These exams must be done by a neuropsychologist who is a licensed clinical psychologist i.e. a health care provider. Rule 4:10 requires such. The exams are a number of tests. They may be given orally by the examiner. Some are computer based. They are to measure how the patient performs a number of tasks. Also they test memory and math ability. They test personality and other factors. The examiner is to put together all of the info and opine as to any impairment and the degree. Cross-examining these experts is addressed on another post.
A neuropsychologist has a doctorate in clinical psychology. Most of them have completed a specific post-doctoral training course in neuropsychology.
The areas of processing that they typically are testing are speed of processing, attention skills, visual perception, language processing, memory, learning, executive function, overall intellectual ability and emotional functioning.
Their testing is considered to be objective because it employs a psychometric approach. That psychometric approach is based upon a norm or what is considered to be normal and the person is measured against that. The problem with that analysis is that people who are either high-functioning or low-functioning are probably not fairly treated because the data is based upon the norm.
Neuropsych Exams-Establishing the Baseline
The examiner should have a baseline. The baseline is the person’s condition before the injury. In order to know that, you need the following:
- Complete medical records.
- All psychiatric and psychological records.
- All school transcripts.
- Statements from family, co-workers and friends as to condition before the injury.
- Work history and records.
- Military service records.
With that basic info the testing may begin.
Neuropsychological Exams-The DME Order
On another post on this website on defense medical exams, there are basic terms of what an order should contain. However an order for a neuropsych exam should be different. There are several things that the Order should address:
1. Time and Place
Both FRCP 35 and Rule 4:10 require that the Order set forth the time and place. Such an exam should take no more than eight (8) hours. The Order should state a start time and a time by which the exam will be finished, allowing for reasonable breaks including a lunch break.
The Order should state the location. If the location is some distance away or if your client’s disabilities require some modifications, then the Order should direct the defense to provide the transportation by a licensed and bonded transportation company i.e., not an Uber or a paralegal from the office of defense counsel.
2. Who will Conduct the Examination?
Both FRCP and Rule 4:10 require that the Order specify who will conduct the examination. If there is going to be a staff member, typically a psychometrist involved, that person should be identified. That person likewise should be suitably licensed and certified. Peters v. Nelson, 153 F.R.D. 635, 637 (N.D. Iowa 1994) Prior to signing off on an Order, you should check out the background of the neuropsychologist. If there is a basis for rejecting that neuropsychologist, then the appropriate motion should be filed.
3. Scope of Exam
The Order should expressly state that any forms to be completed or any questioning of the plaintiff should be limited to matters reasonably related to the plaintiff’s neuropsychological condition. Plaintiff should not be required to bring anything to the exam. A copy of any forms that are completed by the plaintiff should be tendered to the plaintiff at the conclusion of the exam.
4. Manner and Conditions of the Exam
Both FRCP 35 and Rule 4:10 state that the Order must address the manner and conditions of the exam.
Federal Rule of Evidence (FRE) 702 requires that an expert’s opinion be “the product of reliable principles and methods”. There is no equivalent rule in Virginia. However the case law does state that expert testimony cannot be founded on speculation or assumptions but has to be based upon adequate facts. Keesee v. Donigan, 259 Va. 157, 161 (2000)
The best way to ensure that the opinions are the product of reliable principles and methods is for the examination to be video-recorded. This video recording should not be undertaken by the plaintiff but should be done professionally. Zabkowicz v. W. Bend Company, 585 F.Supp. 635, 636 (E.D. Wis. 1984).
The defense may counter that by saying that the plaintiff’s examinations with their own physicians is not recorded. Clearly that is not applicable. The defense doctor cannot be considered to be a neutral. Zabkowicz at 636.
The decisions are mixed as to whether or not video recording is allowable. Kuslick v. Roszczewski, 2012 W.L. 899355 (E.D. Mich. 2012) (requiring video recording); Schlenker v. G & R Integration Services, 2021 W.L. 6805706 (D.N.D. 2021) (allowing audio but not video).
The American Psychological Association (APA) has stated that psychologists have the option of conducting evaluations in the presence of a third party observer or video or audio recording. https://www.apa.org/science/programs/testing/third-party-observers.pdf
The APA has also instructed psychologists that when considering video recording of exams, practitioners should consider the need for transparency and documentation. 68 Am. Psych 7, 17-19 (2013)
The APA further encourages psychologists to recognize the importance of documenting all data they consider with enough detail and quality to allow for reasonable judicial scrutiny and adequate discovery. 68 Am. Psych 7, 17-19 (2013)
In addition the APA, during Covid, set certain standards for conducting neuropsychological evaluations by way of video conferencing. 34 The Clinical Neuropsychologist 1314 (2020) Obviously if the presence of video cameras invalidated the testing, then these bodies would not have embraced such video recording.
5. The Length of the Exam
This is something that should be addressed by the order. The order should state how long the exam will be. If the exam is going to be 8 hours, that should be explained as to the need. If no good reason is offered, then the exam should be opposed.
6. Test Data and Test Materials
FRE 702 requires that expert opinions be based on sufficient facts or data. This is consistent with Virginia case law. The federal law gives the right to examine an expert regarding their opinions. Lawrence v. Nutter, 203 F.2d 540, 543 (4th Cir. 1953) The best way to explore the foundations is to examine the data that they relied upon. Frequently defense counsel will offer to send the raw data to the plaintiff’s psychologist. That is not sufficient. It may be that there is no plaintiff’s psychologist. It may also be that the plaintiff’s psychologist does not want to look at this data. More importantly it is not the plaintiff’s psychologist that will be cross-examining the defense doctor.
