Declaración de apertura de daños: caso de lesión cerebral catastrófica
Diagrama de lesiones por Duane Hoffman.
Ambas partes utilizaron extensas exposiciones demostrativas durante la apertura. Básicamente acordamos que yo podía usar lo que quisiera mientras ellos pudieran usar lo que quisieran.
La transcripción no es muy precisa (se queda corta). La sala del tribunal estaba grabada en vídeo. Si queríamos una transcripción rápida, al final del día el alguacil copiaba las grabaciones y se las proporcionaba a un taquígrafo. El taquígrafo transcribía entonces a partir de los vídeos con un éxito moderado.
Francamente, es un poco molesto intentar leer esto. A veces parezco completamente analfabeto. Y no se pueden ver las pruebas, los vídeos o el PowerPoint. Sin embargo, da una idea de la parte de daños de la declaración de apertura.
6 This is the overview of C's
7 injuries that I'm going to talk to you about now. She
8 had what's generally called a diffuse axonal injury,
9 meaning that there wasn't one, you know, particular --
10 there it is, that's the part of the hemorrhage that is
11 the problem, it's all over her brain.
12 It's in all of these different areas that
13 are noted here. It's pretty much all through it. The
14 doctors -- and you'll be able to see brain and
15 neurologists looking into the brain and showing you
16 all of the problems by videotape.
17 At this point we are going to show you an
18 animation that's not an actual brain surgery, but
19 we -- there are so many medical records; for me to
20 tell you them would take a long time and be very
21 boring, and instead, we can show it to you.
22 This was recreated, and doctors have signed
23 off on it as being what happened with Chanetelle. I'm
24 going to do this without any explanation. During
25 trial we'll have somebody explain this.
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1 (Video playing).
2 That was the first surgery. And what
3 basically happened, I'm not a neurosurgeon, but just
4 so you know, when the brain is injured like that, like
5 any body part, it wants to swell.
6 So in order to prevent probably death in
7 this case, the doctors have the technique where they
8 actually take off parts of the skull, and that allows
9 the brain to swell beyond, you know, the head, where
10 it needs to go, and then eventually it will go back.
11 And that happened. They actually put the
12 skull in a freezer, a piece of it in a freezer, and it
13 stays there for, in this case, about half a year.
14 So this is going to be the second surgery of
15 this procedure. There were lots of other surgeries,
16 and I'll talk to you about those later, but this is
17 the second surgery on putting the skull back.
18 (Video playing.)
19 It's amazing, surgery, and -- they were able
20 to put most of it back together, but you can see it's
21 not quite all the way.
22 Looking at the damage to C's brain
23 is an interesting medical feat. There is a
24 neurologist who is -- has a very, very high quality
25 brain imaging beyond MRI.
0022
1 And this is kind of Greek to some people,
2 including me, but I have a blowup here. And MRIs are
3 kind of like, they take slices this way, so it's kind
4 of -- you're not seeing a three-dimensional, and
5 that's why there's so many of them.
6 So, for example, what this shows are pretty
7 much black holes. The black holes are where the brain
8 hemorrhages were that have permanently damaged the
9 brain. And these, again, are scattered all through
10 C's brain.
11 But I just wanted to pull one so you could
12 see it. There will be more testimony on how her brain
13 was injured from a scientific standpoint.
14 C was in a coma for five weeks at
15 Southwest Medical Center. She has had a very
16 difficult course of treatment and came close to death
17 many times.
18 She is, you know, a miracle, because in
19 April they were going to put her in a, basically, I
20 don't know a better word to say this, but more like a
21 warehouse type of place where a person that's
22 completely non-responsive goes, you don't need therapy but
23 they'll care for you. It's a hospital bed where -- so
24 she'd been stabilized by this time.
25 And I think it was the morning that she was
0023
1 destined to be moved, she startedtalking -- it's in the chart
2 notes, and it's quite remarkable, that that was one of
3 her miracle points, and changed the course of what
4 she's able to do today.
