“I said, this is really interesting stuff. It’s not just broken bones or a sprain of a neck. This is something really, really fundamentally interesting, and it would require a lot of hard work, which I was prepared to do as a young lawyer.” – Stewart Casper
Welcome to Winning The TBI Case hosted by trial lawyer Tom Crosley. Listen each week 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.
Mastering the Science
Stewart Casper has spent over 40 years becoming one of the most respected names in traumatic brain injury litigation. His reputation isn’t built on victories alone, it’s built on an unparalleled commitment to mastering the evolving science of brain injury. For two decades, Stewart has systematically read, curated, and indexed every significant piece of TBI research, creating a resource he generously shares with trial lawyers nationwide.
In this episode, Tom sits down with Stewart to explore the insights that have shaped his legendary career. We start with where it all began when Stewart attended a brain injury conference in 1980 where he heard the term “diffuse axonal injury” for the first time. We then fast-forward to 2014 when he discovered neurometabolic cascade research that fundamentally changed how TBI litigators counter defense experts. Stewart’s career, spanning from that first brain injury conference to today’s cutting edge science, reveals what it takes to truly master TBI science in this ever-evolving and complex field.
Key Takeaways
- Stewart’s systematic process for staying current with medical literature and creating a searchable database
- What the “citation cartel” is and how defense neuropsychologists manipulate perceived credibility
- Tactical advice on MMPI misuse by defense experts and how to demand raw data exchanges
- Why blood biomarkers and objective neuroimaging represent the future of TBI litigation
- Advice for lawyers interested in TBI litigation
Mastering TBI Science with Stewart Casper
Narrator: Stewart Casper has been a plaintiff’s lawyer for more than 40 years. He is nationally known for his handling of traumatic brain injury cases and has earned a reputation for unparalleled devotion to staying current with the scientific literature.
For over two decades, Stewart has systematically read, curated, and indexed every significant piece of TBI research, creating an invaluable resource he generously shares with trial lawyers nationwide.
In this episode, Stewart’s insights showcase why he is considered a living legend in TBI litigation and his practical wisdom to help any lawyer elevate their practice.
Tom Crosley: Welcome back to winning the TBI case. I’m your host, Tom Crosley. Today we are blessed to be joined by Connecticut trial lawyer and Living legend Stewart Casper. How are you, Stewart?
Stewart Casper: That’s quite an introduction. I am fine, Tom. Thank you for that.
Tom Crosley: You know, I have often said, Stewart, maybe you’ve heard me say it, but if the AAJ TBI Group had a physical library—like a brick and mortar building—your name be on the side of it.
Stewart Casper: Well, thank you. But, um, I’m a little compulsive about it, as you know.
Tom Crosley: All right, and we’re gonna get into that. And what we are referring to, folks listening, is that Stewart is the industry leader in the TBI litigation field for staying on track with the medical literature, staying on track with the science, reading the latest articles, discussing them for the rest of us, helping the rest of us understand what they mean and how to use them in our cases.
And so we’re gonna cover some of that in today’s podcast. But first, Stewart, I’d like to talk about you, your, uh, tell us your path to becoming a TBI lawyer. What got you started in this process in the first place?
Stewart Casper: That’s an interesting question. The backstory is interesting. I was a very young lawyer. I was, um, perhaps in my first or second year of practicing law, and I attended, I think was my first then ATLA education program put on by the Traumatic Brain Injury litigation group. Or it wasn’t a group at that point. It may not have been. It was, the educational program was on traumatic brain injury. It was a two-day program in Boston.
I remember as a young lawyer thinking, “Well, why don’t I go to that?” And it was really, really stimulating. It was, um, I think the first time I had heard the term “diffuse axonal injury,” And it was, at that time I heard about MRI, except it was in the early stage of MRI. So I’m talking 1979, 1980. So, and the acronym at the time was NMR and the myth was—could have been myth, it could have been true—that the radiologists didn’t want the acronym to turn into “No More Radiologists.” And at the time it was far from true, but maybe today with artificial intelligence, we’re getting closer to that point. That’s, it’s interesting.
So the bottom line was, I said, “This is really interesting stuff.” It’s not just broken bones or a sprain of a neck. This is something really, really fundamentally interesting. And that it would require a lot of hard work, which I was prepared to do as a young lawyer. If you look—at the time I was looking to create a niche for myself, and that was the niche. And you know, I would have been successful at doing that. I’m grateful for that experience and grateful for the path.
Narrator: That early exposure to cutting edge brain injury science shaped Stewart’s entire career. While other doctors were content to rely on treating doctors and basic medical knowledge, Stewart made a different choice. He decided to become a true student of the science.
