Admissibility Of Neuropsychological Testimony

Bruce H. Stern

The admissibility of neuropsychological expert testimony on the issue of diagnosis and causation is governed by particular rules of evidence on the qualifications needed for an expert to provide expert testimony. Virtually all states mirror in one form or another the Federal Rule of Evidence 702 which states in pertinent part:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

The admissibility of a neuropsychologist to testify as to the existence of a brain injury is generally accepted in most jurisdictions. The ability of the neuropsychologist to give expert testimony as to the cause of that brain injury, however, is not universally accepted. While the majority of jurisdictions permit the neuropsychologist to provide expert testimony on the issue of causation, there exists a minority view which prohibits this testimony, asserting that only "medical"

experts, i.e., a medical physician, may so testify.

One of the first decisions to address the admissibility of expert testimony by a psychologist or neuropsychologist as to the existence of a brain injury or mental defect was Jenkins v. United States, 307 F.2d 637 (D.C. Cir. 1962). Jenkins was a criminal case where the defense attempted to introduce the testimony of three psychologists that the defendant had a mental disease when he committed the crimes charged. At the conclusion of the trial, the court instructed the jury to disregard the testimony of the psychologists, ruling that the psychologists were not competent to give a medical opinion as to mental disease or defect. The court excluded these opinions because the psychologists lacked medical training. The appellate court reversed the decision of the trial court, stating:

The general rule is that anyone who is shown to have special knowledge and skill in diagnosing and treating human ailments is qualified to testify as an expert, if his learning and training show that he is qualified to give an opinion on the particular question at issue. It is not essential that the witness be a medical practitioner.

The kinds of witnesses whose opinions courts have received, even though they lacked medical training and would not be permitted by law to treat the conditions they described, are legion. Id. at 644.

The court instructed that, in determining whether a psychologist had the requisite special knowledge and skill depends on a review of that psychologist's training and experience, not upon the doctor's degree or title. "The critical factor in respect to admissibility is the actual experience of the witness and the probable probative value of his opinion." Jenkins v. United States, 307 F.2d at 646.

Seven years later in United States v. Riggleman, 411 F.2d 1190 (4th Cir. 1969), the Fourth Circuit Court of Appeals was similarly confronted with the issue of whether a psychologist could provide expert testimony that the defendant was not "legally sane" at the time the crime was committed. On appeal, the defendant asserted that only a psychiatrist was permitted to testify as an expert. The Fourth Circuit Court of Appeals disagreed, finding:

However, we think the better rule is that the determination of a psychologist competence to render an expert opinion based on his findings as to the presence or absence of mental disease or defect must depend upon the nature and extent of his knowledge. It does not depend upon his claim to the title of psychologist of psychiatrist. Id. at 1191.

One of the first cases to discuss the issue of whether a neuropsychologist was competent to testify-as an expert on organic brain malfunctions resulting from a motor vehicle accident was Simmons v. Mullins, 231 Pa. Super. 199, 331 A.2d 892 (Pa. Super. 1975). There, a minor plaintiff sustained organic brain injuries when he was struck by an automobile while running across the street. In support of the damages claim, the infant plaintiff presented the depositions of two expert witnesses, one a medical doctor and the other a neuropsychologist. Defendant objected to the testimony of the neuropsychologist, arguing that he was not competent to testify as an expert on organic brain malfunction since he was a nonmedical doctor. The trial and appellate courts disagreed ruling that the neuropsychologist was competent to testify as an expert on organic brain malfunction. The appellate court ruled that it was not essential that an expert witness be a medical practitioner to testify on organic problems, noting that nonmedical persons have been permitted to testify within their special knowledge. The court emphasized:

When dealing with the brain, consultation with non-medical practitioners may be not only desirable but necessary. Id. at 898.

To adopt appellant's view that psychologists are not competent witnesses to testify on physical matters would be to ignore present medical and psychological practice. Id. at 899.

Parenthetically, the court did rule that it was error to permit the neuropsychologist to testify that the damage was caused by the motor vehicle accident. The defendant argued that only physicians could determine causation. While the appellate court did not necessarily agree with this argument, it found that nowhere in the record was there any testimony that the psychologist was qualified to ascertain causation. The court stated:

Nowhere in the record, however, is there any indication that these methods expose anything more than a mere existence of defects. Perhaps a psychologist is able to ascertain causation, but the record does not support this conclusion. Id. at 899.