5 This is C, this is when she
6 has had -- her skull piece is not there, so you can
7 see that her temple is sunk in. This is her long-term
8 boyfriend, who is still her boyfriend and fiancé,
9 J.
10 Because of the coma, and then how she's been
11 able to recuperate and what she's left with,
12 C is appearing in this case under her
13 guardian, KB is here. He won't be here
14 during the entire trial due to his commitments because
15 he's a full-time guardian.
16 He's appointed by the court to authorize
17 this litigation, the hiring of Mr. J. And
18 this -- and basically, at this point, to manage every
19 single aspect of C's life because she did
20 not -- she was incompetent to do so, in part because
21 of the coma, and then her severe restrictions after.
22 So I'd like to talk about some of these
23 injuries. These are hard to read, but we're going to
24 be going over them quite a bit.
25 Do people want to stand up while I do this?
0024
1 THE COURT: Do you need to set up?
2 MS. KOEHLER: I just need to get it, and
3 then set it up.
4 THE COURT: (To the jurors) Did you want to
5 stand up for a second? You're welcome to.
6 MS. KOEHLER: So these are the injuries that
7 she suffered. And I'm doing it this way rather than
8 showing you, literally this many medical records,
9 piece by piece. So we already talked about the
10 traumatic brain injury, which is the most severe
11 injury. She --
12 THE COURT: Do you need a laser pointer?
13 MS. KOEHLER: No, I'm okay.
14 This is a little bit bigger, so you could
15 see it a little bit better. She was obviously not
16 able to function without mechanical equipment, so she
17 agreed, through a tracheotomy tube that was placed,
18 and you'll see that she did have a recurrent lung
19 collapsing. Unfortunately she got MRSA.
20 She had right-sided rib fracture, she had
21 problems with her lungs, fluid buildup in the lungs,
22 she had -- her spleen was lacerated from the
23 collision.
24 She had major problems with her feeding
25 tube. To this day she has -- she literally has a scar
0025
1 that looks about like this, maybe it's a little
2 taller, it's a big -- it's very thick. Because they
3 had to do so many operations on that feeding tube, it
4 got infected.
5 She just -- that was -- it was almost
6 life-threatening at times, it was very, very
7 problematic. Peritonitis, which was the infection,
8 she has septic shock, recurrent urinary tract
9 infections because of the catheter injuries, and she
10 also ended up having a blood clot. This was just a
11 very sick gal.
12 So let me go to the surgeries. And this is
13 a little bigger. These are just representatives.
14 This is of what would generally happen.
15 So the first procedure that was done of her
16 brain was to put a monitoring device inside of it, into
17 it. You saw this surgery, the second surgery is one
18 of the surgeries that you saw.
19 She had a chest tube surgery, she had
20 feeding tube surgery, she had breathing tube surgery,
21 she had another chest tube surgery because of
22 complications.
23 On March 11 she had the abdominal leaking
24 and the sepsis and all that, so she had that repeated
25 feeding tube surgery. She had to have lung intubation
0026
1 on March 14, she had to have it again on March 21st.
2 And then like I said, it's about half a year
3 later, September 23rd, she had the final surgery to
4 reattach her skull piece.
5 So these are surgical procedures, not the
6 multiple other procedures that she had. The date of
7 her discharge diagnosis -- normally when you go to the
8 hospital and you have a discharge diagnosis you have
9 one or two things. As you can see, she had 14 items
10 on her discharge diagnosis. I'm going to show you
11 those in a minute.
12 This is -- her day of admission was
13 February 27th and her date of discharge, which was, as
14 I told you, the miracle when she was able to not be
15 discharged to be warehoused to be rehabilitated.
16 This is a bigger version of her discharge
17 diagnosis. So again, her admission discharge is
18 different than your discharge diagnosis, which is why
19 I'm going through this again.
20 She has a traumatic brain injury, and this
21 is their words, not mine, acute respiratory failure
22 with tracheostomy placement and also removal, right
23 pneumothorax with chest tube placement times two
24 resolved.
25 Pulmonary contusion, the fracture of the
0027
1 right fifth rib, the splenic injury, grade 1. Her
2 gastro tube placement. She had a laparotomy for the
3 G-tube erosion with new placement of the G-tube.
4 Spasticity, the entire left side, greatest in the hand
5 and foot.
