Cross-Examination of the Defendant's Neuropsychologist in a Mild Traumatic Brain Injury Case

TRIAL DIPLOMACY JOURNAL

Vol. 18, 137-144 (1995)

Bruce H. Stern

Princeton, New Jersey

Recent changes in strategy have led to retention by the defense of neuropsychologists, rather than psychiatrists or neurologists, in mild trau-matic brain injury cases. Effective cross-examination of the defense neuropsychologist in these cases can both weaken the defendant's position and provide evidence to bolster the plaintiffs case.

In defending mild traumatic brain injury cases, the defense has, in the past, used the expert services of a psychiatrist or a neurologist rather than a neuropsychologist. This strategy was based on the assumption that a jury more readily accepted the testimony of a medical physician over that of a neuropsychologist. This strategy also permitted the defense to malign the plaintiff's expert neuropsychologist, typically the only expert who could objectively document the plaintiff's injuries. Indeed, because neurodiagnostic studies as well as neurologic examination are usually normal in the mild traumatic brain injury patient, neuropsychological testing often provides the only objective proof of injury.

DEFENSE STRATEGY CHANGES

Recently, the defense has questioned its strategy in these cases. Psychiatrists and neurologists rarely treat patients with mild traumatic brain injury. Rather, these patients usually are referred to neuropsychologists for treatment. Psychiatrists and neurologists are unfamiliar with the neuropsychological tests administered and are not qualified to render an opinion regarding the specific findings on those tests. Consequently, the defense now retains its own neuropsychologist to either test or interpret the plaintiff's past raw test data. Thorough cross-examination of the defense neu-ropsychologist not only weakens the defendant's position, but it can also provide evidence to aid the plaintiff's case.

Typically, the opinions of the defense neuropsychologist will follow one of three methods of attack. First is the traditional defense opinion that the plaintiff is not injured, that the neuropsychological testing is normal, that the opinions of the plaintiff's treating and examining physicians are wrong, and that the plaintiff is malingering. The second method of attack acknowledges that the plaintiff is suffering from some disability but asserts that the disability is emotional as opposed to organic and may or may not have resulted from the litigated trauma. The third and least likely method attacks the ability of the clinician, either the neuropsychologist or a psychiatrist, to accu-rately diagnose traumatic brain injury. This school of thought is not widely used, since it requires the defense neuropsychologist to essentially invalidate forensic neuropsychology. This defense approach does exist, however, and the plaintiff's attorney must be aware of it. Cross-examination will obviously depend upon the position taken by the defense neuropsychologist.

CROSS-EXAMINATION OBJECTIVES

This article will examine methods to effectively cross-examine the defense neuropsychologist. It is not the intent of this article to discuss broadly the theories of cross-examination. That is left to Wellman,2 Younger,3 and other commentators.4 Cross-examination of the neuropsychologist should have the traditional objectives of cross--examination: to obtain helpful information, to impeach, and to limit an expert's testimony.

A well-prepared advocate can enlist strong jury support as he or she meticulously exposes and discredits the direct testimony of one who has been offered as having special knowledge and experience, which is, in fact, either lacking or is being used to obscure the truth.5

A thorough cross-examination of the defendant's neuropsychologist can bolster the plaintiff's case and at the same time diffuse and dismiss the defense. To effectively cross-examine the defense neuropsychologist, the plaintiff's trial attorney must have a clear and intimate understanding of the complexities of trying a mild traumatic brain injury case. These cases are highly complex and well over the head of the average juror. In many cases, the jury must be convinced that the plaintiff suffered a traumatic brain injury, even though the plaintiff never struck his or her head in the collision, never lost consciousness, and has returned to the everyday schedule that existed prior to the traumatic event. Further challenging plaintiff's counsel is the complexity of the testimony of plaintiff's treating or examining neuropsychologist. The neuropsychological tests used by the neuropsychologist often appear absurd and seem unlikely, to the jury, to detect brain injury or dysfunction. It is with all of this in mind that the cross-examination of the defense neuropsychologist begins.