The Iowa Supreme Court in Hutchinson v. American Family Mut. Ins., 514 N.W. 2d 882 (Iowa 1994), recently was called to survey various state jurisdictions on the issue of the admissibility of expert testimony by a neuropsychologist. Its survey found that "there seems little dispute that a psychologist may testify as to the existence of a brain injury or at least the condition of the brain in general." 514 N.W. 2d at 886. The real issue which divided the courts was whether or not the neuropsychologist could give expert testimony on the issue of causation, i.e., the cause of the brain injury or defect. The Hutchinson court found that the majority of jurisdictions permitted such expert testimony. A minority of jurisdictions have barred neuropsychologists from testifying about causation of brain injuries while a few courts would permit such testimony when it is presented in conjunction with medical testimony from a physician. See Spann v. Bees, 23 Md. App. 313, 327 A.2d 801 (Md. App. 1974).

After reviewing the various reported decisions throughout the country, the Hutchinson court refused to "impose barriers to expert testimony other than the basic requirements of ...Rule of Evidence 702." The court observed:

The criteria for qualifications under Rule 702-knowledge, skill, experience, training, or education-are too broad to allow distinctions based on whether or not a proposed expert belongs to a particular profession or has a particular degree. Id. at 887-888.

In Valiulis v. Scheffeos, 191 III. App. 3d. 775, 547 N.E. 2d 1289 (III. App. 2 Dist. 1989), the Illinois court noted:

Indeed, it would be somewhat anomalous to conclude that [the clinical psychologist and neuropsychologist] would not be qualified to testify about [the cause of plaintiff's injury] when the neurologist and psychologist who sought out his expertise and assistance in diagnosing the disease would likely be qualified to do so. Id. at 1296-1297.

The most recent jurisdiction to examine this issue and permit the admissibility of neuropsychological testimony was the Court of Appeals of Oregon in Cunningham v. Montgomery, 921 P2d 1355, 143 Or. App. 171 (Or. App. 1995). There, the Oregon Court of Appeals was called upon to consider an appeal by plaintiff from a jury verdict in favor of the defendant in a medical malpractice action. The cause of error alleged by plaintiff was the trial court's refusal to allow plaintiff's expert neuropsychologist to testify as to her opinion about the medical causation of plaintiff's condition. Plaintiff asserted that the dentist's negligent use of equipment that contained an oxygen leak during the administration of nitrous oxide, the doctor's failure to properly maintain the equipment and his failure to monitor the plaintiff caused her to suffered anoxic. In support of her claim, plaintiff called a neuropsychologist who had a doctoral degree in clinical psychology and a fellowship in neuropsychologist. Plaintiff's neuropsychologist performed a battery of cognitive tests. Plaintiff's expert found that plaintiff had moderate to severe deficits in the area of memory, concluding that plaintiff's visual memory appeared to be particularly impaired. At trial, plaintiff's neuropsychologist was asked for her diagnosis. Defense counsel objected, arguing that because the neuropsychologist was not a medical doctor, she could not testify as to medical causation, which the trial court sustained. The issue on appeal was whether plaintiff's neuropsychologist was qualified to testify to the medical causation of plaintiff's condition under Oregon Rules of Evidence 702.

The Court of Appeals found that the trial court's refusal to admit the testimony as to medical causation solely because the neuropsychologist was not a medical doctor was error, noting that OEC 702, patterned after Federal Rule 702, reflected that an expert witness on a medical subject need not be a person licensed to practice medicine. Relying on previous Oregon Supreme Court cases, in Creasey v. Hogan, 637 P.2d 114, 292 Or. 154 (1981), and Sandow v. Weyerheuser Co., 449 P.2d 426, 252 Or. 377 (1969), the appellate court acknowledged that the Oregon Supreme Court had already held that a properly qualified clinical psychologist was competent to testify concerning a person's mental and emotional condition, despite not having medical training.

The court here, in Cunningham, concluded that since the discipline of neuropsychology was based on specialized knowledge and experience and focusing on the relationship between brain impairment and the behavior of individuals due to head injury or other kinds of brain disease, that the testimony of the neuropsychologist should have been admitted on the issue of causation.

