Are Neuropsychologists Permitted to Provide Testimony of Physical Causation?

Federal Rule of Evidence 702  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.

Federal Rule of Evidence 702  Two necessary conditions  If scientific, technical, or other specialized knowledge will assist the trier of fact to understand evidence or to determine a fact in issue…  If… a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Federal Rule of Evidence 702  Interpretation-  Everyone: neuropsychologists can discuss presence/absence of brain injury  Most jurisdictions: NPs can discuss cause of brain injury Heilbronner & Karavidas, 1997; Larrabee, 2011

Jenkins v. United States ( 1962 )  Three psychologists testified that Mr. Jenkins had a mental disease (schizophrenia) at time of crime.  Jury was instructed to disregard the psychologists’ testimony  “a psychologist is not competent to give a medical opinion as to a mental disease or defect”  Appellate court ruled “some psychologists are qualified to render expert testimony”

Jenkins v. United States ( 1962 )  The determination of a psychologist's 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 and not simply on the claim to the title "psychologist."

Simmons v. Mullen ( 1974 )  First case of NP testimony  Plaintiff struck by car when crossing street  Two expert witnesses commenting on brain injury  Neurosurgeon  Neuropsychologist

Simmons v. Mullen ( 1974 )  Q: Doctor, I wonder if you would explain for the Court and Jury the relationship of a clinical psychologist to a neurosurgeon such as yourself. What does a clinical psychologist do for yourself ?  A: Well, primarily in our business, if we have a patient who has complaints, particularly with those complaints representing the possibility of emotional disfunction, behavioral disturbance, things that we cannot measure on the basis of what we can see, things that we cannot measure on the basis of our detailed examinations — with that particular history, we then refer those patients for psychometric evaluation and request then of our psychologist who is doing the examination whether, by his battery of tests, he can or cannot tell us whether he believes there is evidence of disturbance as far as brain function is concerned, whether this would be on the basis of possible organic disturbance or on the basis of psychological disturbance.

Simmons v. Mullen ( 1974 )  Found that a psychologist was competent to testify “as an expert on organic brain injury.”  Not only competent but perhaps necessary  Why was NP accepted?  To reject testimony would contradict standard clinical practice  NP did not make statement regarding causation

Physical Causation- Grenitz v. Tomlian, 2003  After what appeared to be a normal pregnancy, plaintiffs' son [Jacob Tomlian] was born with cerebral palsy, resulting from oxygen deprivation.  Plaintiffs contended that the injury occurred during a difficult birth as a result of the negligence of the obstetrician and hospital  But, defendants contended that it had occurred earlier, between twenty-six to thirty-four weeks of the mother's pregnancy which, according to defendants, is when this type of brain damage usually occurs.

Physical Causation- Grenitz v. Tomlian, 2003  NP agreed that “injury (hypoxia) occurred during the intrapartum period when (mother) was at Bennett Hospital on May 11th”  Court ruled- “thus, the neuropsychologist was permitted to testify with regard to the etiology (brain damage) of the behavior he evaluated. He should not have been permitted to testify as to the medical causation of the organic brain damage itself ”  Normal course of brain development  Presence of abnormal behavioral/functional conditions

NP Testimony  NP can testify about tests, test results and the interpretations of the results  Opinions of physical causation are usually allowed for most cases  Car accident TBI cases  Less frequently allowed for cases involving toxins  Usually excluded when opinions rely on non-established techniques (ex. QEEG) Larrabee, 2011

Why Some Courts Allow NP Causation Testimony?  Physician use of neuropsychological data  "it would be somewhat anomalous to conclude [a psychologist] would not be qualified to testify about [the cause of plaintiff's injury] when the neurologist who sought his expertise and assistance in diagnosing the disease would most likely be qualified to do so." Valiulis v. Scheffels, (1989) Goldschmidt, 2001

Why Some Courts Allow NP Causation Testimony?  Physician & NP: Two sides of the same coin?  When a physician makes a diagnosis they utilize physical markers  Rely on behavioral markers when needed (NP referral)  NP utilize behavioral markers  Rely on physical markers when needed (MD referral)  Similar to Simmons V. Mullen Goldschmidt, 2001

Why Some Courts Allow NP Causation Testimony?  According to the Colorado Supreme Court, a witness may be qualified by knowledge, skill, experience, training, or education to support testimony in the form of an expert opinion. A witness may be qualified by virtue of any one of these five factors (FRE 702).  In addition to NPs, epidemiologists and chemists have testified about physical cause. Goldschmidt, 2001

Qualified by Knowledge, Skill, Experience, Training, or Education  Landers v. Chrysler Corp. (1997)  Dr. Wetzel was qualified to testify as an expert as to the causation of claimant's injuries. Dr. Wetzel practices neuropsychology and is a full professor in neurology and in neurological surgery at Washington University School of Medicine. He has been published in medical journals and is a Fellow of the American Psycho-pathological Association. He teaches neurologists, neurosurgeons, and psychiatrists in the area of his expertise. When it comes to assessing the cause and existence of brain damage, neurologists and neurosurgeons come to Dr. Wetzel for both advice and training.  Who determines if person has sufficient knowledge, skill, experience, training, or education?

Qualified by Knowledge, Skill, Experience, Training, or Education  Most courts accept NP as being able to testify about etiology  Appellate courts usually leave to discretion of trial court  Few courts consider etiology a topic of “medical causation” or a “medical issue”, thus only MDs can testify Richardson & Adams, 1992

How to Determine Causation?  Need to show there is brain injury  Neuropsychologists do this by:  Assessing current functioning  Estimate previous functioning  Determine change in functioning  Connect the change to the incident  Need to rule out all competing views  How?  Physicians assess physical changes to brain,  NPs assess behavioral changes to brain  Are both needed? Richardson & Adams, 1992; Goldschmidt, 2001

Impact?  Inter-disciplinary collaboration is the norm in the clinical setting  So why care?