Neuroimaging Evidence: a Solution to the Problem of Proving Pain and Suffering?
| Publication year | 2016 |
CONTENTS
INTRODUCTION...................................................................................1391
I. BACKGROUND: AVAILABLE NEUROIMAGING TECHNOLOGY..........1394
II. EVIDENTIARY HURDLES IN ADMITTING NEUROIMAGING EVIDENCE ............................................................................................................1401
III. POTENTIAL FUTURE USE...............................................................1406
CONCLUSION.......................................................................................1410
INTRODUCTION
Envision a plaintiff who was injured on the job at a construction site due to his employer's negligence. The plaintiff has chronic back pain, but it is not verifiable on an X-ray, nor is a physical injury readily discernible by any other technology. Presently, fact finders are given the broad discretion to decide whether they find this plaintiff credible, and accordingly, whether they believe he is truly in pain and deserves damages for pain and suffering. However, neuroimaging-specifically functional magnetic resonance imaging (fMRI)(fn1)-could allow those fact finders to visualize whether this plaintiff was hurting by depicting the unique signatures that are activated in the brain when the plaintiff experiences pain. Accordingly, the use of fMRI imaging would potentially provide a more objective basis through which fact finders could decide whether this plaintiff was legitimately suffering from chronic pain.
The price paid for pain and suffering in litigation is extraordinarily high. Damage awards for injuries stemming from pain and suffering in tort amount to billions of dollars per year.(fn2) Disability benefits alone, which are often awarded to those who suffer-or claim to suffer-chronic pain, constitute over $100 billion annually.(fn3)
Nonpecuniary damages have historically been difficult to calculate. In contrast to pecuniary damages, pain and suffering, emotional harms, and damages stemming from "invisible injuries" often have no ceiling or floor, and jury awards can range from massive sums to no award at all, presumably based on the jury's partiality and trust toward a particular plaintiff.(fn4) Because of the difficulty in affixing a monetary value to these nonmonetary injuries, legislators and legal theorists over the years have attempted to develop a more concrete method of calculating these damages.
State legislatures have experimented with statutes that limit non-pecuniary damage awards for particular causes of action with varying success. Some states have statutes in place that cap nonpecuniary damages at a predefined value,(fn5) while other states' statutes use a combination of a hard cap and formulas that take variables into account such as life expectancy and earnings.(fn6) State courts have differed in their views as to the constitutionality of damage-capping statutes. These statutes have been challenged and upheld by some state courts,(fn7) while others have struck them down on constitutional grounds.(fn8) Presently, there are as many damage award structures as there are states, and it is clear that the noneconomic damages system is in flux nationally. Unsurprisingly, legal scholars have suggested a range of alternative damage award structures on which states could base their statutory schemes.
Some legal scholars have proposed replacing the current pain and suffering award system-a system that relies on broad jury discretion and damage caps-with a "system of quantitative 'scheduling' of awards for nonpecuniary loss."(fn9) Three alternative scheduling models have been suggested.(fn10) The first alternative is "a system of standardized awards set according to a matrix of dollar values based on victim age and injury se-verity."(fn11) The second is "a scenario-based system that employs descriptions of prototypical injuries with corresponding award values designed to be given to juries as guides to valuation."(fn12) The final alternative is "a system of flexible ranges of award floors and caps that reflect the various categories of injury severity."(fn13) Because these schedules can more comprehensively address the variability and predictability of problems in damage awards, the proponents of these alternatives propose that a system of matrices or scenarios is superior to the floors and caps system.(fn14) Again, a floors and caps system enables broad jury discretion, which might be avoided through matrices or scenarios.
Unfortunately, despite the fact that these alternatives are generally well-accepted in the legal community, the system for awarding pain and suffering damages has remained in a stagnant state-a system that relies on the broad discretion of the jury. Thus, with nonpecuniary damages award systems in a state of flux, it is reasonable to begin searching for alternative models which might provide a more objective system of measuring noneconomic injuries.
This Note discusses the pros, cons, and feasibility of a pain and suffering award system that incorporates neuroimaging evidence, where a floors and caps system would be largely unnecessary and plaintiffs would be able to collect the awards they deserve while still operating within a system based on narrowed jury discretion. This Note argues that, while holding promise for the near future, the current pain neuroim-aging technology is not sufficiently reliable nor accepted in the scientific community to warrant widespread use in litigation to prove pain and suffering injuries, and at present, courts are likely to exclude pain scans because of their prejudicial nature.
First, Part I provides a brief background of current structural and functional neuroimaging technology and whether the technology can be used to prove pain and suffering. Next, Part II discusses the evidentiary hurdles for getting neuroimages admitted as evidence as seen in a wide variety of cases where courts have admitted or denied neuroimaging evidence. Part III analyzes the potential uses of neuroimaging evidence in proving pain and suffering and the implicit problems with its admission into the courtroom. Finally, this Note ultimately concludes that because the technology is not presently generally accepted in the scientific community as a verifiable method to prove pain, the judicial system is not currently prepared for the broad-scale admission of neuroimaging evidence to prove pain and suffering.
I. BACKGROUND: AVAILABLE NEUROIMAGING TECHNOLOGY
Neuroimages are generated by computers, are produced from non-invasive techniques, and represent both the brain's structure and func-tion.(fn15) The technology is relatively new.(fn16) In order to understand why neuroimages should not be admitted as evidence to prove pain and suffering at this stage, it is imperative to have a basic understanding of the technology itself. This Part first provides background information on structural and functional neuroimaging techniques. It then discusses the structural regions of the brain believed to be implicated in pain perception and explains how the current technology may be used to prove pain and suffering.
Two techniques are primarily used to generate structural neu-roimages (images of the brain's structure): computerized tomography (CT) and magnetic resonance imaging (MRI).(fn17) MRIs are expensive and produce a high-quality image, while CT scans are less expensive but of lower quality.(fn18) Additionally, MRIs take longer to capture and produce an image.(fn19)
CT scans "measure the attenuation of X-ray beams passing through target tissue," or in other words, the scans produce black and white images that show the degree that different types of brain tissue absorb and deflect X-ray beams, which provides a structural image.(fn20) A subtype of CT that is useful for showing how blood flows to particular regions of the brain is the single positron emission CT (SPECT).(fn21) A SPECT scan integrates CT and also incorporates a radioactive tracer to view the brain and body; the tracer allows clinicians to see how blood flows to tissues and organs.(fn22) CT scans are widely used in medicine and produce an accurate image of a particular patient's brain structure.(fn23)
In MRI, "grayscale images are constructed from the electromagnetic signals that are emitted by the proton nuclei of hydrogen atoms, which are found predominantly in tissue water."(fn24) In order to obtain MRI images, a person is placed in an MRI scanner, which has a strong external...
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