In Brief
An Orange County intersection crash, disputed liability, and a brain injury the defense said did not exist. The defense hired a neurosurgeon who examined our client for forty minutes and rejected every brain study his doctors had performed. We filed a motion under Florida’s Daubert statute to exclude or limit those opinions and argued it in court. The case resolved for $75,000 weeks before trial.
Hurt in a crash and told your injury doesn’t show up on a scan? See what we have recovered for other injured clients.
On This Page
In a recent Orange County case, our client was hurt when his car was struck in a signalized intersection while he was turning. The two drivers told different stories about the light, so liability was disputed from the start. Then the defense took a second position: that he had no real injury at all.
The Crash and the Injury
After the crash he had neck, shoulder and back pain and headaches. His doctors also tested for a brain injury. A brain MRI with diffusion tensor imaging, a sequence that maps the brain’s white matter, came back abnormal. The radiologist described scattered lesions on both sides of the brain in a coup and contrecoup pattern, the pattern of a brain moving inside the skull, and called the findings a common feature of post-traumatic axonal shearing injury. Computerized cognitive testing, heart rate variability testing and eye-tracking testing were each read as abnormal by the provider who performed them.
Why a Mild Brain Injury Hides on a Normal Scan
Many folks expect a brain injury to show up on the CT scan in the emergency room. A mild traumatic brain injury usually does not. Emergency imaging looks for bleeding and fractures, and the American Congress of Rehabilitation Medicine’s 2023 diagnostic criteria treat “concussion” and “mild TBI” as the same diagnosis when neuroimaging is normal.
So a defense argument built on “the ER scan was clean” proves very little. It points to the absence of findings that this injury does not produce in the first place. That gap became the center of our challenge.
The Defense Medical Exam
The defense hired a neurosurgeon to examine our client. Her own report records the examination lasting forty minutes. In that time she gave him two screening questionnaires, a Mini-Mental State Examination and a depression questionnaire, and did a neurologic exam. She testified that she is not a neuropsychologist and did no formal neuropsychological testing.
From that exam and a records review, her report offered ten opinions. Together they rejected the MRI, the cognitive testing, the heart rate variability testing and the eye-tracking testing, and concluded he had no injury, no aggravation of any earlier condition, and no restriction of any kind.
What Florida’s Daubert Standard Requires
Florida judges act as gatekeepers for expert testimony. Under section 90.702, Florida Statutes, an expert may give an opinion only if it is based on sufficient facts or data, it is the product of reliable principles and methods, and the expert applied those methods reliably to the facts of the case. That is the Daubert standard, named for the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
A credential does not satisfy it on its own. The Supreme Court said in General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997), that a court need not admit an opinion connected to the data only by the expert’s say-so.
The Four Problems We Put in Front of the Court
We deposed the defense neurosurgeon, then filed a motion to exclude or limit her opinions under section 90.702, with the certified deposition transcript and the medical literature attached, and argued it at a hearing. The motion laid out, opinion by opinion, where the data stopped and the conclusions kept going. Four of those problems give a sense of it.
The study she cited said the opposite
To dismiss the brain MRI, the report said diffusion tensor imaging is inconsistent in its results and cited a single study. That study’s own conclusion was that its results support using diffusion tensor imaging as a marker of white matter damage in mild TBI.
She ruled out the diagnosis by pointing to findings it doesn’t produce
She agreed that acute imaging after trauma shows bleeding and fractures. A mild TBI, by definition, shows neither.
Her own instruments failed her own test
She discounted our client’s testing because it lacked FDA approval, a pre-injury baseline and effort controls. The screening questionnaire she relied on has none of those, and the standard textbook on traumatic brain injury says a cognitive exam for these patients cannot be limited to that screen alone.
Her report stated a key fact two different ways
One opinion blamed his pain on smoking half a pack a day for twenty-five years. A page later, the same report recorded a pack and a half a day.
How It Ended
The case was set for a trial docket, with the pretrial conference weeks away. It resolved for $75,000 through acceptance of a proposal for settlement under section 768.79, Florida’s offer of judgment statute.
For our client, that meant a contested crash with a disputed brain injury ended in a recovery, without the risk of a jury deciding whose light it was.
What to Take From This
If you were hurt in a crash and an insurance company says your scans were normal, ask what kind of scans they mean. Ask whether anyone has looked at the white matter, whether your memory and attention were ever tested, and what the defense doctor actually did in the exam room. Those answers often decide whether a brain injury claim survives.
Our case results page lists other injury settlements, and if a defense medical exam is coming up, write down the start and end times. They can matter more than you would think.
Common Questions
Can a mild traumatic brain injury be missed on a CT scan?
Yes. Emergency CT scans look for bleeding and fractures. A mild TBI often shows neither, and current diagnostic criteria treat concussion and mild TBI as the same diagnosis when imaging is normal. Specialized imaging such as diffusion tensor imaging, and cognitive testing, may show what a CT cannot.
What is a Daubert motion in a Florida injury case?
It is a request asking the judge to exclude or limit an expert’s opinions because they do not meet section 90.702: sufficient facts or data, reliable principles and methods, and reliable application to the case. Either side can file one.
What is a defense medical exam?
In a Florida injury lawsuit, the defense can ask for an examination by a doctor it chooses, sometimes called a compulsory or independent medical exam. That doctor works for the defense, and the exam is often short, so what was and was not tested matters.
Further Reading
The sources behind this post, so you can read what I read.
- Section 90.702, Florida Statutes, testimony by experts
- Section 768.79, Florida Statutes, offer of judgment and demand for judgment
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
- General Electric Co. v. Joiner, 522 U.S. 136 (1997)
WRITTEN AND REVIEWED BY
Rory Safir, ACS-CHAL Forensic Lawyer-Scientist
He is the author of The Florida DUI Trial Manual, an NHTSA-qualified instructor in the standardized field sobriety exercises, faculty of the National College for DUI Defense, and a former Assistant Public Defender in the Thirteenth Judicial Circuit.
This post is general information about the law, not legal advice, and it does not create an attorney-client relationship. Identifying details have been left out to protect the client’s privacy, and the case was handled with co-counsel. Past results do not guarantee a similar outcome, and every case is different. The law discussed is sections 90.702 and 768.79 of the Florida Statutes, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and General Electric Co. v. Joiner, 522 U.S. 136 (1997), as of November 11, 2026.