PRETRIAL PREPARATION

Cross-examination of the defendant's neuropsychologist begins long before the defense completes its direct examination. Effective cross-examination, like all aspects of trial practice, begins with pretrial preparation. It is essential that before the trial attorney steps into the courtroom, he or she learn all there is to know about the defendant's neuropsychologist. Most experts who testify frequently leave some "footprint" that can be taken advantage of in the future. Typically, in past testimony an expert has said something on the record that can effectively be used to attack his or her credibility and the opinions presented on direct examination.

When the defense names its expert, plaintiff's counsel, after receiving the expert's report, must obtain a copy of the expert's curriculum vitae.6 Assuming that the expert has published articles in the past, those articles should be obtained, read, and digested. Information helpful to the plaintiff often will be gleaned from the doctor's past writings. A search for past deposition or trial transcripts should then be conducted. Most state trial organizations, as well as ATLA's Exchange,7 keep transcript banks on experts. Furthermore, classified ads placed in state trial magazines often result in other attorneys forwarding past transcripts containing the expert's testimony.

Many defense neuropsychologists also treat patients who have sustained neuropsychological injury. If the expert has testified on behalf of a plaintiff, it is critically important to obtain the neuropsychological reports and transcripts. In such cases, the interpretation given on direct examination by the defense neuropsychologist may be in direct contradiction to the testimony given in reports written on behalf of injured victims and plaintiffs. Counsel should also speak with other experts in the vicinity where the defense neuropsychologist practices. This might uncover information helpful to the plaintiff.

For far too long, lawyers have failed to take the time to learn about their adversaries' experts. Because much time is spent in the office or at depositions, trial lawyers fail to spend time in the courthouse observing their adversaries in action. In most areas, insurance carriers have a list of experts who appear at trial over and over again. To prepare for trial, plaintiff's counsel should ascertain when these experts will testify and actually observe the testimony. There is no better way to prepare for cross-examination of a defendant's neuropsychologist, or any expert for that matter, than by watching that expert testify in court.

OBTAINING CONCESSIONS

The first step in cross-examining the defense neuropsychologist is to have the doctor bolster and support the testimony of the plaintiff's neuropsychologist. Indeed, "[e]very witness called to the stand has a great potential for providing at least some helpful information to the cross--examiner's case."8 This is especially true with the neuropsychologist.

The beginning of the cross-examination should replicate the direct examination of the plaintiff's neuropsychologist.9 The examination should initially attempt to obtain a concession from the defense neuropsychologist that one in his or her profession is capable of diagnosing brain injury and offering a valid opinion as to the cause of the brain injury. In obtaining this concession, it is advisable to question the neuropsychologist in the abstract as opposed to relating the questioning specifically to your client. The defense neuropsychologist has been retained to proffer an opinion that your client has not suffered a traumatic brain injury, or at the very least, that any injury was tem-porary or unrelated to the accident. If this area of cross-examination relates directly to the plaintiff, the defense neuropsychologist will usually be unwilling to make any concessions. Rather, if the discussion is in the abstract, using general medical and neuropsychological principles, the defense neuropsychologist will more likely be willing to make major concessions.

Attention is also called to the distinction between matters of scientific fact and mere matters of opinion. For example: medical experts may be called to establish certain medical facts which are not mere matters of opinion. On such facts the experts could hardly disagree; but in the province of mere opinion it is well known that the experts differ so widely among themselves that but little credit is given to mere expert opinion as such.10

The following concessions can and should be obtained rather easily:

1. One can suffer a traumatic brain injury without striking one's head.

2. One can suffer traumatic brain injury without the loss of consciousness.

3. Neuropsychological testing is valid to diagnose traumatic brain injury.

4. A neuropsychologist is qualified to give an expert opinion as to a diagnosis of traumatic brain injury and the cause for that diagnosis.

