2007 Winter, Pg. 12. Admissibility of Neuropsychological Evidence in New Hampshire.

• Author: By Attorney Joseph M. Desmond

New Hampshire Bar Journal

2007.

2007 Winter, Pg. 12.

Admissibility of Neuropsychological Evidence in New Hampshire

New Hampshire Bar JournalWinter 2007, Volume 47, No. 4Judicial LegaciesAdmissibility of Neuropsychological Evidence in New HampshireBy Attorney Joseph M. DesmondI. Introduction

Neuropsychologists are often called upon in a clinical setting to identify specific areas of cognitive dysfunction in patients that sustain traumatic injuries to the brain. These clinicians assess brain damage based on the results of a battery of neuropsychological tests. The most common tests used for evaluation are memory tests, intelligence tests, and personality tests. The test results are then measured against a "norm" of what nonbrain-injured people score.

Neuropsychologists are often called as expert witnesses in personal injury actions to testify concerning the cause and extent of cognitive impairment as a result of a traumatic injury to the brain. The admissibility of such testimony is often challenged as being scientifically unreliable under evidentiary standards established by the United States Supreme Court. Furthermore, neuropsychologists are often challenged on their qualifications to render an opinion as to the cause of organic brain damage. This article reviews a recent New Hampshire trial court decision precluding a neuropsychologist from testifying based upon the scientific unreliability of a battery of tests and analyzes decisions from other jurisdictions on the extent to which neuropsychologists should be permitted to testify in brain injury cases in New Hampshire.

2. Reliability of Neuropsychological Testing

   The question of whether a plaintiff's neuropsychologist's method met the scientific reliability requirement for the purposes of admissibility in evidence was addressed in Baxter v. Temple.(fn1) In Baxter the plaintiff alleged that she sustained permanent cognitive impairment as a result of exposure to lead paint as a result of the defendants' failure to maintain a habitable apartment and by failing to warn the plaintiff's family of the presence of lead paint in their apartment. The plaintiff retained a clinical neuropsychologist to perform two neuropsychological test batteries to determine whether she was suffering from brain damage as a result of lead paint toxicity.(fn2) Dr. Bruno-Golden found that the minor plaintiff demonstrated a 20-point decline in her full scale I.Q. between the first test, administered in 2002, and the second test, given in 2004.

   Before trial, an evidentiary hearing was held on the defendant's motion to exclude Dr. Bruno-Golden's conclusions as being scientifically unreliable. At the hearing, Dr. Bruno-Golden testified that she employed a neuropsychological testing technique called the Boston Process Approach. She referred to the Boston Process Approach as "hypothesis testing." Dr. Bruno-Golden explained that in hypothesis testing of a patient, intelligence tests are initially administered, followed by subsequent tests based upon the patient's performance. A second expert, Dr. Sheehan, testified that the Boston Process Approach is a "flexible battery approach" in which the clinician utilizes a collection of standardized neuropsychological tests to assess various brain functions.

   The defendant challenged the reliability of the Boston Process Approach methodology and the specific battery of tests chosen by Dr. Bruno-Golden as being scientifically unreliable. The defendant argued that the specific battery of tests had not been subjected to peer review and publication, had no known rate of error, and was not generally accepted in the scientific literature. The plaintiff contended that the individual subtests in the battery had all been tested individually and were generally accepted in the field of neuropsychology. Dr. Bruno-Golden conceded, however, that the particular battery of tests had never been tested, and the results of the Boston Process Approach could not be independently verified because the methodology (subjective selection of sub-tests) varies between neuropsychologists. Dr. Bruno-Golden further testified at the pre-trial evidentiary hearing that she could not recall whether she had ever administered the same battery of tests on any of the thousands of patients she had previously evaluated.

   Following a six-day evidentiary hearing, the Superior Court precluded Dr. Bruno-Golden from testifying. The trial court found that the proffered testimony did not meet the requirements for the admission of expert testimony set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,(fn3) and adopted by the New Hampshire Supreme Court in Baker Valley Lumber, Inc. v. Ingersoll Rand Co.(fn4) In excluding the evidence, the court made specific findings of fact on each of the relevant Daubert/Baker considerations. Specifically, it ruled that the absence of peer review testing of the specific battery of subtests, the lack of a known potential error rate in the testing methodology, and the failure to demonstrate a general acceptance of this methodology required exclusion of the evidence.

   In addition to the shortcomings of the subject battery, Dr. Bruno-Golden's failure to administer the tests in strict compliance with the written test administration protocols further compromised the test results. Specifically, she permitted the plaintiff additional time to complete some sections of the test. Dr. Bruno-Golden acknowledged that American Psychiatric Association's Standards for Educational and Psychological Testing requires compliance with test administration procedures, and that the failure to do so may have significant effects on the validity and reliability of the test scores.(fn5) In addition to the failure to impose the strict time restrictions, Dr. Bruno-Golden was only able to identify two subtests from each test session in which she complied with the letter of the administration manual. The court found that this evidence "overwhelmingly" showed that the methodology employed was unreliable.(fn6)

   Contrary to the practice of many neuropsychologists, the Standards for Educational and Psychological Testing authored by the American Psychological Association, demand that the psychologist be able to cite specific literature supporting a particular battery's validity. If no such literature exists, the psychologist must report their conclusions as "hypotheses for future verification rather than probabilistic statements that imply some known validity."(fn7)

   The subjective selection of subtests is consistent with the practice of many forensic neuropsychologists who do not administer batteries recognized in the standards. In practice, neuropsychologists will often concede that there are no standard batteries of neuropsychological tests validated by peer review. Rather, neuropsychologists choose from a large menu of available subtests. Many neuropsychologists use a different battery of tests each time they conduct an evaluation, affirmatively demonstrating the lack of standardized testing.

   Psychologists often contend, like the psychologist that was excluded in Baxter, that the subjective selection of tests and enforcement of test protocols is an acceptable exercise of the psychologist's professional judgment. While the use of flexible batteries in a clinical setting may be an appropriate method of searching for a diagnosis, expert opinions in courts are about science, not advocacy.(fn8) The failure to administer a standard battery in strict compliance with the test protocols undercuts the reliability of the test results. Because the individual's performance is measured against the statistically normal person that has taken a standardized test that has been precisely administered, the alteration of tests make it impossible to compare the subject to the "normal" person. The exclusion of neuropsychological evidence based upon the failure to administer an accepted test battery is consistent with other courts that have reached similar results.(fn9) It should also be noted that the New Hampshire legislature has recognized the importance of standardized testing in the context of psychological screening tests for prospective police officers, state corrections officers and probation-parole officers.(fn10)

   The analysis of whether a diagnosis is scientifically reliable is complicated by the absence of accepted diagnostic criteria for post-concussional disorder. In cases involving a traumatic injury to the head, neuropsychologists often diagnose personal injury plaintiffs with post-traumatic stress disorder and/or post-concussional disorder. While post-traumatic stress disorder is a recognized diagnosis,(fn11) post-concussional disorder has not been included by the American Psychiatric Association as a recognized mental disorder.(fn12) Rather, it is included in the Appendix to the DSM-IV Manual as a proposed category with "tentative" criteria for future study.

   While not officially recognized as a formal diagnosis, the proposed diagnosis of post-concussional disorder would require two of the following: (1) a period of unconsciousness lasting at least five minutes; (2) a period of post-traumatic amnesia lasting at least 12 hours after the traumatic injury, or (3) a new onset of seizures or marked worsening of a pre-existing seizure disorder within six months after the injury. The DSM-IV Manual notes, however, that there is "insufficient evidence to establish a definite...