Forensic Neuropsychology News and Court Decisions
This page includes case citations and discussions regarding law and neuropsychological or psychological assessment and testimony.
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On this Page you will find discussion about admissibility of expert testimony from adult and pediatric neuropsychologists concerning extent of brain injury, brain damage effects, and causation of brain damage. You will find discussion about third party observation in psychological and neuropsychological examinations.
Hot topics in Florida for psychological testing in 2004 and 2005 have involved in persisting problems for examiners who generally per professional guidelines should object to a third party observer, video-recording, or audiotape during psychological or neuropsychological testing.
While a Florida appellate ruling held that this was essentially allowed by the judge's discretion on a case-specific basis, professional organizations have frowned on this practice. The ruling did indicate that such requests may be denied based on case-specific reasons that such intrusions would be inappropriate and that no other provider in the area would be willing to perform the service under such circumstances.
In a 2004 case (Birkhold v Grooms), an unwritten opinion involving a case in Gainesville Florida in which Dr. Bordini performed a neuropsychological Compulsory Medical Examination, the Florida Appellate Court upheld the judge's decision to preclude such intrusion in that case.
In the Birkhold v Grooms case there was testimony that such intrusions may impact on spontaneity of emotion, willingness to disclose during interview, and that it would be an ethical responsibility of psychologists to always qualify any test results because ethical principles concerning testing require psychologists to acknowledge any reservations about the data.
Dr. Bordini testified at least some reservation would have to be made about the reliability and validity of test results obtained in such settings, since the intrusions violate standard administration. He testified that in some cases, this is known to alter results (sometimes improving performance, thus raising risk of failure to find deficits, and sometimes impairing performance by increasing anxiety, a known inhibitor to performance. He added that in even more cases, tests have not been well studied and reservations would need to be expressed since how this might impact on test scores and their interpretation is unknown.
Since (1) there were case specific issues which were raised and (2) there were no psychologists who could (ethically) state they could perform such evaluation without stating reservations about the scientific reliability and validity of such intrusions, the District Court judge's decision to preclude third party observers, audio-taping, or video-taping was upheld.
Admissibility of Neuropsychological Testimony
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). This involved a criminal trial in which the jury was instructed to disregard the testimony of the psychologists on the grounds they could not give a medical opinion as to mental disease or defect because they did not have medical training. The appellate court reversed the decision holding the expert did not need to be a medical practitioner. A later opinion, in United States v. Riggleman, 411 F.2d 1190 (4th Cir. 1969) supported the position that psychologists were not excluded from testifying about criminal sanity solely because they lacked medical training.
Simmons v. Mullins, 231 Pa. Super. 199, 331 A.2d 892 (Pa. Super. 1975) was an early appellate decision which essentially reversed a trial court opinion that neuropsychologists were not competent to offer expert tesimony on brain malfunctions from motor vehicle accidents. The apellate court held that to exclude such testimony on physical matters by psychologists would be to ignore present medical and psychological practice. Most states allow neuropsychological testimony about brain damage while there is a greater diversity of opinion as to testimony about causation.
A good review of issues about the admissibility of neuropsychological testimony van be found at:
Neuropsychological Expert Testimony
Similar to the standard in Federal courts, Florida rules regarding expert testimony (90.702) state "If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to the evidence at trial."
Florida Distrct Court of Appeals rules error made in excluding neuropsychologist testimony regarding etiology of brain disease.
A Florida Appeal Court decision in Broward School Board v Cruz, Case 4D98-2170 ruled that error was made in not allowing neuropsychologist to testify as to etiology solely on the basis of not being a medical doctor.
The state objected to Blakely's testimony on the ground that, because he was not a neurologist, Blakely was not qualified to testify about possible causes of a frontal lobe dysfunction that he had detected in defendant's brain. The trial court sustained the objection.
The trial court allowed defendant to make an offer of proof as to Blakely's qualifications. Among other things, Blakely explained that he and other neuropsychologists routinely render opinions interpreting clinical data and arriving at conclusions about possible etiologies to explain the data.
Defendant asserted that Blakely's education and experience qualified him to testify about possible causes of defendant's frontal lobe dysfunction and accordingly, that the ruling was erroneous.
The trial court sustained the state's objection, stating, "[I]t seems to me that Dr. Blakely is able to testify as to his findings. To indicate a cause, I think is beyond his expertise."
On appeal, defendant argues that Blakely was qualified, under OEC 702, (7) to testify about possible causes of frontal lobe dysfunction and that, accordingly, the trial court erred in sustaining the state's objection on the basis that Blakely was not so qualified.
The state appeal court reviewed the assignment of error for errors of law. Applying that standard, the court concluded that the court should have allowed Blakely to testify about the possible causes of defendant's frontal lobe dysfunction.
The state appeal court noted, that the basis for the trial court's ruling was that, because Blakely lacked a medical degree, he was not qualified to testify about the possible causes of defendant's frontal lobe dysfunction. The court reviewed prior cases considering the same issue which held that a clinical psychologist could testify as to "the existence of organic brain damage, he could not testify that accident caused organic brain damage", quoting Executive Car & Truck Leasing, Inc, v. DeSerio, 468 So. 2d 1027, 1029 (FLA 4th DCA, 1985). However, the court held that due to the evolution of the field of psychology since DeSerio this was now the minority view.
