“Think of the brain like a city’s power grid. After a storm, most lights come back on quickly, but in some neighborhoods, the transformers are fried. The wiring’s damaged, the lights may never work the same again.” – Tom Crosley
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.
From Defense Mantras to Scientific Truth
The defense always starts with the same worn line: “Most people recover from mild TBI in just a few weeks.” While that may be true for most, it’s not the whole story. A significant minority never recover at all, and those are the clients who end up in our courtrooms. In this episode, Tom shares game-changing research: Longitudinal Study of Postconcussion Syndrome: Not Everyone Recovers.
This groundbreaking study is the peer-reviewed science that proves what we’ve known all along. Learn about the critical three month threshold where the odds flip, why the ‘miserable minority’ concept is your strongest weapon, and how to use powerful analogies to make the invisible injury visible to juries.
Key Takeaways
- How the groundbreaking 2017 study proves that only 27% of patients with post concussion syndrome beyond three months ever recover
- Why the three month threshold is the inflection point where recovery odds flip dramatically
- Learn about the “miserable minority concept and why 15-20% of mild TBI patients never recover
- Courtroom-tested analogies that communicate the challenges of mild TBI to jurors
- Cross-examination strategies to lock defense experts into admitting the science behind non-recovery
Resources
The Longitudinal Study of Postconcussion Syndrome from the Journal of Neurotrauma: https://pmc.ncbi.nlm.nih.gov/articles/PMC5397249/
Winning the TBI Case — Episode 9: TBI: Not Everyone Recovers
Crosley Law | Aired: September 30, 2025 | Runtime: 23:05 | Speakers: Narrator, Tom Crosley
[0:00] Tom Crosley: Think of the brain like a city’s power grid. After a storm, most lights come back on quickly, but in some neighborhoods, the transformers are fried, the wiring’s damaged, the lights may never work the same again.
[0:11] Narrator: 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 sixty 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. The defense will tell you that most people recover from mild traumatic brain injury in just a few weeks. But what they won’t tell you is what happens to those who will never recover. Let’s join Tom as he reveals groundbreaking research that changes the game for TBI litigation.
[1:12] Tom Crosley: Welcome back to Winning the TBI Case. I’m Tom Crosley. Today’s focus is one of the most important truths in mild traumatic brain injury litigation, and that is this, that not everyone recovers from a mild TBI. The defense will almost always start with the well-worn line that most people recover in a few weeks, six weeks, maybe twelve weeks at the outset. And yes, that is true for most people, but here’s the rest of the story. A significant minority don’t recover at all. Those are the clients who end up in our courtrooms. And so I’m gonna be talking today about an article that came out in 2017 from the Journal of Neurotrauma, and I’m gonna talk about why this paper matters to those of us who are litigating TBI cases. The article itself has the full title of The Longitudinal Study of Post-Concussion Syndrome: Not Everyone Recovers. I remember when this paper came out because it was a big deal in the TBI litigation world. It finally gave us peer-reviewed, published, respected science that said what we’ve been trying to prove all along.
[2:31] Tom Crosley: The clients we bring to court in these cases aren’t recovering despite the defense mantra that they usually do. So for context, the Journal of Neurotrauma is a leading peer-reviewed journal devoted to brain and spinal cord injury. It has rigorous editorial standards. It has expert reviewers in neurology, neuroscience, and rehabilitation medicine. When you cite to this journal, you’re standing on solid ground. Before we talk results, let’s talk about who the study actually included because that’s critical for an understanding of the science. It’s also critical for our courtroom credibility if we’re gonna rely on this study. So it was two hundred and eighty-five people in the patient population over a multi-year period from a Toronto hospital. All of these patients were seen by a neurologist with specialized training in concussion management. And so we have a great cohort of people that fit a concussion definition that are followed over a length of time. The patients were excluded if they had abnormal CT of the brain or abnormal MRI of the brain. So these are people with normal imaging just like most of our mild TBI clients. They were excluded if they didn’t pass symptom validity checks, if they didn’t do well on the test of memory and malingering, the TOMM test.
[3:51] Tom Crosley: If somebody could claim that there was some indication that these people were exaggerating their symptoms or malingering, they were out of the study. They were also excluded from the study if they were in litigation related to their injury. So now we’ve got a nice clean patient population that researchers could draw long-term conclusions from about what happens to PCS and how long does it last. Why does this matter? This cohort represents the natural history of PCS in carefully vetted patients. There’s no abnormal imaging to explain away symptoms. There’s no litigation to blame. There’s no malingering to point to. This strips out all of the defense’s favorite alternative explanations before we ever get to the numbers, and that’s why I like this study. So once you understand who’s in the study, the findings from the study land with real force, and here are the findings. Only 27% of the patients with post-concussive syndrome ever recovered. It’s so important, I’m gonna read it again. If they still had the symptoms three months out, only 27% of that population of people ever recovered.