That commitment would pay off decades later when he discovered research that would change how we all litigate TBI cases.
Stewart Casper: And it was around 2014, I came across an article that was published in Continuum. Continuum is the educational arm of the American Academy of Neurology. And that Continuum article talked about the neurometabolic cascade, really dividing it. And it was an article that was designed to be about diagnosing and treating sports concussion. You know, a concussion is a concussion. Some are more violent than others, but there isn’t a separate, um, there isn’t a separate pathophysiology for getting hit on the football field and have it being concussed and a separate pathophysiology for, getting a concussion in a wreck.
And so, I was just sort of amazed that I came across this article and I think it was 2014. And it turns out it wasn’t the first one that I had missed. A couple of earlier papers that Dr. Christopher Giza from UCLA was a co-author of, and I’m reading that article and the lights and sirens are going off. I said this concept of the neurometabolic cascade really addresses that issue of why the immediate aftermath of a concussion is not the most consequential time for a concussion; that it can occur days, weeks, and months later because the whole concept of the neurometabolic cascade has to do with the secondary pathophysiologic effects of the brain injury. The things like the flooding of the glutamate and the electrical changes in the brain. And as the imbalance in the different substances in the brain create a snowballing effect, and there’s no way to tell when it is going to resolve.
Tom Crosley: Let me interject with a question or comment. So you said something I thought was important. It certainly was a signpost for me as a listener. You said you’re reading this article in Continuum, which is the publication of the American Academy of Neurology in circa 2014, and you had a lights and sirens moment where these alarm bells are going off in your head and you’re connecting the dots.
What precisely was it that you thought was important about that article and that thought process, for our listeners?
Stewart Casper: Well in the experience of handling a number of concussive brain injury cases, and I actually, I think it was actually Michael Kaplan, New York, who used that frame, a “concussive brain injury” as distinct from a concussion or as distinct from a traumatic brain injury. Um, and I like that. I like that idea from Michael. But we were consistently dealing with the citation cartel and the defense experts who claimed that everyone got better and that the worst point in time after a concussion was immediately after the concussion; immediately after the trauma. And it was, uh, Dr. Giza and Dr. Kutcher from Chicago, who framed that 2014 paper in Continuum who said, “Well, that’s, there’s a primary injury, there’s a secondary injury, and this is what happens.”
Narrator: Stewart’s discovery of the neurometabolic cascade research changed how plaintiff attorneys could counter defense experts who claimed everyone recovers in 90 days. But Stewart’s contribution to TBI litigation goes far beyond reading a single groundbreaking article.
For over 20 years, he’s been systematically curating and indexing every significant piece of TBI research.
Tom Crosley: Stewart, you’ve been known to read and archive every peer reviewed study on brain injury. Uh, how do you approach digesting such a massive body of literature?
Stewart Casper: The predominant way I have for doing that is having a standing search at the National Library of Medicine, PubMed, and the terms I search are “traumatic brain injury,” “mild traumatic brain injury,” diffusion tensor imaging” and, “symptom validity.” And I get an email every weekend and it gives me the top 20 publications that fulfill that criteria. I read through the short summaries that I get from the National Library of Medicine. If it looks interesting, I’ll click on for the whole abstract. And if the abstract looks like it will be fruitful, I acquire the article from the medical, local medical library.
And then I just have a crazy system for indexing, I mean my indexing system, it has to be cross-indexed, particularly some of the, you know, the major research publications ’cause they cover different things. But thinking about the significant categories that would help me, us as trial lawyers. The kinds of—if I was looking for something, where would I go to find this?
Tom Crosley: So I’ve seen your database. You’ve been kind enough to share it with me. Uh, how many years, Stewart, have you been reading journal articles every week and curating the ones that you think are the best for use in your cases?
Stewart Casper: Probably, um, a solid 20 years now. Probably a solid 20 years when things became easily available on the internet. I would otherwise do, um, before I fell into this pattern with the National Library of Medicine, I would just do random searches and then buy the articles.
Tom Crosley: Oh, nice. And does that require—can you do that remotely then you’re-
Stewart Casper: I have two primary categories. One is, what can I use for impeachment and what can I use that’s educational? And when I, and in the latter category, I’m thinking about not only educating myself and the kinds of things that I share on the listserv—because I don’t share everything I read. I’ve curated that stuff initially as to whether I think, in general, trial lawyers would benefit. I may still get some benefit, but how is this gonna get used? But really things that come out that can be used for cross examination, the rules for cross examination are a little bit more generous in Connecticut than they are in other states.