Nothing in the APA’s ethical principles or code of conduct prohibits release of test data in accord with a court order. This is sometimes defined as raw or scaled scores or by other terms. The test materials typically are defined as manuals, instruments, protocols, questions or stimuli. Instead what the principles and code of conduct state is that the test data should be provided as required by law or court order and that reasonable efforts be made to maintain the integrity and security of that material. www.apa/ethics/code
The defense may also say that licenses that the expert has with the companies selling the tests prohibit the release of test material or data.
The response to that should be as follows:(1)the rules expressly give the court absolute discretion to specify the manner and conditions of the exam; (2)Plaintiff’s counsel has the right to cross-examine the defense doctor about their opinions as stated in Lawrence.
7. The Expert Report
The report should expressly identify each test administered and all sub tests by name and include the scaled scores and percentiles for each test.
Malingering
A tactic of these examiners is to testify that the plaintiff is malingering. In other words, the plaintiff is faking. Other terms that they use are that the plaintiff is seeking secondary gain. In addition they say the test results are due to somatic factors. Somatic means body. This is a suggestion that any problems the plaintiff is having are due to physical issues, not to a brain injury.
There are a number of decisions in Virginia and elsewhere stating that witnesses may not comment on whether another is telling the truth. The examiner is trying to do just that. That should not be allowed.
One thing you always want to look at is the number of malingering tests that the neuropsychologist gave. If they gave more than one, then you can pretty well determine what their focus is.
In regard to the defense examiner, it’s probably a good idea to ask in deposition about malingering. In particular, what percentage of people they test for validity and what percentage fail. In particular, if this plaintiff failed the validity testing, then that means that any other testing is invalid. That probably then excludes all of the neuropsychological testing because the witness should not be allowed to testify as to malingering/credibility issues.
Family History
Another issue that arises in these exams is the attempt by the defense to get info about family history of the plaintiff. Family history is claimed to be important because it may be that the plaintiff’s condition is genetic or hereditary. The primary objection to this is that those relatives are not parties to this suit. As a result their medical history is protected.
Neuropsychological Exams-Other Issues
The examiners who testify frequently for the defense are experienced witnesses. They know what the defense lawyer wants. They like to try to slip into their testimony statements such as “The test results are not consistent with a brain injury”. In addition they will try to testify that the test results are far worse than would be expected. In addition they say that the test results are invalid. All of those are really just attempts to say that the plaintiff is faking. Any statements that includes the words “consistent with” or “not consistent with” should be objected to. That is not the standard. The standard is a reasonable degree of probability.
Whether the test results are worse than what the examiner would have expected is of no import. In other words what he expects is of no account.
To allow the examiner to say that the test results are invalid is another way of saying the plaintiff is lying. That should be challenged.
Mild Traumatic Brain Injury
Some defense neuropsychologists maintain that a patient could never have a mild brain injury after a certain point in time. If that is what they believe, then it is critical to get that out of the defense examiner. What that means is that they could render their opinion based solely upon knowing how long the symptoms had lasted. You could probably have some fun with this defense examiner by reenacting the initial phone call from defense counsel. The examiner’s report would be based upon the information that the defense lawyer had given to the examiner within the first 20 seconds of the phone call i.e., that the symptoms had lasted more than that designated period of time.
Testimony
There are a number of cases dealing with neuropsychological testimony. The lead case is John v. Im, 263 Va. 315 (2002) which stated that an opinion concerning the causation of a particular physical human injury is a component of diagnosis which is a part of medicine and is not something that a neuropsychologist can address. O’Rourke v. Vuturo, 49 Va. App. 139, 638 S.E.2d 124 (Va. Ct. App. 2006) (Mental health experts permitted to testify regarding psychological injury); ITT Industries v. Taylor, Record No. 1297-06-3 (Va. Ct. App. Mar. 20, 2007) (Psychologist’s opinion properly limited to the cause of psychological impairment); Estate of Harvey v. Roanoke City Sheriff’s Office, 585 F. Supp. 2d 844 (W.D. Va. 2008) (Expert not a medical doctor and not qualified to render an expert opinion on proximate cause); Fitzgerald v. Commonwealth, 273 Va. 596, 643 S.E.2d 162 (Va. 2007) (Licensed professional counselor is authorized to diagnose recognized mental disorders); Rose v. Jaques, 268 Va. 137, 147, 597 S.E.2d 64 (2004) (Exclusion of expert testimony on malingering); Bitar v. Rahman, 272 Va. 130, 630 S.E.2d 317 (Va. 2006) (Exclusion of medical expert testimony based on “possibility” as speculative); Velasquez v. Commonwealth, 263 Va. 95, 104, 557 S.E.2d 213, 218 (2002) (Narrow exception to the holding of John v. Im that a sexual assault nurse is competent to provide expert testimony regarding the cause of injuries alleged in the context of an alleged sexual assault); Jenkins v. C & T Durham Trucking Co., No. 0381-22-1 (Va. Ct. App. Feb. 14, 2023) (Virginia Workers’ Compensation Commission is not bound by John v. Im.)
Call, or contact us for a free consult. Also for more info on this issue see the Wikipedia pages. Also see the post on this site dealing with injury issues.
