Challenges and techniques for brain injury cases with unhelmeted cyclists
The lawyer, reviewing the case facts, considered the issues. The cyclist, an urban commuter, had been taking her regular three-mile route to work, primarily using protected bike lanes. An adult with a job that required a professional appearance, she did not feel it necessary to ruin the work she put into getting ready for the office by flattening things out with a helmet. Nor did California law require her to wear one. But when a car ran a red light and t-boned her at 30 miles per hour, helmets were all the defense lawyer wanted to talk about…
Cyclists and head injuries
Before we delve into helmetless cycling cases, a word on head injuries and cyclists. Because cyclists are not protected by a large steel cage, cyclists’ crashes tend to be dynamic injury events. Orthopedic and visible injuries like road rash get the attention. Altered consciousness, concussions, mild traumatic brain injuries – whatever one calls it – the less obvious brain injuries can go undiagnosed. When conducting a cyclist intake one should ask head injury questions. Frequently one will discover an undiagnosed head injury. This is true with or without a helmet, as helmets are nowhere near the head injury panacea people think.
Band aids for a hemorrhage
There is a misguided belief that a cyclist is required to don head armor to use the same roadway that a helmetless driver navigates, on the off chance that the driver hits said cyclist. A driver who suffers a concussion in a crash is not subjected to similar helmet shaming. No-one asks, “Why wasn’t the driver wearing a helmet?” Researcher Ian Walker nails this issue in his paper when he notes “…suggesting that bicyclists must buy and wear protective devices to remain safe is no different from suggesting non-smokers must buy and wear gas masks as a solution to passive smoking.” Walker, Ian: Bicycle helmet wearing is associated with closer overtaking by drivers: A response to Olivier and Walter, 2013 – https://osf.io/preprints/psyarxiv/nxw2k, p. 15.
Bike helmets, while useful for lower speed falls from a bike, lack the structure and weight to specifically reduce injury severity in vehicular crashes. A reading of any bike helmet manufacturer’s owner’s manual makes this abundantly clear, usually in bold print. That said, adjusters, defense lawyers, and potential jurors get fixated on the helmet issue. There’s a multi-pronged approach to educating on the issue, recognizing the trial lawyer trope that when you are explaining, you are losing. As one educates, one can also craft the path toward keeping the helmet issue from going before the jury at all via motion in limine.
Educate, isolate, eliminate, and challenge
Education is straightforward. Using the information above hit the issue head on (tasteless pun intended) in a demand package or mediation brief. Note that helmets are not required by law, use quotes from helmet owners’ manuals to demonstrate they are not intended to lessen the severity in vehicular crashes. Articulate that because of this one anticipates the court will grant a motion in limine to keep the lack of a helmet from going before a jury.
Isolating takes more effort. It involves extensive preparation for expert depositions where the helmet issue comes into play such as the biomechanist, neurologist, or neuropsychologist. This is where research, literature, and the helmet owner’s manual again come into play. With experts it is important to get specifics. Exactly how much would a helmet have reduced the brain injury? In what way? Frustrated experts will sometimes retreat into saying things like, “Well it is just common sense that if you’re wearing something on your head the injury will be less significant.” If it is common sense, it is not the provenance of an expert. Generally, the expert’s answers here are mushy: it probably would have reduced the injury. How much and in what way? They’ll be unable to provide specifics, so go hard as they try to evade concrete answers. Then there are cases like Chris Dolan’s verdict in Alameda County, where he used the defense’s position that there was no brain injury at all as the framework for expert examinations and an ultimately successful motion in limine to prevent the defense from talking about the lack of a helmet. By isolating the experts’ opinions and their lack of foundation, one can then begin to craft a case-specific motion in limine to preclude expert testimony on the issue.
Finally, should the lack of a helmet be coming in, use it to skim anti-cyclist jurors out of the jury pool. Jurors who feel the cyclist should have been wearing a helmet despite there being no legal requirement to wear one are ripe for removal for cause. For more on effective cause challenges see Entirely Impartial, Plaintiff January 2023: https://plaintiffmagazine.com/recent-issues/item/entirely-impartial/
Outro
Back to our lawyer. The lawyer educated the defense. In so doing, the defense recognized that what they initially thought was a strong comparative fault argument was unraveling, leading to a policy limit offer in the case.