6 She had some other issues like dehydration,
7 acute blood loss, anemia, hyperkalemia, leukocytoses,
8 and narcotic dependence due to the pain medications
9 they were giving her, so this was as of April 3rd,
10 2009.
11 What I'm going to show you now is a video of
12 Ctaken on May 12, 2009. So this is --
13 I need power.
14 All right, so this in May of 2009. I
15 believe that this entire video is like an hour and a
16 half, so it's not what you're going to be watching,
17 you're going to be watching, I believe it's something
18 like four minutes, so you might see some editing, and
19 it's simply because it was an hour and a half.
20 So this is C in rehab on
21 May 12, 2009. Let me tell you one other thing. We're
22 going to have sound with this, and I'm not sure,
23 because this is an open therapy room, you might hear
24 therapists that are talking to C and other
25 people talking, so it might be a little distracting,
0028
1 but I think you can sort it out.
2 THE COURT: Would you like to take a break
3 while you work out the technology?
4 MS. KOEHLER: He's got it, but he's got a
5 30-minute version.
6 THE COURT: I'm going to give you the
7 morning break while we work with technology to try to
8 figure it out. Leave your pads on your chair and go
9 on back to the jury room. About 15 minutes, folks,
10 roughly.
11 (Jurors exit courtroom.)
12 (Recess was taken.)
13 (Jurors enter courtroom.)
14 THE COURT: Have a seat.
15 (Playing Video.)
16 MS. KOEHLER: My apologies. She was
17 discharged from the hospital on April 30, so a month
18 and a week later in the rehab. The other woman in
19 this film is K, which is C's
20 grandmother, the blond woman.
21 (Video concluded.)
22 MS. KOEHLER: We'll be showing more pieces
23 of this.
24 For example, she's going to be working on
25 speech. She works with a number of different
0029
1 therapists to reconstruct her ability to do some
2 things like speech and memory.
3 You know, the reason that she can't walk is
4 not due to an orthopedic problem, she didn't break
5 bones and she's not paralyzed from a spinal cord
6 injury. She's got a very severe brain injury.
7 You probably don't know very many people
8 that have a brain injury that has resulted in
9 paralysis and spasticity of parts of the body.
10 The way that this works is the primary blow
11 is to the right side, and that correlates to the left
12 side being, for whatever reason, I don't understand it
13 myself, that's the side that is paralyzed and spastic.
14 She's wearing the helmet, and she does that
15 until she gets her brain -- sorry, her skull put back
16 together, so it's a protective device.
17 C, I can't remember exactly --
18 we're getting closer to the end, so I'm trying to
19 remember exactly what's on my machine, but she was not
20 able to walk much better than this after the hospital
21 and getting through all of this rehab.
22 Washington State and Oregon do not have a
23 specialized inpatient program for people with severe
24 brain injuries that's devoted to that, this is more
25 general kind of therapy.
0030
1 So for that reason, her guardian authorized
2 her to go to a brain injury specialty center in West
3 Virginia. And she did that in between November and
4 December of 2009.
5 They wanted to keep her longer. You'll meet
6 C, and you'll see that she is -- she is a
7 forceful personality. She does not want to stay away
8 from her family and she wanted to come back here, but
9 she did stay for a full month.
10 And when she left, she was able to walk.
11 Maybe not like you or I, but she was able to walk. So
12 it's gotten -- it eventually -- brain injuries, you
13 can progress with or without hard work if you're
14 lucky, and then you plateau after I think --
15 the doctors will say two years after an injury, you're
16 pretty much as good as you're going to get, although
17 you can always work to strengthen and do that.
18 So she made remarkable progress from the
19 time she was discharged and then for the next two
20 years. She really did do well. But there's a feeling
21 on how well she can ever get.
22 So in February of -- the date's on the next
23 page.
24 MR. SCARPELLI: January 2011.
25 MS. KOEHLER: January 2011 she -- a company
0031
1 that was part of her guardian went back to court. She
2 was no longer comatose and she was no longer in a
3 rehab facility.
