FORENSIC NEUROPSYCHOLOGY NEWS
Relevant News and Rulings in Psychology and Neuropsychology
this Page you will find discussion about the court admissability of
expert testimony from neuropsychologists concerning brain damage, brain
damage effects, and causation of brain damage. Also on this page you
will find discussion about third party observation in psychological and
If you have supreme court or
appelate decisions cocerning neuropsychological testimony, third party
obserervers and would like to have your summary or a decision considered
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Hot topics in Florida
Courts for psychological testing in 2004 and 2005 have concerned the
presence of a third party observer, video-recording, or audiotape during
psychological interview and or testing.
While a Florida appelate
ruling held that this was essentially allowed, 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 at least one 2004 case (Birkhold v Grooms), in an unwritten opinion,
Florida Appelate Court upheld a decision to preclude such intrusions.
this 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.
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.
(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.
Psychology Associates of North Central Florida (CPANCF) is proud of its
staff of clinical psychologists and neuropsychology residents. In
addition to vitae of CPANCF staff, the following link will take you to
our articles and archives section where you may find the vitae of C.
Russell Clifton, Ph.D., who maintains an independent practices from
CPANCF, but can be reached at our number.Staff Vitae. Click on the .pdf box when you visit the site to get a vitae.
- Admissability of Neuropsychological Testimony
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 appelate
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 these issues about the admissability of neuropsychological testimony at: Neuropsychological Expert Testimony
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 admissable 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.
Appeal Court decsion in Broward School Board v Cruz, Case 4D98-2170
rules error made in not allowing neuropsychologist to testify as to
etiology solely on the basis of not being a medical doctor.
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
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.
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.
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.
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.
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
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."
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. Shoud cases go to
Appeals Court or Supreme Court involving admissability of
neuropsychological testimony testimony from professional organization
might provide a more direct update of the state of the science and
practice of neuropsychology.
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:
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
Visit the NANONLINE.ORG Website for a position statement on this topic.
Visit ThirdPartyObservers.Com for additional information about rulings related to test observation and concerns about effects of observation on testing.
Psychological Association Standard for Educational and Psychological
Testing are also 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 facillitative 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).
WE WELCOME YOUR SUBMISSIONS and COMMENTS!
you have additional case law relevant to the above, feel free to
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benefit of all.