Protecting the Brain Injury Survivor from Unscrupulous Defense Neuropsychologist Testing
According to the latest US Centers for Disease Control and Prevention (CDC) surveillance report, in 2014 there were approximately 2.5 million traumatic brain injury emergency department visits in the US. During 2015 in California 29,475 people were hospitalized for unintentional traumatic brain injury (TBI) with 7,649 occurring just in Los Angeles. Due to the personally devastating effects and ruinous costs associated with traumatic brain injury, it is often necessary for brain injury survivors to sue the negligent party to pay for their lifetime care and avoid dependency on government taxpayer support and impoverishment.
Brain injury survivors suffering from sudden major changes in their lives including problems with memory, thinking, and emotions are ill suited for adversarial and hostile civil litigation. Traumatic brain injury (TBI) “survivors may well have cognitive symptoms that impair their ability to competently participate in their case. For example, posttraumatic amnesia may interfere with both the ability to recall events following the injury and the ability to recall appointments, names of witnesses, and documents needed. Difficulty with organizing thoughts makes preparation for depositions and meetings with attorneys difficult. Increased distractibility may make the coherent presentation of information problematic, especially in the face of skeptical cross-examination. Symptoms of TBI, like all symptoms, can be exacerbated by stress (citations). TBI survivors can thus be caught in a vicious circle, their cognitive symptoms worsening their ability to deal with litigation, and the consequent stress worsening their cognitive symptoms.” Textbook of Traumatic Brain Injury, 2nd ed., 2011, p.528.
The insurance defense neuropsychological examination is one of the more stressful and potentially damaging events to be endured by the brain injury survivor in litigation. “Those experienced in the field of forensic medical examinations are well aware that a cottage industry has grown in the United States for providing so-called IMEs…Lax (2004) argued that the IME approach can be characterized as a tool to standardize a product to be marketed to corporate clients, rather than as a precise method to assess … health conditions.” Textbook of Traumatic Brain Injury, 3rd ed., 2019, p. 894. With declining clinical practice reimbursement rates, the motivation for financial gain in forensic work coupled with a lack of patient relationship and accountability provides an incentive for poor examiner performance, feigning credibility and bias in favor of their corporate clients. Failure to protect the brain injury survivor against unprofessional conduct by the defense forensic neuropsychologist can severely undercut and undervalue the nature and extent of the brain injury. Fortunately, California law provides critical protections that should be part of every agreement or court order for a defense mental examination.
Code of Civil Procedure Provides Strict Standards for Conducting an Involuntary Neuropsychological Examination
In California, mental examinations are solely authorized by Code of Civil Procedure section 2032.310. In recognition of the personally intrusive and sensitive nature of a mental examination, a defendant is only authorized to seek a court order by a motion which “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” As is implied by the required meet and confer declaration, the parties are permitted to stipulate to the terms and conditions of the examination.
In the context of an involuntary psychological examination conducted in civil litigation, the neuropsychologist is not acting as a clinical treating neuropsychologist and there is no psychologist-patient relationship. The neuropsychologist has chosen to act in the role of a forensic neuropsychologist and is serving as a paid consultant specifically “to inform the attorney(s), as well as the “trier of fact” of the neuropsychological findings and to present unbiased opinions and answers to specific questions pertinent to the case, based on relevant scientific and clinical evidence “ Practice Guidelines for Neuropsychological Assessment and Consultation. However obtained, make no mistake, the defense neuropsychological examination is an adversarial proceeding, despite the ostensible obligation to “be an advocate of the facts” of the case”. Id. Working in a forensic setting, the neuropsychologist must be thoroughly familiar with the legal responsibilities involved in serving as an expert witness. As such, he, she or they must conform their conduct to the rules of civil litigation, including the California Discovery Act and rules of evidence. Professional guidelines, customs and practices and unreasonable claims of test material security cannot stand above the law and must accommodate California statutory and case law governing civil discovery, evidence and trial. “Similarly, applicable federal and state law supersede these guidelines.” Id.
Safeguards Include Pre-Exam Identification of Tests, Recording of Entire Exam and Exchange of Test Data and Test Materials
By common law, in California the brain injured party’s attorney is not allowed to attend the defense forensic neuropsychological examination, an examination that will include extensive and intrusive one-on-one questioning and testing of the brain injured plaintiff. Consequently, the law provides several important safeguards, including prior identification of each test to be administered, audio recordation of the entire examination, and a complete exchange of all materials relied upon, including the tests, test manuals provided by the test developer, test protocols and instructions, answers, observational notes, scoring, along with score reliability/precision and underlying test validity documentation. That is the “bargain” the Discovery Act imposes for allowing the insurance defense forensic neuropsychologist private and unfettered access to a represented brain injured party in an adversarial proceeding. Without these safeguards, it would become exceedingly difficult to ascertain whether the tests are scientifically sound, or whether the forensic neuropsychologist overstepped boundaries. For example, did the examiner violate protected attorney-client communications by asking the brain injured survivor about conversations with his or her or their attorney and any opinions or advice given? Did the examiner select scientifically sound tests that meet evidentiary tests of admissibility? Did the examiner follow test-makers’ validated protocols and instructions for administering, scoring and interpreting test results?
