Mike Stolte

Introduction

My name is Mike Stolte. I have lived at the same address in St. Louis Park for 54 years.

Eighteen years ago my son suffered a traumatic brain injury at age 35, during the prime earning years of his life. Since the auto accident he has been unable to return to work and has had to live in my house. Because my national pension consulting business required considerable travel, I had to phase out of that practice to provide consistent support for my son. He and I have endured major income losses and substantial debt since his accident.

My years of exposure to TBI survivors and their advocates, directly and at conferences, leave me concerned that many brain injury survivors in Minnesota, and thousands of others nationally, may have been inadequately served under the existing personal injury legal system.

During the years since my son became disabled, I have been working on two major legal issues pertaining to personal injury settlements that involve survivors of traumatic brain injury (TBI). My primary concern is the woefully inadequate financial settlements with at-fault defendants. These established settlements create the conditions for my secondary concern, the predatory practices of organizations that purchase structured settlements, most often for less than half their actual values. Although the two issues are related, this appeal is focused upon my primary concern.

Our Story

My son’s case serves as a tragic example. He was returning to his FEMA assignment after the hurricane Katrina disaster. While driving at night on an interstate highway he crashed into a large wheel assembly that had detached from a newly acquired, loaded 18-wheel semitrailer. It was being operated illegally. The owner had not complied with Federal Motor Carrier Safety Regulations (FMCSR), which require a rigorous safety inspection before such vehicles can be put into use. The new SUV my son had purchased 10 days earlier was a total loss and the impact was violent enough to break the seat belt buckle. With his body no longer protected it struck various parts of the car’s interior. Besides skeletal injuries he sustained a traumatic brain injury. After hospital staff cleared him to travel, he flew back to Minnesota hours later.

The insurance company’s defense attorney never disputed total liability of the truck owner. The law firm who represented my son advertises themselves as specialists in litigating trucking accident cases and the resulting injuries, including brain injuries. But the firm refused to secure physical crash evidence, investigate the SUV’s broken seatbelt, or otherwise professionally document proof of my son’s injuries.

His Minneapolis attorneys would meet with him only five times during the three years leading up to the scheduled trial date, insisting that the case was very strong and that they knew everything they needed for trial. Yet they refused my son’s numerous requests for guidance about trial preparation or how they calculated his financial damages. This left him unable to make informed decisions about the adequacy of proposed settlement amounts.

TBI impairments include executive function deficits, speech and language pathology, processing speed, hypersomnia due to brainstem injury, etc. My son’s hypersomnia medication took at least two hours to reach full effect. Only then was he able to engage in serious consequential decision-making.

The attorneys clearly knew, from a mediation meeting, that my son’s TBI injury had left him incapable of thinking clearly during morning hours. But rather than accommodating this handicap, the attorneys took advantage of it.

During an afternoon a couple of weeks before the trial date, without notice to either my son or me, one of the attorneys representing my son called him while he was at Courage Center for therapy. The attorney surprisingly demanded that my son accept a settlement, declaring that otherwise he might get nothing. Supposedly, a judge could decide that the defendant was not liable.

At that time of day, my son had the full benefit of his hypersomnia medication and did the best he could to request clarifications because the reasons for settling did not make sense to him. He refused to settle. The attorney promised to have one of the other attorneys provide more information that same day. He did not. None of the attorneys called again that day.

But early the next morning the same attorney woke my son with a phone call and resumed his pressure to settle, insisting again that my son immediately accept the settlement offer before a judge might make a ruling harmful to his case. With no benefit from his medication or any clarifying information, my son was not functional and capitulated under intense pressure, without my knowledge of the call.

A few hours later that morning my son was able to inform me of the call and vaguely describe what he believed he had agreed to. I promptly called one of the attorneys to confirm what my son believed had transpired. I objected to their method of obtaining my son’s so-called “acceptance” of the settlement, then expressed my disagreement in writing via email. The attorney dismissed my objections and refused to reverse the decision because my son had accepted the settlement and his case was closed.

The Underlying Problem

A 2021 StarTribune series documented numerous instances of cognitively impaired recipients being enticed to sell years of long-term support payments for one-time lump sums that averaged only 40% of their values. This research inspired the 2022 legislature to pass a new law that regulates such transactions.

In my opinion, the increased awareness of cognitive vulnerabilities among TBI survivors opens the door for the legislature to take a step back and address all brain injury settlements, whether structured over time or not. Financial recoveries are left to personal injury attorneys who rarely take cases to jury trials. It seems that very few adequately prepare for trial. Instead, too many plaintiffs’ attorneys just negotiate with defense counsel to arrive at settlements that are mutually acceptable and convenient – for their law firms. Their TBI clients are almost never able to – or allowed to – participate in those negotiations to be sure significant losses are not ignored.

Other brain injury survivors have brought similar instances of attorney intimidation to my attention. Their life-changing physical and cognitive injuries were followed by life-changing financial injuries, often imposed by their own attorneys.

Solution

My son’s settlement amount was approximately 5% of the case value, and almost half of that was deducted for the attorneys and expenses.

The 2022 legislative session mandated procedural changes for purchasing existing structured settlements. In my opinion, the 2024 legislature needs to address practices that create settlements before they are established. These far more numerous single-payment settlements can be even more detrimental to TBI plaintiffs, and are invisible to the public.

TBI survivors are rarely given adequate and timely information to make truly informed decisions to settle their cases. Minnesota law should require the involvement of independent advocates for all brain injured plaintiffs before their settlements are finalized, just as the current law requires this assistance before structured settlement purchases are approved. These third-party advocates would be required to verify that the claim for damages adequately includes all components applicable to the TBI survivor. The proposed settlement would then be justifiably approved.

Budget considerations should not be an obstacle. Any expense for these professional approvals would likely be more than offset by reductions in the state’s cost of supporting unemployable, destitute citizens whose inadequate settlements are exhausted.

I thank you for your consideration.