5. Although the traumatic brain injury may be classified as mild, the ramifications of that injury may be severe.

6. Mild traumatic brain injury can be permanent.

7. EEGs, CT scans, and MRIs are not sophisticated enough to diagnose or detect abnor-malities in the mildly traumatic brain injured patient.

8. The mental status examinations performed by neurologists and psychiatrists are not sophisticated enough to detect the subtle defects of a mild TBI patient.

Plaintiff's counsel must be familiar with the literature in the field of neuropsychology and traumatic brain injury.11 Most neuropsychologists will acknowledge the authority of the literature in this field, and that literature can be used to support the concessions obtained. When the defense neuropsychologist refuses to concede these generally well-recognized principles, recitation to the relevant literature can often bring the defense neuropsychologist back into the fold or at the very least discredit the testimony.

An effective cross-examination of the plaintiff's neuropsychologist may place in doubt the validity of the neuropsychological testing used by that expert. The standard and validly accepted neuropsychological tests, on their face, to an average lay person or juror, hardly appear to be the material upon which a traumatic brain injury can be diagnosed. The neuropsychological tests often seem like children's games (e.g., Trails Making Parts A and B) and often sound like magic tricks (e.g., Wisconsin Card Sorting). If defense counsel has attacked these tests, then the defense neuropsychologist should be made to acknowledge their validity. The cross-examination on this topic should be detailed, with the standard neuropsychological tests blown up as exhibits and fully explained to the jury by the defense neuropsychologist. The neuropsychologist should be made to explain to the jury how these tests were developed, their validity, how they were validated, and what injuries or damage they show. Because the neuropsychologist's entire field of expertise is based on these tests, it is difficult if not impossible to be hurt during this phase of cross-examination.

At the conclusion of the concession portion of cross-examination, counsel has already made great strides in the case. The defense neuropsychologist has now supported the testimony of all of the plaintiff's experts regarding the validity and sophistication of neuropsychological testing (i.e., it is more sophisticated than normal, traditional neu-rodiagnostic testing) as well as strengthened other aspects of the case.

Having concluded this portion of the cross-examination, plaintiff's counsel should have achieved the goals of validating the field of neuropsychology, validating the neuropsychological testing, and establishing that a person can sustain a traumatic brain injury under circumstances similar to the plaintiff's trauma.

DEFENSE EXPERT VERSUS PLAINTIFF'S EXPERT

Cross-examination should next move to discredit the neuropsychologist's opinions in this particular case. At this point, the only difference in the testimony of the plaintiff's neuropsychologist and the defendant's neuropsychologist is the interpretation of the neuropsychological testing and medical reports in the case.

To attack the defense neuropsychologist's interpretation of any specific neuropsychology test, it is imperative that counsel obtain a copy of the full raw data of the defendant expert's testing, as well as the raw data from any other treating neuropsychologist. Raw data includes the patient's written answers to the neuropsychological testing as well as the neuropsychologist's written scoring of those answers. This data must be reviewed with a neuropsychologist to ensure that the defense neuropsychologist has correctly scored and inter-preted the data:

If the potential financial sums or human costs are substantial, . . . the attorney for the party that is at risk (defendant or plaintiff) not infrequently will spend tens (or hundreds) of hours or more, often in consultation with one or more psychologists, either in that community or in a faraway state, in a quest to develop a strategy to attack the bases of the examining psychologist's opin-ions and thus damage the credibility of the psychologist-consultant whose psychological assessment results and conclusions appear so damaging to his or her client.l2

Attacking the Expert's Qualifications

Counsel must first attack the defense neuropsychologist's qualifications:

In the hands of a good clinician, the results of an examination of intelligence or personality, correlated with information from the person's history, are as useful as analogous information would be in the hands of a good surgeon, internist, accountant, or plumber. In the hands of a fool, whether psychologist, physician, physicist, elementary school teacher, college admissions officer, sur-geon, or plumber, such data are tools for potential harm. 13

One must be careful, however, in undermining the neuropsychologist's qualifications not to reverse the positive aspects of the cross-examination. Counsel's goal is to have the jury reject only the defense neuropsychologist's opinions as to the plaintiff's injuries, not the legitimacy of neuropsy-chology itself.