They have to fulfill various criteria and not many people have the patience to both study the stuff and, um, and to index it as I do. I know that I’ve been called a nerd because of it.
Tom Crosley: [laughs]
Stewart Casper: I dispute that I’m a nerd. Um, maybe a little OCD.
Narrator: Stewart’s systematic approach to reading and indexing medical literature has made him the go-to resource in the AAJ TBI Litigation Group. But collecting research is only valuable if you know how to use it in the courtroom. He’s developed specific strategies for leveraging scientific articles against defense experts; particularly when confronting what he calls the “citation cartel.”
Tom Crosley: Some people listening may not know what a citation cartel is. Which is, I think what you’re referring to, is the cottage industry among certain testifying defense experts of writing papers and them citing each other’s papers to give them more perceived credibility or authority so that their papers, which might have been written for a nefarious purpose, are now perceived as generally accepted science. Uh, but why don’t I have you explain what is a citation cartel and how did that affect, uh, the plaintiff’s side of practicing law in these cases?
Stewart Casper: Well, the concept of citation cartel is, as suggested, a group of neuropsychologists who gratuitously cite to each other’s papers. I personally don’t think very much of the science of neuropsychology. Neuropsychology is a, um, a basis for quantifying the relative level of cognitive performance for an individual as compared to a control group that is often the average performance.
But you may start out with someone who is high average or above average to begin with, is superior to begin with. So turning out as average in that context after injury, that’s a relative deficit for that person. So that’s part of what neuropsychology is really used for: for assessing the relative deficits that may exist.
But you don’t need to have a cognitive deficit. And insurance companies, defense lawyers very often conflate the idea that if your average neuropsychology—you are averaging with your neuropsychology scores and your performance—that you’re not injured. But if to be average, if you start out being above average and superior, that’s an injury.
But you can also have a concussive brain injury that’s revealed in physical injury. Most often it’s a post-concussive or a post-traumatic headache. Then you get into the debate over, you know, did they have headaches before these, headaches after, are they different headaches? I mean, those are the kind of battles that you can get into in prosecuting a case.
Narrator: Understanding the citation cartel is crucial, but it’s only part of the neuropsychology battle. Defense experts also rely heavily on personality inventories like the MMPI to suggest malingering or exaggeration, but Stewart has tactical advice on how these tests get misused and what lawyers can do about it.
Tom Crosley: What are some of the problems, Stewart, you see with, uh, the use of MMPI or personality inventories, especially by defense doctors in TBI litigation?
Stewart Casper: Something that is a computerized test, like the MMPI, whether we’re talking about the RF or the three, should have a report that’s computerized and the bad defense doctors will often not run the report through the system. So there is a way to look at the items and the response items to get a sense about whether they’re being honest or misleading.
So whereas the manuals and the reports will talk about limited weight to be applied under given circumstances, the bad defense doctors won’t talk about it. So you need to have the materials. You need to have the responses. You need to get ahold of the manuals, which is also a problematic issue with many neuropsychologists.
Tom Crosley: Are you getting and exchanging the raw data from both the plaintiff and defense neuropsychologists?
Stewart Casper: Yeah. I mean, I routinely file a request for a raw, uh, reciprocal raw data exchange.
Tom Crosley: Some protocols have that only going between psychologists and others allow lawyers also. Which way do you go on that?
Stewart Casper: I think the lawyer is, a lawyer is entitled to a trade secret, and the lawyer is the person who has to ask the questions during a deposition or on cross examination. There’s no excuse as long as there’s a protective order and the materials are not put into the public domain.
Narrator: These tactical insights about neuropsychology testing come from decades of trial experience. But Stewart believes the future of TBI litigation lies not in better neuropsychology, but in objective neuroimaging and biomarkers that can’t be manipulated or disputed.
Let’s join Tom one final time as they explore what Stewart believes is the future of TBI cases.
Tom Crosley: Where do you think TBI litigation is headed in the next decade?
Stewart Casper: I have two answers to that. One of the answers is, um, reflects a concern that I have that lawyers are handling TBI cases without, um, rising to a level of understanding of the science. I don’t think the standard of care is Stewart Casper or Tom Crosley. But you and I have both gone to multiple national programs and I can tell, you know, I am highly confident that in, say, the tri-state area, there are many more lawyers handling TBI cases that show up at the scientific programs—the programs where this material is taught. And there are lawyers, similarly, in the same vein who are not spending what needs to get spent on these cases to work them up properly. They’re expensive cases; they’re like medical malpractice cases, and you can’t do these cases cheaply, you know, to get away with it, to make a fee ’cause you are looking to settle the case and the insurance companies and the defense bar knows who’s gonna try the case and who’s gonna settle the case.