A related issue arose in Eckert v. Rumsey Park Assoc., 682 A.2d 720, 294 N.J. Super. 46 (App. Div. 1996). There, the issue on appeal, was the required standard needed to admit psychological or neuropsychological testimony. In Eckert, plaintiffs sought damages for injuries suffered from two falls on the steps of defendant's apartment complex. Following the two falls, plaintiff had extensive osteopathic and orthopaedic care and ultimately sought treatment from a psychologist who testified at trial that plaintiff was suffering from panic disorder with agoraphobia as well as from major clinical depression. With respect to the depression, the treating psychologist concluded that it was the result of a "single episode". She also testified that three "stressors" contributed to plaintiff's emotional state. These stressors were: the falls, which resulted in the chronic pain; plaintiff's inability to work; and her financial hardship. On direct examination, during a video de benne esse deposition, the treating psychologist was asked whether she would be able to state definitively what caused plaintiff's current psychological state. In response she answered, "No, I couldn't." When asked why not, she explained that psychologists, "Really don't talk about causation when we're talking about specifically anxiety disorders or, for that matter, most psychological or psychiatric issues. We can talk about predisposing factors."

The psychologist then attributed the fall and its resultant injury as the only applicable precipitating factor in plaintiff's case. Specifically, the psychologist was asked, "Are you then able to say that it's more probable than not that her fall and injury and resultant economic hardship has caused her current psychological state?" In response, the psychologist again reiterated her position explaining, "Again, I can't talk about causation. But I can - I certainly would say that there is a strong relationship and connection."

Prior to trial, defendant moved to strike and preclude the psychologist's deposition from being presented as part of plaintiff's case - in chief, arguing that since the doctor was unable to state her opinion within a reasonable degree of medical certainty and/or probability, that she was unable to state whether or not her present condition was caused by the fall. The trial court agreed, and barred the psychologist from testifying during plaintiff's case and on rebuttal.

On appeal, after an inadequate $7,000.00 verdict was returned, the Appellate Division reversed finding that the psychologist in her testimony made clear that the two falls and consequent economic hardship suffered by plaintiff were the precipitating events leading to plaintiff seeking treatment. In reversing the trial court's decision, the Appellate Division relied on Matott v. Ward 48 N.Y. 2d 455, 423 N.Y.S. 2d 645, 399 N.E. 2d 532 (1979). There that court observed that the causation requirement, "Is not to be satisfied by a single verbal straightjacket alone, but, rather, by any formulation from which it can be said that the witness' 'whole opinion' reflects an acceptable level of certainty". The New Jersey Appellate Division, again relying on Matott explained: "The court aptly stated it must take into account the fact that because the cause and effect relationship, by its very nature, may not be established with scientific certainty; the reservations expressed by the doctor, 'Can be seen as candid indications of the limitations inherent in medical opinion and, as such, a useful revelation to the jury in reaching its own conclusion as to the merits of the parties opposing contentions on causation.'"

The New Jersey Appellate Division granted plaintiff a new trial finding that the trial court's exclusion of the testimony of the treating psychologist for lack of a "correct" response on causation was clearly capable of producing an unjust result.

In those jurisdictions which have permitted the expert testimony of a neuropsychologist, the courts focused on the qualifications of the proposed expert neuropsychologist, examining the education, training and work experience to determine whether or not the neuropsychologist was qualified to testify. See Madrid v. University of California, 105 N.M. 715, 737 P.2d 74 (N.M. 1987); Kinsey v. King, 103 Ill.App.3d 933, 431 N.E. 2d 1316 (Ill. App. 1st Dist. 1982); Shilling v. Mobil Analytical Services, Inc., 602 N.E.2d 1154 (Oh 1992); Sanchez v. Derby, 230 Neb. 782, 433 (N.W. 2d 523 Neb. 1989); Dutaquier v. Barbera, 490 S.2d 354 (la. App. 1 Cir. 1986); Sabianke v. Weaver, 527 S.2d 1253 (Ala. 1988).

Nevertheless, in other jurisdictions, neuropsychologists are prohibited from providing expert testimony on the issue of causation or even prognosis. In Executive Car and Truck Leasing. Inc. v. DeSerio, 468 S.2d 1027 (Fla. App. 4 Dist. 1985), the Florida appeals court, citing Jenkins v. United States, held that the trial court did not abuse its discretion in allowing a clinical psychologist, who was not a medical doctor, to testify as to the existence of organic brain injury. The court indicated that the issue of a lack of a medical degree should be raised during cross-examination and closing argument. The court held, after acknowledging authorities to the contrary, that the psychologist was not competent to give expert testimony on the issue of causation of the brain injury. Because the court found that expert testimony was not necessary to prove causation in that case, however, it failed to provide any reasoning for its decision not to permit the psychologist to give expert testimony as to causation.