Don’t Ask, Don’t Get: Demand List of all Diagnostic Tests to Be Administered
With respect to providing a list of all diagnostic tests which will be administered, the California code requires it. “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” Code Civ. Proc., § 2032.320. As recognized by state courts, “The way to describe these “diagnostic tests and procedures”—fully and in detail—is to list them by name.” Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260 [45 Cal.Rptr.3d 821, 827]. Disclosure of the tests ahead of the involuntary mental examination provides some protection against the use of illegitimate or inappropriate tests being used to construct a biased defense opinion.
“Moreover, in the case of mental examinations, the plaintiff may not be accompanied by his attorney or other representative who can protect the plaintiff’s interests. Requiring the court to identify the permissible diagnostic tests and procedures, by name, confirms that the court has weighed the risks of unwarranted intrusion upon the plaintiff against the defendant’s need for a meaningful opportunity to test the plaintiff’s claims of physical or mental injury. Furthermore, the resulting specificity and clarity of the order will also aid the examiner in understanding and complying with the parameters imposed by the court.” Id.
When confronted with a request for a forensic mental examination, the prudent practitioner should demand a list of each of the actual tests that will be administered so that there is time to “consider whether the proposed tests are inappropriate, irrelevant, or abusive …” Id. No other tests should be permitted. Unfortunately, many forensic neuropsychologists obfuscate this requirement by providing a laundry list of possible tests they may use under the guise that they cannot commit to a list until they have interviewed the injured party. Although a fixed-flexible or flexible battery approach may be an acceptable approach in the clinical setting, in the legal setting the forensic neuropsychologist is constrained by law to provide the names of each test which will be administered, and nothing less should be tolerated.
The requirement for pre-testing disclosure makes sense as usually by the time of the defense neuropsychological examination, the insurance defense attorney will have provided the examiner with the brain injury survivor’s medical treatment records, including the brain injured person’s clinical mental evaluation, past medical records, employment and education records, and sworn answers to interrogatories and deposition testimony. With extensive records available for review and ability to formulate a working understanding of the neuropsychological issues at play, the argument that the neuropsychologist will not know which tests to give until the interview is not credible. As noted in a popular California legal practice guide regarding medical exams and equally applicable to mental exams, “Unless the medical examiner knows what to look for, the examination may be a waste of time. Thus, the examiner will need to review all available hospital records, medical reports, x-rays, lab tests, etc. prior to the examination.” Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8I Considerations.
But be prepared to fight should defendant file a motion for a mental examination. A detailed declaration from a qualified mental health consultant is necessary to provide the court with evidentiary support for the protections sought. If the insurance retained neuropsychologist is a known “frequent flyer” for the defense with a history of questionable conduct or biased views, include such evidence to illustrate the need for test monitoring and liberal exchange of test materials. Otherwise, counsel runs the risk that the court will invoke its “discretion” to simply trust the highly compensated defense neuropsychologist professional witness based on a naïve, idealistic and unsupported notion that the examiner is unmotivated by financial gain and will always proceed in an ethical manner. Trust but verify.
All Ears: Ensure That the Entire Exam is Recorded
A second important safeguard is the right to record the entire mental examination. “The examiner and examinee shall have the right to record a mental examination by audio technology.” Code Civ. Proc., § 2032.530. Unless test conditions are optimal, and test protocols and instructions are meticulously followed, an invalid and likely biased outcome will result. “It is not difficult to get a brain damaged patient to do poorly on a psychological examination, for the quality of the performance can be exceedingly vulnerable to external influences or changes in internal states. All an examiner need do is make these patients tired or anxious, or subject them to any one of a number of distractions most people ordinarily do not even notice, and their test scores will plummet.” Neuropsychological Assessment, 5th Ed., Lezak et al., 2012, p. 153. Without an audio record of the entire examination, how does counsel or a consultant or the court determine whether testing was done in a manner which enables the brain injury survivor to perform as well as possible?
To obtain valid and credible test results, test protocols must be scrupulously followed by the examiner. “Standard conditions are prescribed by the test-maker to ensure that each administration of the test is as much like every other administration as possible so that scores obtained on the different test administrations can be compared. To this end, many test-makers give detailed direction on the presentation of their test, including specific instructions on word usage, handling the material, etc. Highly standardized test administration is necessary when using norms of tests that have a fine-graded and statistically well standardized scoring system, such as the Wechsler Intelligence Scale tests. By exposing each patient to nearly identical situations, the standardization of testing procedures also enable the examiner to discover the individual characteristics of each patient’s responses.” Id. Again, without an audio record, how does counsel, consultants and the court determine whether the examiner followed protocols and obtained valid test results?