[5:09] Tom Crosley: That means, what, 73% of the people with symptoms at three months had the symptoms forever. That’s huge. Of those that did recover, two-thirds of them recovered within the first year. So now we can say that patients who still have PCS symptoms more than a year after their injury are more likely than not to have them permanently. And here’s another kicker. According to the study, if the symptoms persisted three years, no one recovered after that. So you’ve got a significant group recovering in the first three months. From three to twelve months, you’ve got still a pretty significant group recovering. From one year to two years, you’ve got very few people recovering. From year two to year three, even fewer still, and beyond three, nobody. And so this really helps us reinforce that patients who don’t do well following TBI and are still symptomatic more than three months later are probably going to be symptomatic chronically, meaning forever. But there’s another thing that I really like about this study, and it’s what I call the three-month threshold when the odds flip. It’s an inflection point for us. What do I mean by inflection point? In the first few weeks of a TBI, if you take a population of people that have had a concussion or a mild TBI, in the first few weeks, most people improve.
[6:30] Tom Crosley: Certainly by week six or week twelve, most people have improved. But once symptoms cross this three-month mark and meet the criteria for PCS, the odds flip. Now you’re no longer in the most recover group. You’re in the group where most never fully recover, and that’s a profound shift that our juries need to hear. This leads me to this other concept called the miserable minority. This is a substantial subset who don’t bounce back. It’s the medical literature on TBI is replete with this concept called, quote, “the miserable minority.” Many studies place this percentage around fifteen to twenty percent of the mild TBI population. Some cohorts and studies report twenty-five to thirty percent. I’ve seen one as high as 43%. I’ve seen one as low as five percent. The bottom line is they all coalesce around this fifteen to twenty percent number depending on different definitions and different methods. Most defense experts, in my experience, will concede this concept of miserable minority and the fifteen to twenty percent range that fall into this category. If someone tries to push it lower or claim it’s mostly psychiatric, that’s not what the weight of the literature shows. So make sure your experts are prepared with the right citations and the right sound bites to the literature that will support and bolster your case.
[7:49] Tom Crosley: So let’s talk about why don’t some people recover. The literature is still kind of leaving that as an open question, but there are various theories, and here’s a very common and emerging theory. It’s called the neurometabolic cascade. So sometimes jurors want a why. So if you have an expert that can give them a why, and give it to them in plain English, that may help fill in the puzzle pieces in your case as you’re building that wall of evidence. So here’s what I’ve done in some cases. I’ll have a doctor, usually a neurologist, talk about the neurometabolic cascade, and they’ll talk about how a concussion is a biomechanical insult that stretches or shears neurons in the brain. We’re usually showing this with images and videos and flip charts. I’m gonna do this in lawyer speak now. There’s an ionic disruption that follows. So potassium is out, calcium floods in. The brain expends massive energy to restore balance, and cerebral blood flow drops, and it creates what’s called an energy crisis in the brain. This is the neurometabolic cascade. And so because of axonal injury, the brain’s wiring, it leaves these networks less synchronized, less efficient. Now, in truth, following concussion, most brains will reset.
[9:06] Tom Crosley: But in the miserable minority, that cascade leads to lasting structural and functional change. At least that’s the theory, and that’s why symptoms persist. There’s this concept called neuroplasticity, which explains why the brain can sometimes rewire around an injured area to improve, which is why a lot of times symptoms improve over time. But you’re usually left with, in many of these cases, some deficits that will persist into the future indefinitely. So I’ve come up with a few analogies that I like to use. Analogy one is called the blackout analogy. I use this in cases where there’s a loss of consciousness on my client, and here’s how it goes. Think of the brain like a city’s power grid. After a storm, most lights come back on quickly. But in some neighborhoods, the transformers are fried, the wiring’s damaged. The lights may never work the same again. Maybe they have to reroute the electrical supply through a different grid. That takes more energy. It takes longer. It’s not as efficient. That is the miserable minority. That’s one example. Here’s another analogy, and this is the one I’m more likely to use in court cases, and it’ll either be from me speaking in argument or more likely from an expert witness giving this analogy for us, and it’s the blocked intersection analogy.