4 After she left Virginia she came back to
5 stay with her grandmother, and then she and her
6 boyfriend, J, moved out into an apartment for a
7 while -- it's back and forth from the grandmother to
8 this apartment to the grandmother, but for a while
9 they had an apartment.
10 And she went back to court to have some of
11 her rights restored, because you'll remember when the
12 guardianship was entered, it was a complete
13 guardianship because she had just come out of a coma.
14 So these are the rights that were restored
15 to her. She can vote, she can possess a license to
16 drive, though she doesn't, she can consent or refuse
17 to medical treatment, she can decide who will provide
18 care and assistance to her, and she can make decisions
19 regarding her social life.
20 This is what she still cannot do. She
21 cannot marry or divorce, she cannot enter into a
22 contract or make or evoke a will, she cannot appoint
23 someone to act on her behalf, she cannot sue or be
24 sued other than through her guardian, she cannot buy,
25 sell, own mortgage or lease property, and the guardian
0032
1 continues to have access over her medical records.
2 In other words, what happens is that the
3 guardian manages most of her affairs. She gets, for
4 example, an allowance. She has difficulty managing
5 anything. And we'll hear from some other people that
6 work with her on a regular basis as to how challenging
7 that is.
8 Let me tell you a little bit about
9 C before I finish here. C was born
10 to parents who were not the best. Her father has
11 definitely gotten better as he's gotten older. He's a
12 source of a parental involvement now in her life,
13 whereas in her childhood he was absent.
14 Her mother, I think she -- I think C has
15 seven brothers and sisters, all of whom have different
16 fathers, so there are a lot of half-siblings.
17 Her mother did not maintain a household for
18 the children that was regular, so C was moved, for
19 example, periods of homelessness on top of it.
20 So she did not have the privilege of going
21 to an elementary school and a junior high and a high
22 school in the same -- you know, like our children do.
23 It was constant upheaval and difficulties with her
24 mother.
25 Regardless of all that, I call C --
0033
1 and I think that the words to me that describe
2 C es que tiene realmente
3 agallas.
4 Abandonó el instituto, pero hizo
5 su GED. Se sometió a una prueba a principios del tercer grado, y
6 luego no volvió a ser examinada por cosas como el coeficiente intelectual. Su coeficiente intelectual
7 era normal, estaba en la media. Y aprobó su GED,
8 lo que requiere de cierta capacidad cerebral para hacerlo.
9 Y en el momento de esta colisión ella estaba
10 viviendo con J. Habían conseguido un apartamento
11 juntos, y ella estaba - tenía un trabajo a tiempo parcial proporcionando
12 cuidado de niños para una mujer con un niño autista.
13 Su pasión en la vida son los niños, probablemente
14 porque se pasó la vida cuidando de sus hermanos menores
15. Eso es lo que quería hacer
16 con su vida, su gran sueño era tener su propia
17 guardería.
18 Eso era... eso, para ella, sería
19 absolutamente lo mejor de la vida. Quién sabe, porque
20 tenía 18 años cuando esto sucedió.
21 Así que como persona con lesión cerebral ahora, hay una
22 cuestión un poco diferente. Su verdadero valor está
23 todavía ahí, y lo verás, pero hay algo
24 más que está ahí, y es que ya no es
25 la misma persona. Todavía puedes ver trozos de
0034
1 ella, y si estás con ella durante una hora, vas a
2 ser atraído por ella.
3 Pero lo que ves durante un corto periodo de tiempo
4 no es lo que obtienes con C. Tiene un
5 menor coeficiente intelectual, se esfuerza mucho por no mostrar ningún signo
6 de estar herida en absoluto.
7 No reconoce que está lesionada,
8 no quiere estar lesionada, no quiere
9 actuar como si estuviera lesionada, no quiere tener
10 nada que ver con ser etiquetada como persona lesionada,
11 y esa es probablemente la razón por la que es capaz de
12 caminar. Ella realmente, realmente, realmente no quería
13 que su vida cambiara por esto, y realmente luchó
14 para mejorar.
