daubert challenges I’ve had with DTI — they’re zero for 12. I would say that over 90% of the ones that even get taken to task, where they try to limit you and all, they really haven’t been very successful in doing that. And that’s because there’s too much data showing that for the last 30 years this has been used on patients. And the truth is, it was used on patients early for stroke and tumor and seizure — a lot of other disease processes. But we do advance on. We do look at things, and there’s a massive amount of information now to use this for trauma. And I’ve done it long enough, and spent enough time digging through the literature, to see that it’s valid. And you could show it — it would be tough for a jury to sit through going through research paper after research paper to show that. But again, if you’re prepared, you can do the short version, hopefully. 

[31:31] Tom Crosley: Doctor, where do you think the science of radiology is headed, specifically in brain radiology? 

[31:40] Dr. David Levey: So everyone likes to talk about AI, and AI is great — actually great for hospital radiology, where you’re plowing through tons of studies. Some of the best uses of AI currently are in cardiovascular radiology — without going into too much detail, looking at the coronary arteries in a way that they’ve never been looked at before. And it turns out all of those vessels that are in the heart are in the brain as well. So the vascular function, or the lack thereof, in the brain can now be — and it’s starting to be — looked at. So I think AI of the vascular system may be the first newest technique for the brain. 

And past that, I think there are going to be perfusion elements. We use gadolinium as our enhancement now, and I think there are other perfusion elements that are going to allow for looking at different sub-segmental areas of the brain and looking for lesser or greater function. Wouldn’t it be valuable? Wouldn’t it be something, if you could give an injection to a patient and do a brain MRI and see what areas are functioning to a lesser or greater extent, or which are dysfunctioning, or abnormal firing of neurons, et cetera — without having to get a PET scan? Because with the PET scan, you get the radiation, and the spatial resolution of the associated structures will never be as good as MRI. So I’m thinking injectables, and AI using the vascular technique to look at vascular brain anatomy, might be some of the inroads coming up. 

[33:03] Tom Crosley: We’ve talked a lot lately at conferences about blood biomarkers. Is there any intersection between blood biomarkers and radiology and brain imaging? 

[33:12] Dr. David Levey: I think, like any other blood test or any other test that can dovetail with radiology, it can certainly be valuable. I know that I’m looking into those biomarkers now, because of their value — possible value — in trauma, in acute trauma, and the effects of chronic trauma. But I don’t think they’ll help the radiology per se. We’ll still be doing the job that we do every day. But if we know we have a confirmatory test, that’s always valuable. 

[33:43] Tom Crosley: What is one piece of advice you would give to plaintiff lawyers, or that you wish they understood about radiologists in brain injury cases? 

[33:54] Dr. David Levey: I think that plaintiff lawyers are subject — and this should not surprise anyone — to bias. And I think it’s their own personal bias, because they want this case to go well, and they want things to go well for their client. I mean, you are working for your clients and their families and for their legacy. I get that. The one piece of advice is: if you can get someone who likes to work with you, do that. The more interaction you have with your experts — sitting down, conversing with them — probably the better. Because you can get creative sometimes, in a positive way, in an honest way. And it makes the case better and more robust. 

[34:37] Tom Crosley: When you’re hired by the defense, what is the one thing you wish defense lawyers understood better about radiology? 

[34:43] Dr. David Levey: If the case is positive — as badly as you want this to be not an injury, not a brain injury or a body injury — if I’m seeing evidence of injury and it looks acute, you’re done. And so really I help my defense guys two ways. One is by doing their case when they’re right. The other is telling them early, “Hey, get out. Settle this, because you’re wrong.” You could find some other person to say another thing; that would be a bad thing to do. The patient’s been injured. How you’re going to go about settling it, that’s up to you. 

And I will point everything out to them. I won’t just say, “Hey, you’ve got a bad case.” I’ll take them through everything — fractures, cord injuries, brain injuries, whatever it is — to let them know the extent of what’s going on. But I think it’s incumbent upon me to get in early and let them know early to get out. You know, this case is not valuable to defend. And it’s really the insurance company’s duty to settle and take care of the patient that’s been injured — doing the right thing. 

[35:41] Tom Crosley: Well, Dr. Levey, thank you for your time today. I’ve really enjoyed our interview, and I feel like I’ve learned a lot from this. If any of our listeners wanted to get in touch with you, what is the best way to do that? 

[35:52] Dr. David Levey: They can always email me. That’s always a very easy way to do it: [email protected]. In addition, I do have a website, www.expertradiologist.org. There’s a lot of information there as well. There’s a page on DTI. 

[36:07] Tom Crosley: Thank you, Dr. Levey, for sharing your expertise on radiology with us. It’s fascinating to me, in a brain injury case, all the various modalities that are available to scan the brain — to look at the brain, to look at function, to look at structure. And the science has just changed so much over the 20 years that I’ve been doing these kinds of cases. And I’m always excited to learn from you on this fascinating subject. So thank you for joining Winning the TBI Case. I’m your host, Tom Crosley.  

Announcer: If today’s episode helps you see your current case in a new light, share it with a colleague who’s facing the same challenges in a case. Subscribe wherever you get your podcasts, and join our community of trial lawyers who refuse to settle for average results. This has been Winning the TBI Case: strategy, science, and storytelling, with Tom Crosley.

“ The TBI alters the organic chemistry, the physical structure of the brain to the point where our personalities then get altered. Our spirit knows who we are. But you can’t get that person back… and I think jurors get that.” – Scott Blair

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

What’s In This Episode:

In this episode, Tom is joined by Scott Blair, founder of Brain Injury Law of Seattle, to break down the strategy behind a recent $8.1 million traumatic brain injury verdict. Scott shares how he approaches complex cases, from digging deep into the medicine to building objective evidence that makes it difficult for the defense to deny brain injury.