[10:22] Tom Crosley: Imagine the brain is like a downtown street grid, and a concussion, imagine it’s like a wreck that blocks a key intersection. Now, traffic can still go around that intersection. It can still get from point A to point B, but it’s got to reroute. It’s slower. It’s full of detours, and the traffic burns more fuel to get from point A to point B. That’s why there’s slowed processing. That’s why there’s reduced efficiency. That’s why these patients have increased mental fatigue. These are all the hallmarks of PCS. A certain region of the brain has been damaged, and the brain is trying to figure out how to do its job by working around the damaged wiring. I think that analogy can be effective. We often will back it up with a image of a downtown intersection, usually a cartoon-style image showing the blocked intersection and the traffic rerouting around it. I’ve seen several great examples of this. I’ve even created a few myself.
[11:19] Narrator: If you’re finding value in today’s episode, here’s how you can take your TBI practice to the next level. Subscribe to our newsletter at crosleylaw.com/podcast for exclusive case studies, resources, and trial strategies you won’t hear anywhere else. That’s crosleylaw.com/podcast or click the link in the show notes below. Don’t just listen to the strategies, implement them.
[11:53] Tom Crosley: Now let’s talk about cross-examination and how this might play out in court. And say, for example, we have a defense expert on the stand. So it might go something like this. “Doctor, do we agree that there’s a percentage of patients who just don’t do well after concussion, and that that percentage is called the miserable minority? Yes. And that is a very well-known concept in all the medical literature discussing concussion, mild TBI, and this field, right? Yes. And certain risk factors exist for types of patients that are more likely to end up in that miserable minority, right? Well, yes. So, for example, women like my client are more likely to fall in the miserable minority, aren’t they, doctor? Yes. Elderly people like my client are more likely to fall into this category too, aren’t they, doctor? Well, yes. And the more symptoms a patient reports, the more likely that patient is to fall into that group as well, right? I mean, don’t studies show that each additional symptom reported by the patient raises the odds of long-term poor outcomes by twenty percent?” You’re looking for a yes here. If you don’t get a yes, you can always go back to the paper that we talked about at the top of the podcast, Longitudinal Study of Post-Concussion Syndrome: Not Everyone Recovers. That statistic of each additional symptom raising the odds of a long-term poor outcome from PCS by twenty percent, that comes from that paper.
[13:18] Tom Crosley: It’s one of the hallmarks of that study. And so you could even end your cross-examination with the study itself. You could say, “Doctor, finally, this 2017 Journal of Neurotrauma article,” and you can refer to the article that not everyone recovers because we like that heading too, don’t we? It found that in a cohort screened to exclude malingering and litigation, only 27% of that patient population ever recovered. And the longer the symptoms lasted, the more likely they were to be permanent, such that no one in the study recovered if their symptoms were still there after two or three years. Isn’t that true, doctor? And you’re going to get a yes, or you are going to get equivocation. But you’ve already set this up, if you’ve done it right, with your own expert in their direct exam before you get to that defense expert. And so we’re gonna teach the jury and lay the foundation for this concept that your client who’s in court is part of a well-recognized scientific study group of patients that simply don’t do well following concussion. And so how does the defense respond to this? Usually, in my experience, it’s with faulty logic. You’ll hear this defense response, and it’s an attempt to get the jury to buy into the fact that, hey, most people don’t end up with PCS following a concussion.
[14:47] Tom Crosley: Therefore, the plaintiff probably didn’t end up with PCS, and it must be something else. That’s kind of what they’re wanting the jury to buy into. It’s kinda like saying it this way: “Hey, jury, because most people don’t die in plane crashes, Widow Smith’s husband here must not have died in a plane crash.” Well, that’s silly, right? We would never accept that after the fact. That’s called bad logic. Once the case-specific evidence is in, the symptoms, chronology, the neuropsych testing, the treating records, population averages now aren’t relevant. They don’t erase this patient’s proof in this case. And remember, once symptoms persist beyond three months, the odds flip anyway. Beyond three months, if the patient is still having post-concussion syndrome symptoms, then now it’s likely that they’re going to have them forever. Here’s another way that I like to cross-examine defense experts. I use the medical records in the case, and I will walk the jury through a chart of the medical records and align what’s documented with what the literature recognizes as a brain injury symptom. And so I’ll point out in the medical records, and I’ll start making a list, usually on a flip chart with a defense expert.