15 Pero hay algunos problemas, porque ha
16 llegado a ese punto de meseta en el que no está consiguiendo --
17 no va a ver ese día, los momentos milagrosos
18 se han ido.
19 Un problema que tiene que es bastante grave es
20 que se lesionó en el lóbulo temporal. Ella tiene
21 grandes problemas emocionales -- y los veremos como
22 problemas emocionales, pero no son sólo -- no se puede
23 ir a terapia y arreglar este problema. Ella sube
24 y baja muy, muy rápido, escalando a la ira.
25 Ella ha abusado verbalmente de todos en la
0035
1 oficina del tutor. Ella... es dulce, y en un
2 instante va en otra dirección.
20 Les dije durante el voir dire que hay un
21 montón de gastos involucrados en este caso, y sé que
22 suena como mucho dinero, y lo es. No
23 creamos cuánto cuesta mantener a alguien vivo
24 tras una colisión como ésta. Ella no eligió
25 ir al hospital.
0036
1 Sus gastos médicos anteriores son de 733.000 dólares, sólo
2 por sus gastos médicos anteriores. No va a
3 volver a trabajar. Se ha sugerido que tal vez
4 pueda ser voluntaria en algún lugar, tal vez pueda encontrar
5 periódicamente... algún tipo de empleo. Debido a su
6 volatilidad, trabajar con ...
16 Y no estoy haciendo las cuentas, pero habrá
17 personas aquí para hablar de eso. Y su pérdida salarial
18 para toda la vida, incluso con un salario muy bajo,
19 sólo tenía un GED, quería trabajar en el cuidado de niños,
20 sigue siendo alrededor de 2 millones de dólares.
21 La mayor cantidad de dinero es la que
22 necesita para cuidar a C. Tiene cuidadores.
23 Ella ha tenido cuidadores que fueron contratados mucho más que
24 son ahora.
25 Uno de los problemas que estamos viendo, del que hablará el
0037
1 tutor, es que no está teniendo
2 suficientes cuidados. Su casa se está volviendo
3 de aspecto inmanejable.
4 Tiene muy poca higiene, no come
5 bien, hasta el punto de que ha tenido que ir al
6 médico por problemas digestivos. Le has dicho que se coma una
7 manzana, come como si fuera un niño de 13 años.
8 Así que hay gastos de cuidado necesarios para
9 ella, y esos van a ser proyectados para usted.
10 Hay un gran rango, y ni siquiera voy a entrar en
11 por qué hay un rango, pero nuestro trabajo es asegurarnos
12 de que hay suficiente dinero, si se encuentra la responsabilidad, para
13 cuidar de ella.
14 Este es el último vídeo que te voy a mostrar
15 de C. Como te dije antes, si
16 pasas unos momentos con ella, la encontrarás encantadora, y
17 si está de buen humor, probablemente no sabrás que
18 hay un problema.
19 Intenta llevarla a cenar y hay un
20 piano tocando y gente hablando, y verás que ella
21 ni siquiera entra en el restaurante. No puede lidiar con ningún tipo
22 de sonidos múltiples o distracciones.
23 Simplemente no puede... no es capaz de
24 funcionar como una persona normal, aunque intente
25 parecerlo.
0038
1 Se le ha tomado declaración dos veces en
2 este caso, y la última vez - y una declaración es
3 cuando tu testimonio jurado es tomado por la otra parte,
4 en este caso la defensa, y su última declaración fue
5 tomada hace casi dos meses.
6 Y quiero que vean que ha hecho
7 progresos, no es como la persona que vimos en
8 mayo.
9 Me gustaría que se dieran cuenta... Les diré
10 que lo que tiene es que todavía tiene un pie caído, tiene
11 dificultad para caminar, el lado izquierdo de su cuerpo está
12 paralizado, tiene muy poco uso de uno de sus brazos.
13 Y esto es sólo para mostrarte que la lesión cerebral puede ser
14 vista aquí.
15 (Reproducción del video.)
16 MS. KOEHLER: Gracias