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The infant plaintiff (plaintiff) has a history of head trauma

The infant plaintiff (plaintiff) has a history of head trauma. In the year 2000, he was struck in and above the left eye by a baseball when he was tagged while sliding headlong into first base. He apparently was not treated for this personal injury. On June 16, 2001, a portion of a bathroom ceiling fell, striking plaintiff in the head and neck. An ambulance report states that he was found, semiconscious, on the floor by his mother and complained that his neck & back hurt. He was taken to LM Medical Center’s emergency room, where bruising was noted around the neck and back. A head CT scan was negative. On May 15, 2002, plaintiff was struck in the head by a basketball. He was seen at the emergency room of G Hospital, where he was diagnosed with contusions of the face, scalp and neck. On September 8, 2004, plaintiff was a back-seat passenger, secured by a lap belt, in an automobile that rolled over at least three times, according to witnesses. He was transported by ambulance to L Hospital, where a CT scan of the head and X rays of the chest, lumbar spine and left knee were negative. The ambulance report and hospital record differ on whether plaintiff experienced a brief period of unresponsiveness. On October 13, 2004, plaintiff was again seen at L Hospital in connection with an unspecified motor vehicle accident. He complained of headache and dizziness over the preceding three days, shaking of the legs upon awakening that morning and decreased appetite. His condition was diagnosed as acute viral illness and post-concussion syndrome.

This action seeks damages arising out of injuries allegedly sustained by plaintiff in the apartment owned and maintained by defendant when the bathroom ceiling partially collapsed. The complaint, as supplemented by plaintiffs’ verified bill of particulars, claims that plaintiff experiences post-traumatic headaches as a result of a head injury with loss of consciousness. Plaintiffs’ supplemental verified bill of particulars additionally claims that he suffers from various impairments consistent with a history of head trauma.

Following the exchange of expert witness information, defendant was informed that plaintiffs would offer testimony from EG, Ph.D., an expert in neuropsychology, as to the effects of the accident of June 16, 2001 upon plaintiff’s intellectual and cognitive ability, particularly as to the diminution of plaintiff’s cognitive and intellectual abilities. The notice indicates that the witness will compare pre-accident and post-accident abilities and educational achievement and will testify that plaintiff’s post-accident cognitive functioning is significantly diminished from its pre-accident state. The notice does not identify the basis for comparison of pre-accident and post-accident abilities. Plaintiffs did not identify any other expert witness who would be produced.

Following jury selection, defendant interposed the instant motion to preclude the proposed testimony of plaintiffs’ neuropsychologist. Defendant argued that the witness should be precluded from giving testimony relating his psychological test findings to a medical diagnosis of brain injury. Dr. EG concluded, in two reports he submitted, that plaintiff sustained a traumatic brain injury (TBI) as a result of the ceiling collapse.

To Be Cont…

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