Shortly following the decision in Executive Car, the Florida Appellate Division was presented with GIW Southern Valve Co. v. Smith, 471 So. 2d 81 (Flat App. 2 Dist. 1985). There, the court, agreeing with the decision in Executive Car opined:

We believe that underlying rationale for excluding that type of opinion testimony requires the exclusion of the type of testimony in issue here [prognosis]. That rationale involves the lack of qualifications of a non-medical witness on a medical subject. We have no doubt that the matter of providing a prognosis as to future physiological effects upon the plaintiff's brain of a particular accident is a medical subject no less than is the subject of causation in the first instance, i.e., whether an accident caused existing brain damage. Just as, relative to causation, a witness who is psychologist and not a medical doctor lacks qualifications to trace retrospectively what would occur to the brain from a given trauma...so also does the witness lack established qualifications to trace respectively what would occur to the brain in the future. Id. at 82.

A similar result was handed down in the neighboring state of Georgia in Chandler Exterminators Inc. v. Morris, 262 Ga. 257, 416 S.E. 2d 277 (Ga. 1992). There, the trial court granted defendants motion to strike the affidavit of plaintiff's psychologist, finding that medical causation is not a subject within the scope of psychological expertise. While the court found that the psychologist opinions were too speculative and incompetent as to medical causation, the court's decision was grounded on the statutory definitions of the practice of psychology OCGA Section 43-39-1 (2) and OCGA Section 43-34-20(3). Following the Georgia Supreme Court's decision, the Georgia Legislature overruled that decision.

In an ironic twist, a North Carolina plaintiff was successful in convincing a North Carolina Court of Appeals that a neuropsychologist was not qualified to render an opinion on the issue of causation. In Martin V. Benson, plaintiff suffered a traumatic brain injury in a head on collision. Plaintiff's medical evidence included the testimony of a neurologist who specialized in treating patients with headaches. Plaintiff's physician diagnosed muscular skeletal pain, post-traumatic and postconcussion headaches. He opined that the headaches were symptoms of a closed head injury.

To combat this testimony, defendants had plaintiff examined by a neuropsychologist who testified that based on the neuropsychological testing, plaintiff's cognitive impairment was due to depression and the effects of medication, but not to a closed head injury. Plaintiff moved to bar this testimony, asserting that defendants' neuropsychologist, by statutory definition of her profession, did not have the requisite expertise to render this opinion. The trial court rejected this argument. The jury returned a verdict in the amount of $50,000.00.

Plaintiff filed an appeal again asserting that the testimony of the neuropsychologist should not have been admitted.

The Court of Appeals, in reviewing North Carolina statutes, held that it was evident from interpreting the statute that the practice of psychology did not include the diagnosis of medical causation. The Court, after reviewing but only a few report decisions on this issue, concluded that the neuropsychologist, in expressing an opinion that plaintiff did not suffer a closed head injury in the accident, testified to medical causation. The court held that "this testimony invades the field reserved for the practice of medicine in this state. The privileges and limits of the psychology profession are primarily matters to be determined by our Legislature."

In dissent, Judge Lewis, in reviewing various decisions from throughout the country and in North Carolina concluded that the Court should follow the majority of states which permit a psychologist to testify as to medical causation as long as she or he possesses the requisite knowledge to be found an expert under Rule 702 by the trial judge. At present, an appeal to the North Carolina Supreme Court is being considered.

CONCLUSION

The general weight of authority in the United States at this time, is that psychologists and neuropsychologists are qualified to testify on the issue of diagnosis and causation of traumatic brain injury. It is important when qualifying a neuropsychologist, that a thorough voir dire of the expert's qualifications be presented to the court and jury. In those minority of states where this testimony is inadmissible, as much time as possible should be spent having the neuropsychologist explain the anatomy of the brain, what happens to the brain when it is injured and what deficits can be expected so that when the neuropsychologist explains the abnormalities found on testing, that the jury, on its own can draw the conclusion that the deficits found on testing were related to the traumatic brain injury. That is not to say, that it is unnecessary to utilize other experts where the neuropsychologist is barred from rendering an opinion as to diagnosis and/or causation. In those states especially, it is necessary to have other medical doctors such as a neurologist or physiatrist to give that crucial testimony.