[16:04] Tom Crosley: Every time there’s a mention of headaches, dizziness, balance problems, memory loss, trouble concentrating, brain fog, mental fatigue, irritability, sensitivity to light or noise, depression, anxiety, sleep disturbances, insomnia, personality or behavior changes. You get the picture. You’re gonna go through all your medical records. You’re gonna find these symptoms that are consistent with TBI, that are consistent with post-concussion syndrome. You’re gonna find them identified in your medical records more than three months after your injury. You’re gonna use the article we talked about to show this helps prove permanence. And regardless of what the witness wants to say, remember this is the defense witness, and it’s cross-examination, so it’s you talking. They become your puppet. Regardless of what they want to say, you force them to show the jury all the references in the client’s clinical medical record that prove your case. That’s a pretty bulletproof cross-examination strategy. I’ve used it many times. It works. So when the jury sees the pattern in black and white, and over time they understand this case isn’t an exaggeration, we can’t buy into this defense of, “Hey, most people don’t have this, so maybe the plaintiff didn’t have it.” That doesn’t make sense.
[17:20] Tom Crosley: That’s faulty logic. So where would you put each piece in a trial? You could potentially, in opening statement, frame your client as part of this recognized category, the miserable minority. Even the defense will agree the concept of the miserable minority. They may not agree that it’s your client that fits in it, but the evidence is very clear in this case that it does. You might foreshadow this three months odds flip and the permanency rule after eighteen to twenty-four months, certainly after three years, depending on how long after your injury your case is going to trial. In your direct exam of your experts, you would establish this study, its credibility. You would establish who is included, who is excluded from the findings. You would talk about these three-month and eighteen to twenty-four-month thresholds. You might even explain this neurometabolic cascade as a scientific explanation for what’s going on and why some people don’t do better. You would cross defense experts to lock in these percentages, the risk factors, the additional symptom risk. You talk about the paper’s results if you’re allowed to in your venue. I tried a case in Florida where they don’t let us get into the specifics of a paper. But in Texas, where I try most of my cases, we do. We are allowed to get into it. Once permanency is established and we’re talking about damages, then we justify future medical care.
[18:39] Tom Crosley: We justify work accommodations. We justify mental health treatment, household supports. These things are expected, no longer speculative. So let’s try to bring it all home. The study that we’re talking about, Longitudinal Study of Post-Concussion Syndrome: Not Everyone Recovers, Journal of Neurotrauma, 2017, ought to be in every plaintiff lawyer’s arsenal that does TBI cases. It was a carefully constructed study of real PCS patients, symptoms beyond three months, normal scans, both CT and MR, no malingering, no litigation. And in that well-screened cohort of patients, only 27% recovered at all. And if symptoms reached two to three years, no one recovered. And that’s why the defense’s narrative that most people recover from a concussion fails once you pass this three-month threshold, because the odds flip. And that’s why this paper is such a watershed moment for those of us trying these cases. If I had to sum up this study in a single line, I would just read from the abstract itself about four lines down, and it’s this, “We found that only 27% of our population eventually recovered, and 67% of those who recovered did so in the first year.” Wow.
[20:07] Tom Crosley: All right. That tells us most people never recover. After three months, most people never recover. After a year, if they’re still symptomatic, it’s even a slimmer chance that they’re going to recover. And it goes on to say after two to three years, no one in the study recovered. But you know what else I like to use from this paper? So often, because of the rules of evidence and these being scientific articles or learned treatises or whatever you wanna call them in your state, we don’t get to actually show the document to the jury. They certainly don’t receive it into evidence and take it back to the jury room. But there is a figure two in the article. It’s a table. It looks like this. And I can and have successfully been able to show only the table. I put it up on a big screen, and I’ll have a witness on the stand, and I’ll identify the symptoms reported by my client, and I’ll compare them to the study participants. Remember, all these study participants, none of them were in litigation because they excluded all the people in litigation. And remember, none of them had abnormal MRI scans or abnormal CT scans because those people were excluded too.
[21:24] Tom Crosley: So this is your client, just like your client, but with nothing to gain, right? And so I’ll show that by far and away, number one symptom that persists is headache. Number two, difficulty concentrating. These are both around the 70% mark. Number three, fatigue. Number four, brain fog. And it kind of goes down, but I’ll identify all the ones that my client has that are reported in my client’s records. And by pointing that out and comparing it to this article, I’ve now been able to show that my client is just like what the scientific literature shows for people that aren’t in lawsuits. This is just like what we expect from people that have a mild TBI and are still symptomatic. It’s powerful stuff. So our job is to make the invisible injury visible, linking who was studied, what was found, why it matters, using real science so the jury has the story it needs to deliver justice. And that’s what Winning the TBI Case is all about. I’m Tom Crosley.
[22:38] Narrator: If today’s episode helped 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.
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