So that’s one way, and the other thing that I, um, that I predict for TBI and TBI litigation because science is dynamic and is going to improve with just the normal evolution of the scientific process, there’re gonna be more discoveries. They’re probably, you know, they’re probably gonna be in the area of biomarkers of which there are now a couple that are approved. But having those approved and having emergency departments make them part of their standard protocol is something else if they’re not gonna get paid for it.
So the great, the great big bill that is cutting back on reimbursement for large portions of, um, the injured population. Um, there’s little chance—although there is some chance—that the biomarkers are going to prove to be efficacious in lieu of CT scans, which is, you know, the alternative if, if in doubt. So these are things that can be done at bedside rather than in a CT scan. And I think overall, that will save money.
I also think that if neuropsychology wants to really survive and thrive, it will begin embracing science as opposed to eschewing science. That means that they’ve got to be willing to look at what do the findings on advanced neuroimaging protocols, what that means, and lawyers need to know to figure out how to do it, when to do it, what’s gonna trigger it, um, which doctors are gonna order it, um, and they’re gonna learn how to both deal with Daubert and Frye issues if they’re presented, and they will be presented. And to go from there. I think what we see in the evolution of Daubert, I think many judges are afraid to rule on some hard Daubert issues that deal with things like accident reconstruction and individual tolerance to injury as opposed to group tolerance to injury. It’s a whole ‘nother area.
Tom Crosley: Right. So I agree with your statement about blood biomarkers being potentially a game changer in the next five to 10 years. I once, I think it was at a Chamber of Commerce event I was speaking at years ago, and it’s a pretty hostile crowd. And I remember saying something like, if there was an eye in the sky, I wish there was an eye in the—because this is a group that was essentially taking the position that we, plaintiff lawyers are, uh, just trying to gin cases outta thin air; that were pursuing non-meritorious cases. And so I was addressing and rebutting that issue and I said, “You know, God, I wish there was an eye in the sky for every single one of my cases that captured exactly what happened for two reasons: I would only take cases where my client was right and I would win every case.”
Well, the blood biomarker is going to give us that equivalent of eye in the sky early on in the post-concussive stage. We’re gonna have corroboration of the type that can’t be faked; that gives us information about the neurometabolic cascade that changes in the brain due to concussive forces. I think once we have that—and we know we can get those tests in some places—but once they’re widely available, it will be one of our screening tools, frankly.
And so lawyers like you and I and others who handle these cases will be able to pick their cases based on the strength of that early, uh, screening tool. And we’re gonna pick the cases where the eye in the sky proves us right.
Stewart Casper: Well, that, that would be great, Tom, if we could do that on the one hand. But I know you, as you know me, it isn’t always the easy cases that we take on.
Tom Crosley: Stewart, what advice would you give to younger lawyers who wanna build credibility in this field of TBI litigation?
Stewart Casper: You really can’t do this overnight. The learning curve is steep. I don’t say that to discourage you, but, um, when I have given lectures, I sort of have created a Dropbox file that I’ve shared with people attending programs at which I’ve lectured. And what I’ve done is sub-curate my curated library and put it—I actually counted it out today. It’s about 26 different indexed levels you need to read and absorb and it’s, I think it’s really difficult.
I think that the scientific literature is very hard, very difficult to follow because it’s so daunting. You see, you know, you see the syllabus and you see the abstract and you can read the conclusion and it’s got all kinds of charts and it’s got a huge number of references. But if you had an idea about what’s the subject category, what’s it in, what’s, you know, how does Casper index this? What’s it there for? is it there for ocular motor dysfunction? Is it there for diffusion tensor imaging? Is it there for neuropsychology? Is it there for good neurology papers?
And, you know, the reason I latched onto that Continuum paper that I talked about is because medical doctors and neuropsychologists have a very difficult time saying, “I wanna dissociate myself,” from something that they’re teaching to medical doctors and neurologists to maintain their board certification. How do you do that? You lose credibility doing it. That’s why I curate papers for specific specialties, whether it be physiatry or neuropsychology or neuroradiology. I want to be able to confront people with their own papers. So you have to find a way to you know, knock off that learning curve in a way that enables you to learn the stuff.
Tom Crosley: That’s good advice. Um, on behalf of the TBI litigation community, Stewart, we thank you.
Stewart Casper: So long. Good to see you, Tom.
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