Currently, two neuropsychological organizations grant board certification in the field of neuropsychology: the American Board of Professional Neuropsychology and the American Board of Clinical Neuropsychology. These organizations, however, are relatively new, and many excellent and highly qualified neuropsychologists are not yet board certified. It is also important to note that there is no specific licensure for the field of neuropsychology, only for psychology. Thus, any psychologist can hold himself or herself out as a neuropsychologist, rendering neuropsychological treatment. This all being so, the attack on the defense expert's qualifications must focus on the doctor's training, specifically in the field of neuropsychology, and the amount of treatment he or she has provided to traumatic brain injury patients. It will become apparent very quickly whether this expert has the qualifications to hold himself or herself out as a neuropsychologist. As Robert Sbordone, Ph.D., has lectured, "There are psychologists, neuropsychologists and then real neuropsychologists."l4

Reviewing Raw Data and Testing

In reviewing any two neuropsychologists' raw data and testing, it becomes very apparent that no two neuropsychologists necessarily will administer the same tests. Some tests are not proper and were not designed to detect traumatic brain injury. Furthermore, many of the standardized, well-accepted neuropsychological tests are inca-pable of and insensitive in detecting subtle mild traumatic brain injury. It is very difficult, however, on cross-examination, to obtain concessions from the defense neuropsychologist that the tests used were not appropriate. Consequently, plain-tiff's counsel must be well armed with accepted medical literature to attack the reliability of any of the tests used by the defense neuropsychologist. Such an attack, of course, must not come at the expense of casting any doubt upon the plaintiff's neuropsychological testing.

The defense neuropsychologist, or any expert for that matter, rarely will concede during testimony that the opinions rendered on direct examination were incorrect. This is especially true when the dispute surrounds an expert'ss interpretation of test data, which, like any medical opinion, is often based in some part on subjectivity. Thus, it is only by showing that the neuropsychologist misscored, ignored, or was not given important data that the jury's confidence in that neuropsychologist's opinions will be greatly diminished.

Experience has led me to believe that a physician should rarely be cross-examined on his own specialty, unless the importance of the case has warranted so close a study by the counsel of the particular subject under discussion as to justify the experiment; and then only when the lawyer's research of the medical authorities, which he should have with him in court, convinces him that he can expose the doctor's erroneous conclusions, not only to himself, but to a jury who will not readily comprehend the abstract theories of the science upon which even the medical profes-sion itself is divided. l5

Very few defense neuropsychologists ever do more than review various medical records and test the plaintiff. They rarely consult with any of the other treating physicians and rarely speak with the plaintiff's spouse, friends, coworkers, employer, or other lay persons who would have relevant information concerning the plaintiff. It is important that the plaintiff's neuropsychologist have done all this.l6 This difference between the quality of information will aid in discrediting the defense neuropsychologist. All experts will agree that the more information with which they are provided, the stronger their opinions.

Using the APA Code of Conduct

It must be understood that many well-qualified and recognized authorities in the field of neuropsychology do not administer the neuropsychological tests themselves,l7 even though important data can be obtained by the neuropsychologist in observing the test taker. Rather, trained technicians adminis-ter the tests, making notations of their observations of the test taker. Murial Lesak, Ph.D., describes the different schools of thought on this issue: "Practitioners using this approach may have a technician examine the patient so that, except for an introductory or closing interview, their data base is exclusively in numerical, often computer-process, form."l8

Because of the belief that the neuropsychologist does not have to administer the neuropsychological tests, many neuropsychologists will conduct a "paper" review of the plaintiff's raw testing data. The neuropsychologist will review the test data and other medical records available and render a neuropsychological opinion. Where this occurs, effective cross-examination is possible utilizing the Ethical Principles of Psychologists and Code of Conduct of the American Psychological Association, since most neuropsychologists are members of the APA.l9 APA Standard 7.02 states:

APA 7.02 Forensic Assessments (a) Psychologists' forensic assessments, recommendations, and reports are based on information and techniques (including personal interviews of the individual, when appropriate) sufficient to provide appro-priate substantiation for their findings; (b) Except as noted in (c), below, psychologists provide written or oral forensic reports or testimony of the psychological characteristics of an individual only after they have conducted an examination of the individual adequate to support their statements or conclusions; (c) When, despite reasonable efforts, such an examination is not feasible, psychologists clarify the impact of their limited information on the reliability and validity of the reports and testimony and they appropriately limit the nature and extent of their conclusions or recommendations (emphasis added).

Where the defense neuropsychologist has conducted a paper review and failed to acknowledge the limitations of not having examined or interviewed the plaintiff, the APA Canons can be used to show that the defense neuropsychologist has violated the APA Code of Conduct.

State Statutes

Other excellent cross-examination material can be found in applicable state statutes.20 Many states have enacted statutory definitions of traumatic brain injury.21 Since many of these statutes have been enacted to aid traumatic brain injury survivors, they tend to be extremely supportive of traumatic brain injury survivors and include excellent pro-survivor definitions.

Reviewing the Expert's Medical Records Summary

Most neuropsychological test reports will include a review of past medical records. Experts often will selectively choose relevant information, indiscriminately omitting other pertinent and relevant facts. Because of this, the defense neuropsychological summary of the medical records must be compared with the actual medical records. When relevant records have simply been omitted in their entirety, this fact should be brought out on cross-examination.

WHEN THE DEFENSE EXPERT'S FINDINGS CAN BOLSTER YOUR CASE

The defendant's neuropsychologist, while finding no evidence of traumatic brain injury, nevertheless might make a significant diagnosis that is helpful to the plaintiff. Rather than impeach the defendant's neuropsychologist, a different technique is required.

There is yet a third technique of cross-examination, one that few works on the subject recognize separately. It is a cross-examination designed neither to impeach nor to hitchhike but rather to demonstrate that the witness's testimony does not matter. Put another way, it is an examination designed to demonstrate that the witness's testimony and the cross-examiner's theme and theory of the case can live together in the same lawsuit. In this way the examiner side steps the testimony by demonstrating that the witness is not on a collision course with the cross-examiner's central theme of the case.22

Should the defense neuropsychologist diagnose post traumatic stress disorder or another emotional or psychological injury, a more subtle form of cross-examination is needed. Rather than engage in a cross-examination that attempts to discredit the expert, in an effort to show that the proper diagnosis is traumatic brain injury as opposed to post traumatic stress disorder, counsel should use this testimony to reinforce the plaintiff's case. Regardless of the diagnosis, if the defendant's neuropsychologist is willing to concede that as a result of this specific trauma which is the subject matter of the litigation, the plaintiff suffered an injury, be it organic or psychological, then there is no need to discredit and to force the jury to make a determination between traumatic brain injury and some other trauma-inducing symptom. Instead, counsel should argue to the jury that as a result of the trauma, plaintiff was injured and is still permanently disabled. Where a different traumatically induced diagnosis is made, counsel should force the defense neuropsychologist to concede that the trauma produced a recognized injury, albeit psychological, and that the psychological disorder has resulted in a functional disability. On summation, concede that medical experts can differ, but that in this case, both plaintiff's expert and defendant's expert agree that as a result of this specific trauma, the plaintiff sustained an injury that resulted in functional disability.

CONFRONTING THE "METHOD SKEPTICS"

In 1988, David Faust, M.D., and Jay Ziskin, Ph.D., J.D., in "a self-acknowledged one-sided evaluation of neurocognitive assessment method and applications,"23 published their three-volume text, Coping with Psychiatric and Psychological Testimony.24 This work was followed by a Science article titled "The Expert Witness in Psychology and Psychiatry."25 The school of thought founded by these two authors, known as method skeptics, discredits totally the competence of psy-chologists or psychiatrists to offer a reliable, much less valid, psychiatric or psychological dif-ferential diagnosis.

