It is often the case that Defendants enlist the services of a neuropsychologist (“Neuro-Psych”) in personal injury cases in order to help them understand and rebut certain types of brain injury claims. Where a plaintiff claims their cognitive ability (such as the ability to think or focus or prioritize tasks) has been negatively affected by a closed head injury, sometimes a Neuro-Psych expert is the right type of practitioner to help understand and explain those types of problems. More importantly, this type of expert can help describe to a jury which types of things are related, or not, to a particular injury or event.
Role of Neuropsychology Experts
A Neuro-Psych expert is a clinical psychologist with specialty training in the study of the brain-behavior relationships. In general terms, these experts administer and interpret neuropsychological tests which are used to assess an individual’s level of cognitive function or dysfunction. It is important to understand as a starting point that Neuro-Psychs are governed by specific and discrete rules, known as “implementing regulations,” which are unique and specific to their field. These are rules they must follow in their trade and they help ensure the integrity of the results of their testing. Importantly, if they don’t, they would be subject to cross examination and, likely, their opinions would have little to no value or weight at trial.
Testing Security and Implications
Historically, lawyers involved in litigating personal injury cases recognized and understood – and more importantly respected – the notion that certain portions of the materials these experts generate during their examinations would be subject to certain protections and qualified privileges. In very general terms, Neuro-Psychs are required to maintain testing security, meaning the integrity of the test results relating to the raw data collected during a “question and answer” part of the exam. This is because these neuropsychological tests are generally only effective to the extent that the test taker is unaware or “naïve to the test’s contents.” Otherwise, the tests’s validity could be undermined by efforts to influence the results artificially, casting doubt on the expert’s conclusions. “That which we observe, we change” is a maxim the field of neuro-psychology tries to avoid.
Further, these tests are often used to answer highly consequential questions. In some cases, they are used to assess whether or not a surgeon is fit to continue performing surgeries, or whether a criminal has a cognitive condition that should serve as a mitigating factor in sentencing. As a result, some individuals have an acute interest in the opportunity to receive information about these tests, prior to undergoing the examination, to either appear less impaired than they actually are, or more impaired, depending on what is at stake. In the case of a personal injury plaintiff, the goal would be the latter, for the purpose of secondary gain.
Ethical and Legal Considerations
It is important to understand the rules relating to the area of Neuro-Psych CME’s (Compulsory Medical Examinations) and discovery. First, releasing these raw and un-interpreted answers, or “raw data,” to persons other than licensed psychologists violates the American Psychological Association’s Ethical Principles of Psychologists and the Code of Conduct (APA Ethics Code 2002). Doing so places confidential test procedures in the public domain and makes the tests and answers available to persons unqualified to interpret them.
Second, it is also a violation of Florida Administrative Code Section 64B19-18.004(3) and 64BH19-19.005(3) to provide this information to anyone other than a licensed psychologist. This is known by anyone that practices personal injury, plaintiff or defense, and in years past we generally found that attorneys respected the fact these practitioners think it important to comply with these codes and principles. Accordingly, in the usual case – in previous times at least – the procedure was that the expert would release the raw data only to the other side’s treating or retained neuropsychology expert. That concept never seemed to get much pushback in previous years.
Emerging Challenges
This has all changed. In the past couple years in particular, our office has had to battle these issues in almost every case involving the use of a Neuro-Psych CME. Defendants now face constant efforts to obfuscate and interfere with each Neuro-Psych exam we schedule. These efforts include insisting that the neuropsych evaluation be videotaped, that an observer be present in the room, and that the raw data collected during the exam be produced without limitation to the attorneys, rather than a treating Neuro-Psych doctor. The real effort, manifestly, is to delay and make it more difficult and even less likely that the exam will go forward, because many Neuro-Psych experts will not go forward with testing under the conditions insisted on by counsel for plaintiffs. It appears the Plaintiff bar now recognizes that many of these Neuro-Psych practitioners will so refuse in the event a Court agrees with the plaintiff and permits third-party observers, a videographer, and the unlimited production of the raw data. This can happen any time a judge ends up ruling on objections to the scope and specifics of a CME.
There is another reality: If the Neuro-Psych CME is noticed shortly before the trial period, as most defendants have done historically, we now see a pattern whereby the plaintiff attorneys attempt to lodge these complaints close in time to the date of the CME by filing written motions or objections requiring a hearing. And hearings are hard to come by in many venues in Florida these days. Often, it seems the only real point is to disrupt and cause delay in getting Neuro-Psych exams completed correctly. This can make it difficult for a defendant to be ready with a fully prepared expert having a full understanding of the extent and value of the claimed injuries.
Practical Strategies for Defense
We have begun anticipating these issues, and have developed ways to void some of these practical problems:
- Obtain an Expert Affidavit Early: One good way to address a plaintiff’s objections to a Neuro-Psych CME is to, as early as practical, obtain an affidavit from your expert neuropsychologist that can be used to bolster a motion to overrule those objections.
- Request an Evidentiary Hearing: If your expert is willing, which we often find to be the case, set an evidentiary hearing so that your expert can provide live testimony as to why the Court should not enter a ruling that would otherwise jeopardize the security and validity of the testing materials.
- Prepare Legal Arguments: Be ready with a memorandum to file and argue on the regulations and laws so that Judges can see for themselves the Neuro-Psych expert is insisting on following regulations and rules that apply to them, rather than just being intransigent.
- Consult with the Expert in Advance: Early on, have a frank discussion with your chosen Neuro-Psych expert and tell them what to anticipate with regard to these objections, and ask if they will still be willing to serve in that role if a Judge overrules our position about observers, videotapes and the issue of releasing raw data to non Neuro-Psych experts. The sooner a defense lawyer is aware of these issues, the sooner one can plan to be ready for these objections and issues, which appear to be increasing in frequency and use.
All of this said, a Neuro-Psych expert in a case with a mild traumatic brain injury (TBI) can be an important component of a defense and, hopefully, can shed light on whether or not a plaintiff really does seem to have any anatomic issues causing or aggravating psychological conditions. By being aware of the testing process, legal hurdles and how plaintiffs’ objections can impact the process, claim representatives and defense counsel can better anticipate delays and complications. This knowledge ultimately helps in making more informed decisions regarding settlements or defense strategies.
For more information, or if you have questions about a particular case, feel free to contact us at info@kubickidraper.com.