Traumatic Brain Injury Lawsuit in California: The Deadlines and the Process

A traumatic brain injury lawsuit is a civil case filed against whoever caused the injury. Most TBI claims resolve with an insurer and never become lawsuits — but these claims are filed more often than other injury claims, and for a specific reason: in most injury cases the argument is about how bad the injury is, while in a TBI case it is frequently about whether the injury exists at all. That dispute is hard to resolve across a negotiating table, so it ends up in front of a court.

Litigating one also differs from an ordinary injury case in ways worth knowing before you start. The defence gets access to your life before the injury, a court-ordered examination is likely, and the timeline is longer than most people expect.

Key Points

• Filing does not end negotiation. Most filed cases still resolve before trial.
• Causation, not liability, is usually the contested element in a TBI case.
• Discovery reaches backwards into your life before the injury, because the case is a before-and-after comparison.
• A defence mental examination requires leave of court and good cause, and the order must specify its scope — it is not something the defence simply schedules.
• Expert evidence drives both the outcome and the case costs.
• These cases take longer than other injury claims, largely because the medical picture takes longer to stabilise.

Why TBI Claims End Up Filed

The ordinary path after an injury is a claim: treatment, documentation, a demand, negotiation. A lawsuit gets filed when that path stalls, and in TBI cases it stalls in a particular place.

Liability is often not seriously disputed — someone ran a light, someone failed to maintain a floor. What is disputed is whether the collision or fall caused the cognitive and emotional changes being claimed, and whether those changes are as significant as described. Standard imaging frequently shows nothing. The insurer offers an alternative explanation: stress, sleep, ageing, a pre-existing condition, ordinary life.

That is not a gap that closes through negotiation, because it is a dispute about evidence rather than about numbers. Our page on whether you can sue for a brain injury covers who can be named and which deadline applies, which differ depending on how the injury happened.

What Has to Be Proven

Duty, breach, causation, and damages — the same four elements as any negligence claim. The difference is where the fight happens. In a TBI case, causation and damages absorb almost all of the effort, and both are established through medical evidence and evidence of changed function rather than through the account of the incident.

What Discovery Actually Looks Like

This is the part nobody explains before someone files, and it is the part clients find hardest.

Because a brain injury case is a comparison between how someone was before and how they are now, the defence is entitled to examine the “before.” That means discovery reaches into material most people never expect to produce:

• Prior medical records, including records unrelated to the head — earlier injuries, mental health treatment, substance use history.
• Employment and academic records, because a claim that cognitive function declined invites scrutiny of what it was before.
• Depositions of people who know you — a spouse, colleagues, friends — who will be asked both what changed and what was already true.
• Your own deposition, which in a case involving memory and concentration difficulties is genuinely demanding, and which the defence will use to test whether the symptoms described match the person answering questions.

None of this is improper. It is what the other side is allowed to do, and the same before-and-after evidence that helps a claim is what makes the “before” discoverable. It is better to know that at the outset than to discover it in month eight.

The defence examination

The defence will usually want its own expert to examine the plaintiff. In a TBI case that generally means neuropsychological testing, which can run for many hours across a day or more.

California puts conditions on this. Under Code of Civil Procedure section 2032.310, a party seeking a mental examination must obtain leave of court, and the motion has to specify the time, place, manner, conditions, scope, and nature of the examination along with who will perform it. Under section 2032.320, the court grants the motion only for good cause shown, and an order granting one must specify the examiner, the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.

The practical significance: the scope and the specific tests are set by a court order, not left open. What the examination covers is negotiable and, where necessary, litigable.

The Experts

TBI cases are expert-driven on both sides. Depending on the claim, that can include treating physicians and specialists, a neuropsychologist, a life care planner where future care is in issue, a vocational expert where earning capacity is in issue, an economist to project future loss, and sometimes an accident reconstruction expert on the mechanism of injury.

Two consequences. Expert evidence is usually what decides a contested TBI case. And experts are the largest single driver of case costs, which is why the fee agreement’s treatment of costs matters more in this category than in most.

Why These Take Longer

There is no dependable average and any duration quoted without knowing the facts is a guess. What is predictable is the direction: TBI cases run longer than other injury claims, for identifiable reasons.

• The medical picture takes longer to stabilise. A claim is difficult to value before it does, and cognitive recovery is not measured in weeks.
• Causation is contested, which means expert discovery on both sides rather than a documents-and-demand exchange.
• The defence examination has to be noticed, agreed or litigated, scheduled, and reported on.
• More parties and policies in many of these cases, each with its own counsel and calendar.

What It Costs

We handle these matters on a contingency-fee basis: there is no upfront attorney’s fee, and attorney’s fees are owed only if we recover compensation for you.

Case costs are a separate category from attorney’s fees, and in a TBI case they are substantial — expert reports, depositions, records, and court fees. How costs are handled, and what happens to them if there is no recovery, is set out in the written fee agreement, and it is the part of that agreement worth reading closely in this type of case. We go through it with you before anything is signed.

Do Not Settle Before the Picture Is Clear

Insurers sometimes offer early in these cases, before the extent of a brain injury is understood. A settlement release ends the claim permanently, including for consequences nobody knew about at signing — California releases routinely include an express waiver of the statutory protection that would otherwise preserve unknown claims.

In an injury category where the trajectory is uncertain for months, that is the most expensive mistake available. Our page on car accident settlements covers what a release does, and TBI settlements covers what a fair offer is measured against — which is not a published range.

Where to Read Next

• Can you sue for a brain injury? — who can be named, and the four different deadlines depending on how the injury happened.
• TBI settlements — why published averages contradict each other, and what a fair offer is actually measured against.
• Car accident head injuries — documentation, delayed symptoms, and what happens when capacity is affected.
• Economic damages and pain and suffering — the two damages categories and how each is established.
• Car accident lawsuits — the general litigation process, which applies here too.

Questions about treatment, rehabilitation, prognosis, or patient support services belong with treating clinicians and patient organisations rather than with a law firm, and there are better sources for them than this page.

Brain Injury Litigation on the Peninsula

Our office at 15 North Ellsworth Avenue, Suite 105, San Mateo, CA 94401 handles injury claims across San Mateo County, and civil matters for this area are generally heard in the San Mateo County Superior Court. These injuries arise in collisions involving cars, motorcycles, bicycles, and pedestrians, in falls, and from defective products. Where a brain injury is fatal, a wrongful death claim follows its own rules. More about the office is on our San Mateo page.

How Vaksman Khalfin Can Help

Our brain injury practice handles these claims from the medical documentation through to resolution: making sure the right assessments happen and reach the record, preparing clients and their families for what discovery will involve, negotiating the scope of a defence examination rather than accepting whatever is proposed, retaining the experts a contested case needs, and litigating where a claim cannot be resolved.

The practice is led by Alan D. Khalfin, admitted in California. Initial consultations are free.

To speak with a California personal injury attorney, call 650-250-0705 or schedule a free consultation. Further explanations are collected in our California personal injury guides.

Reviewed by Alan D. Khalfin, Partner and Managing Attorney, Vaksman Khalfin, PC (admitted in California). Last reviewed: 09/08/2026