We began by asking whether expert witnesses achieve reasonable certainty and aid the trier of fact. The scientific evidence clearly suggests that clinicians fail to satisfy either legal standard for expertise. Clinicians frequently cannot agree on psychiatric diagnoses of current states, much less provide trustworthy answers to less familiar and more difficult forensic questions, which often demand projections backward or forward in time. Considerable research also shows that clinicians' judgmental accuracy does not surpass that of laypersons.26

This school of thought has come under considerable attack. In direct response, Joseph D. Matarazzo, in his 1990 presidential address to the American Psychological Association, directly confronted the opinions of Faust and Ziskin.27 He took them to task for failing to include in their Science article a disclaimer that did appear in their three-volume text:

The book consists almost entirely of literature which negates the expertise of mental health professionals. There is literature not contained in this book that is supportive of forensic psychiatry and psychology. . . . The reason we exclude supportive literature is not so that readers will think it does not exist. As noted, it may or does exist, however, although perhaps of academic interest, we view such supportive evidence as largely irrelevant from a legal context.28

In response to their failure to include this disclaimer, Matarazzo commented:

In the three previous editions of this book, which he authored alone, Ziskin included in the preface to each a comparably candid and commendable admission regarding the lack of balance, even-handedness, and scholarly thoroughness of his reviews of the literature. In a glaring omission from the usual canons of scholarly writing, no such admission regarding the deliberate one-sidedness of the literature review was included by Faust and Ziskin in the article in Science.29

Furthermore, Matarazzo criticizes Faust and Ziskin's attack on the validity of psychological assessments.

While it is not possible to fully delineate in greater detail in this article the Matarazzo/Faust-Ziskin debate, it is important that plaintiff's trial counsel be aware, when confronted with the Faust-Ziskin attack, that there is substantial literature to attack and discredit this school of thought.30 However, it should not be quickly dismissed as the typical defense opinions seen in so many other types of cases. It is a defense strategy that comes to court supported by various research studies. When faced with this type of attack, it is essential that the plaintiffs trial attorney be well prepared. At the very least, such a defense expert must acknowledge that the Faust-Ziskin school is not generally accepted by the neuropsychological community and that there is significant disagreement within it. Furthermore, the opinion of Dr. Matarazzo, discussed above, should effectively neutralize this testimony in court.31

In summary, there are very few well-qualified neuropsychologists practicing today. Although the field is certainly expanding, many, unfortunately, are attempting to hold themselves out as experts in a field in which they clearly lack sufficient expertise. Most well-qualified neuropsychologists treat patients who have suffered mild traumatic brain injury. These experts, even when retained by the defense, will support and make the general concessions set forth earlier in this article. Then the case will be reduced to a baffle of the defense expert's interpretation versus the plaintiff's expert's opinions. Even then, concessions about the test findings can be obtained, and an effective cross-examination can be conducted.

ENDNOTES

1 J.S. Taylor, Neurolaw: The Challenges of Subtle Brain Injury, 1 Pers. Inj. L. & Med. Rev. 314 (1994).

2 F.L. Wellman, The Art of Cross Examination (1936).

3 I. Younger, Credibility and Cross-Examination (audio/videotapes and text, Professional Education Group, Inc.)

4 H.J. Stern, The Three Techniques of Cross-Examination, 16 Trial Dipl. J. 49 (1993); T.M. Warshafsky, Successful Cross--Examination of Technical Experts, 15 Trial Dipl. J. 89 (1992); see also T.J. Vesper, Cross-Examination of the Defendant's Medical Expert (or, Who's Afraid of the IME/NIME?), 16 Trial Dipl. J. 93 (1993), which contains an outstanding bibliography on the art of cross-examination.

