Recently I settled an Illinois traumatic brain injury lawsuit immediately before trial for $800,000. This case was complicated by the fact that the 19 year old male passenger in a car struck by a truck pulling off a stop sign actually signed a release settling his claim with the claims adjustor for $3,250 a few weeks after the accident. About nine months later the young man’s behavior changed radically and he was ultimately admitted to a mental health center with a diagnosis of major depression, and he has and will remain in an inpatient facility for the rest of his life. Suit was filed shortly after his family suspected that he may have suffered a brain injury in the accident, but that the brain injury did not manifest itself until several months following the accident. Defendants filed motion to dismiss on the basis of the release, which was initially granted, but case was transferred to another judge who ruled that a factual issue remained whether there was a mutual mistake of fact.
The main issue in this case was whether there was a mutual mistake of fact at the time the release was signed. I deposed the claims adjustor who testified that she did not contemplate a brain injury at the time of settlement and that her analysis only took into account that the plaintiff had twelve stitches to his head in the accident. The plaintiff also testified that he only felt he had a cut to his head in the accident at the time he signed the release. Four years after the accident a brain injury specialist diagnosed him as having a traumatic brain injury. He testified convincingly that plaintiff was not suffering from depression or schizophrenia, but rather had sustained a traumatic brain injury in the auto accident.
A few months before trial was scheduled to begin I filed a motion for partial summary judgment alleging that there was a mutual mistake of fact that voided the release. In Scherer v. Ravenswood Hospital, 70 Ill. App. 3d 939, 947, 388 N.E. 2d 1268, 1274 (1979) the court stated: “Where…the evidence reveals an injury involving such pervasive damage as permanent mental retardation, resulting from cerebral dysfunction; the settlement is in an amount significantly disparate to the seriousness of the injury; and the injury is an unanticipated, extraordinary complication, then a mutual mistake of fact has been clearly and convincingly proven which, if allowed to stand, will result in an unconscionable hardship to plaintiff.”