The court noted it’s previous ruling that a trial court should not have excluded the testimony of medical doctors about a psychological diagnosis known as functional overlay on the grounds that the witnesses were not psychologists (Barrett, 294 Or at 649).
The court went on to point out that Chapter 490, Florida Statutes , the Psychological Services Act, was amended after DeSerio to include as the definition of the practice of psychology the diagnosis and treatment of "the psychological aspects of physical illness, accident, injury, or disability, including neuropsychological evaluation, diagnosis, prognosis, etiology, and treatment." The court felt "a blanket prohibition of testimony by psychologists concerning causation of brain injury no longer seems practical." The court felt trial courts could allow psychologists and neuropsychologists "testify on causation as any other expert would be qualified to testify in his or her area of expertise".
The court also cited it’s ruling in Sandow v. Weyerhaeuser Co., 252 Or 377, 449 P2d 426 (1969) that the trial court erred in refusing to admit testimony from a clinical psychologist that a head injury had caused the plaintiff's emotional disturbance on the ground that the witness was not a medical doctor. The state supreme court previously ruled “a properly-qualified clinical psychologist is competent to testify concerning a person's mental and emotional condition despite his not having medical training." Id. at 384. A medical degree is not a necessary predicate to finding an expert witness qualified to testify about medical knowledge, assuming that witness otherwise is qualified to do so.
It concluded, Blakely's lack of a medical degree similarly should not have been the determinative factor in the decision whether to admit his testimony.
The Florida 4th District Court of Appeals reinforced this ruling in a medical malpractice case, Tomlian v. Grenitz, 782, So. 2d, 905 (Fla 4th DCA 2001). The trial court did not allow a neuropsychologist to testify that brain injury was caused by deprivation of oxygen at birth and did not occur prior to birth. The District court cited Cruz and the amendement to FSA 490.003(4) and indicated the neuropsychologists testimony should have been admitted.
Tomlian v. Grenitz, was reviewed by the Florida Supreme Court which foind that neuropsychologist was not competent to testify regarding medical cause of organic brain damage but was competent to testify with regard to temporal stages of organic brain development as reflected in and through behavioral and functional conditions and evaluation. The majority acknowledged that a neuropsychologist can testify to the existence of brain damage, which is a physiological condition and to the stages of brain development.
in Tomlian v. Grenitz, Judge Pariente who concurred with result only in the case which rejected Section 490.003(4) Florida Statutes as support for the proposition that neuropsychologists can testify to causation, Judge Pariente disagreed with the majority's categorical rule that a neuropsychologist can never testify as to the cause of brain damage. Judge Pariente, in his dissent, wrote "In fact, the diagnosing brain damage depends many times on the results of a battery of standard neuropsychological tests, a highly accurate and specialized method of determining the existence, location, and cause of brain damage. Morevover, while in some cases the nature of the opinion may require expertise only supplied by one trained in medicine, in many other cases, the determinative causation issue, which is whether the acute trauma of the accident caused the brain damage, is a proper subject to which a qualified and trained neuropsychologist should be permitted to testify". The judge added "This neuropsychological can often ascertain whether the brain damage is focal or diffuse, which may be the basis for determining whether an acute trauma caused the brain damage. The neuropsychologist can also utilize other historical testing and information that might be available, including IQ tests or school records to buttress any opinon as to the causal relationship of brain damage to the accident in question."
Unfortunately, in the Supreme Court Case above, professional organizations such as the American Psychological Association, Florida Psychological Association, National Academy of Neuropsychology, or International Neuropsychological Society were not invited to present an amicus brief. Should cases go to Appeals Court or Supreme Court involving admissibility of neuropsychological testimony from professional organization might provide a more direct update of the state of the science and practice of neuropsychology.
NEW HAMPSHIRE Fixed vs. Flexible Neuropsychological Test Batteries.
In Baxter v Temple the trial court excluded neuropsychological testimony in a case of lead exposure based on a flexible battery. The New Hampshire Supreme Court 2008 Baxter v Temple reviewed the neuropsychological literature, practices of neuropsychologists, and considered Daubert Standards concluding that the exclusion of the neuropsychological testimony was in error.
THIRD PARTY OBSERVERS IN NEUROPSYCHOLOGICAL TESTING:
The Supreme Court, in Estelle v. Smith (451 U.S. 454, 470 n. 14, 1981) indicated that the physical presence of an attorney during an evaluation "could contribute little and might seriously disrupt the examination."
Visit the NANONLINE.ORG Website for a position statement on this topic.
Visit our ThirdPartyObservers.Com for additional information about rulings related to test observation and concerns about effects of observation on testing.
American Psychological Association Standard for Educational and Psychological Testing are relevant since they generally indicate that the psychologist must demonstrate the validity of testing done in other than an standardized manner. This is problematic since there are published studies which show both facilitative and inhibitory effects on different types of tasks.
In Florida, there appears to be some case law, that has found a general objection to a third party observer is insufficient, but a denial of the presence of a third party observer must be demonstrated by specific factors in the case (Cite to follow).
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