5 Warshafsky, supra note 4, at 89.

6 The Curriculum Vitae: What to Leave in, What to Take out, The Testifying Expert, vol. 2, no. 2, at 1-2 (1994).

7 ATLA Exchange, 1050 31st Street NW, Washington, D.C., 20007.

8 Stern, supra note 4, at 50.

9 J.S. Taylor et al., Direct Examination of Neuropsychologist, in Litigating Head Trauma Cases (A.C Roberts ed., 1991).

10 Wellman, supra note 2, at 95.

11 J.S. Taylor et al., Neuropsychologists and Neurolawyers, 5 Neuropsychology 293 (1991).

12 J.D. Matarazzo, Psychological Assessment v. Psychological Testing: Validation from Binet to the School, Clinic and Courtroom, 45 Am. Psychologist 999, 1002 (1990).

13 Id. at 1001.

14 R.J. Sbordone, Neuropsychological Assessment: How Does a Brain Injury Affect Your Client's Cognitive Abilities?, Presentation Before the Fifth Annual Trial Lawyers Seminar (Orlando, Fla., Feb. 8, 1991).

15 Wellman, supra note 2, at 95-96.

16 B.H. Stern, Representing the Mildly Brain-Injured Client: A Multidisciplinary Approach, National Trial Lawyer, New Jersey Trial Lawyer, May 1992; B.H. Stern, Direct Examination of the Neuropsychologist in a Mild Traumatic Brain Injury Case (submit-ted for publication, on file with author).

17 R.M. Reitan & L.A. Davison, Clinical Neuropsychology: Current Status and Applications (1974).

18 F. Lezak, Neuropsychological Assessment 131 (2d ed.1993).

19 American Psychological Association, Ethical Principles of Psychologists and Code of Conduct, Am. Psychologist, Dec.1992.

20 Arizona, Ariz. Rev. Stat. ' 15-761; Georgia, Ga. Code Ann. ' 37-3-1; Kentucky, Ky. Rev. Stat. Ann. ' 157.200 (Baldwin); Michigan, Mich. Comp. Laws ' 333.5413; Minnesota, Minn. Stat '' 144.661, 256B.093; Montana, Mont. Code Ann. '' 20-7-401, 53-6-501; Nevada, Nev. Rev. Stat. Ann. ' 426A.010; New York, Laws of New York ch. 196, art. 27-CC (1994); North Dakota, N.D. Cent. Code ' 50-06.4-01; Rhode Island, R.I. Gen. Laws ' 42-12-21; Tennessee, Tenn. Code Ann. ' 9-4-206.

2l Legal Definitions of TBI, The Neurolaw Letter, vol. 3, no. 6,1,3,5(1994).

22 Stern, supra note 4, at 51.

23 J.T. Barth et al., Forensic Neuropsychology: A Reply to the Method Skeptics, 2 Neuropsychol. Rev. 251, 252 (1991).

24 D. Faust & J. Ziskin, Coping with Psychiatric and Psychological Testimony (vols. 1-3) (American Board of Clinical Neuropsychology, 4th ed. 1988).

25 D. Faust & J. Ziskin, The Expert Witness in Psychology and Psychiatry, 241 Science 31 (1988).

26 Id. at 34.

27 Matarazzo, supra note 12. A response by Faust and Ziskin to Matarazzo's criticisms is found in D. Faust & J. Ziskin, Reply to Matarazzo, 46 Am. Psychologist 881 (1991).

28 Faust & Ziskin, supra note 24, at xvii.

29 Matarazzo, supra note 12, at 1013.

30 Barth et al., supra note 23; J.T. Barth et al., Forensic Assessment and Expert Testimony in Neuropsychology, Physical Med. & Rehab.: State of the Art Rev., vol. 6, no. 3 (Oct. 1992).

31 Matarazzo, supra note 12; J.D. Matarazzo, Psychological Assessment Is Reliable and Valid: Reply to Ziskin and Faust, 46 Am. Psychologist 882 (1991).

Reprinted by permission of Trial Diplomacy Journal (1995)