This conversation goes beyond theory. Scott walks through the real decisions that shaped the case, including expert selection, advanced neuroimaging, trial strategy, and how to handle common defense tactics in high-functioning TBI clients.

This episode is for trial lawyers who want to take their TBI cases to the next level. If you’re handling complex or high-value cases, Scott Blair’s approach offers a practical roadmap for building stronger evidence, overcoming defense strategies, and presenting a compelling case at trial.

“The better you understand the definitions of mild TBI, the better equipped you are to read the records, evaluate the experts, and keep your case grounded in sound medicine.” – Tom Crosley

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

What’s In This Episode:
In this episode, Tom Crosley explains how mild traumatic brain injury is defined using both the ACRM 1993 and updated 2023 frameworks. He breaks down the three primary pathways to diagnosing TBI and how those definitions show up in real cases. And finally, Tom provides the simplified jury presentation that keeps the focus on symptoms, causation, and long-term impact.

This is for trial lawyers who want a clearer, more practical understanding of how mild TBI is defined and how those definitions are used in real cases. Tom Crosley breaks down the definitions that form the backbone of every brain injury case. He explains the evolution from the 1993 American Congress of Rehabilitation Medicine (ACRM) definition to the comprehensive 2023 update that created three distinct pathways to diagnosis:

If you’ve ever found yourself caught in a word play battle with the defense over terminology instead of focusing on the injury itself, this episode will help you reframe your approach.

“Every test you take today is going to tap into how a different part of your brain is working. Some tests will have more emphasis on different lobes of your brain than others. We’re going to be evaluating your memory, your attention, and your concentration ability.” – Dr. Janyna Mercado

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

What’s In This Episode
This episode is essential for TBI attorneys who want to move beyond basic neuropsychology knowledge into advanced tactics. Learn the strategic timing for neuropsychological evaluations, how to interpret validity measures, and why transparency about test limitations strengthens rather than weakens your expert testimony. Dr. Mercado shares insider tips that can transform your approach in the courtroom.

In the second part of this two-part series, Tom Crosley continues his conversation with Dr. Janyna Mercado to reveal strategies for neuropsychological evidence in TBI cases. Dr. Mercado demystifies the evaluation process and explains the critical timing decisions that can make or break your case. This conversation provides expert witness insights to maximize neuropsychological evidence and avoid the common mistakes that undermine TBI cases.

Dr. Mercado’s practical insights reveal why successful neuropsychological evidence requires understanding both the science and the strategy behind telling compelling stories to juries and judges.

“Individuals will walk into a courtroom or walk into our offices and they look like you and I. They don’t look like brain injury victims.” – Dr. Janyna Mercado

Welcome to Winning The TBI Case, hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

In the first of a two-part series, Tom is joined by Dr. Janyna Mercado, a clinical neuropsychologist who evaluates and testifies in traumatic brain injury (TBI) cases for both plaintiff and defense cases.

Dr. Mercado defines what neuropsychology is and how it differs from neurology and general psychology. She explains how neuropsychological testing measures cognition, memory, processing speed, and overall brain function. These neuropsychological evaluations often play a critical role in traumatic brain injury litigation. As a neuropsychologist, her role is to translate those complex findings into clear explanations for attorneys, judges, and juries. This helps them better understand what may be happening inside the brain, even when brain imaging appears normal.

In this episode, Tom Crosley sits down with neuropsychologist, Dr. Janyna Mercado to explain the role that neuropsychology plays in traumatic brain injury litigation. They discuss how neuropsychological testing evaluates the “working brain,” why mild TBI cases are often misunderstood, and how expert testimony can help juries understand invisible injuries. This first installment lays the foundation for understanding how neuropsychological evidence can strengthen TBI cases at trial.

This conversation provides foundational insight for trial lawyers handling TBI cases. If you’ve ever struggled to explain a mild TBI to a jury or wondered when and how to involve a neuropsychologist, this episode is for you.

In the second part of this conversation, Tom Crosley and Dr. Janyna Mercado dive deeper into neuropsychological evaluations, including how testing works, how experts analyze results, and trial strategies attorneys can use based on those results.

“DTI helps turn the invisible injury into something you can see and quantify, and more importantly, something your jury can see. ” – Tom Crosley

Welcome to Winning The TBI Case hosted by trial lawyer Tom Crosley. Listen as Tom provides practical, powerful guidance for litigating traumatic brain injury cases. This podcast is meant for litigation attorneys who are ready to explore the essentials of TBI cases to confidently represent clients who have suffered traumatic brain injuries.

What happens when your traumatic brain injury client has normal CT scans and normal MRI results, but clearly isn’t the same person they were before the accident? In this essential episode, Tom Crosley dissects how Diffusion Tensor Imaging (DTI) is revolutionizing mild TBI litigation by making invisible brain injuries visible to juries. Tom walks through why this advanced neuroimaging technique is a powerful tool used to detect microscopic brain damage that standard imaging misses. He breaks down the complex science of how this technology is transforming “impossible to prove” concussion cases into compelling evidence of traumatic axonal injury.

Whether you’re new to DTI or looking to refine your approach, Tom’s insights make this episode essential listening for any attorney handling mild TBI cases.

Mentioned: Episode featuring ACRM Traumatic Brain Injury (TBI) definitions: Introduction of Winning The TBI Case: Strategy, Science, and Storytelling

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