The demand to record the entire examination is often met with a counteroffer to allow recordation of the forensic interview but not the test administration due to test content security concerns. Again, in the context of a civil lawsuit, the defense neuropsychologist is not above the law but must comply with the law which clearly authorizes recordation of the entire exam.
“Nothing in the applicable statute suggests that the right of the examiner or examinee is limited to recording only selected parts of the examination.” Golfland Entertainment Centers, Inc. v. Superior Court (2003) 108 Cal.App.4th 739, 750 [133 Cal.Rptr.2d 828, 836].
Partial recording “would defeat the main purposes of the audiotaping, which are to ensure that the examiner does not overstep the bounds set by the court for the mental examination, that the context of the responses can be judged for purposes of trial, that the examinee’s interests are protected (especially since the examinee’s counsel ordinarily will not be present), and that any evidence of abuse can be presented to the court. (See Vinson, supra, 43 Cal.3d 833, 846, 239 Cal.Rptr. 292, 740 P.2d 404.)” Id. Test publishers’ security concerns are easily dealt with by a protective order not to disclose test questions.
To avoid intrusion into the testing and to guard against failure to properly record the examination due to technical glitches, a third-party recording technician can be used to set up microphones and monitor the recording outside the presence of the examination.
Seeing Is Believing: Insist on Exchange of Test Data and Test Materials
With respect to the exchange of tests, instructions, protocols, answers, notes, observations, scoring materials, and test validity documentation, publishers’ policies along with the right to effectively prepare for trial, to meaningfully cross-exam the forensic neuropsychologist, and California legislation provide the necessary authority to obtain it.
“A test’s documentation typically specifies the nature of the test; the use(s) for which it was developed; the processes involved in the test’s development; technical information related to scoring, interpretation, and evidence of validity, fairness, and reliability/precision; scaling, norming, and standard-setting information if appropriate to the instrument; and guidelines for test administration, reporting, and interpretation. The objective of the documentation is to provide test users with the information needed to help them assess the nature and quality of the test, the resulting scores, and the interpretations based on the test scores. The information may be reported in documents such as test manuals, technical manuals, user’s guides, research reports, specimen sets, examination kits, directions for test administrators and scorers, or preview materials for test takers.” – Standards for Educational and Psychological Testing, 2014, p. 123, by the American Educational Research Association, the American Psychological Association, and the National Council on Measurement in Education.
Forensic and clinical neuropsychologists typically refuse to disclose their raw data and test materials based on professional standards and test publisher contract and copy right provisions. Although professional standards and publisher security requirements do call for the protection of test data and materials from public disclosure, these are not absolute prohibitions. In civil litigation, test data and test material security can be secured by a court ordered protective order restricting the use of the materials to the specific case and otherwise prohibiting public disclosure. Professional ethical rules as well as the positions of the test publishers recognize that production of the materials subject to a protective order limiting their use and preventing disclosure outside of the specific lawsuit is appropriate. Carpenter v. Superior Court, supra, 141 Cal.App.4th 249, 274, Standards for Educational and Psychological Testing, 2014, p. 117, by the American Educational Research Association, the American Psychological Association, and the National Council on Measurement in Education and the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct, 9.04 and 9.11 .
Direct access to the test data and test materials provides a trial attorney trained in the art of cross-examination with a critical opportunity to confront the defense neuropsychologist and more effectively attack the expert’s opinions in ways that may not be appreciated by an assisting neuropsychologist consultant. Thus, Evidence Code, § 721 specifically provides that a party can fully cross-examine the expert forensic neuropsychologist on the factual basis of the opinions provided.
“[A] witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion.” Id.
The right to cross-examine an expert witness is fundamental to a fair trial and the search for truth.
“Cross-examination—described by Wigmore as ‘the greatest legal engine ever invented for the discovery of truth’ (citations omitted)—has two purposes. Its chief purpose is ‘to test the credibility, knowledge and recollection of the witness. (citations omitted) … [‘to sift, explain, or modify what has been said on the examination in chief, and to discredit the witness’]; citation omitted)’ [¶] The other purpose is to elicit additional evidence.’ (citation omitted) Because it relates to the fundamental fairness of the proceedings, cross-examination is said to represent an ‘absolute right,’ not merely a privilege (citations omitted), and denial or undue restriction thereof may be reversible error. (citation omitted) This is the view not just of California courts but of the highest court of our land…” – Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733-34 [95 Cal.Rptr.2d 620, 626].
Undoubtedly the forensic neuropsychologist’s opinions will be based on the various neuropsychological tests administered, scored, and interpreted concerning the brain injury survivor. Direct access to the testing materials will allow fuller examination to assess whether the results are tainted by use of novel and unreliable tests, substandard testing conditions, deviations from test protocols and instructions, unfair test sequencing, confusing word usage, mistiming, etc., all of which is relevant to test result validity and examiner bias. Without direct access, the ability to effectively cross-examine the defense forensic neuropsychologist is unfairly impaired and the truth loses out.
“Like a house built on sand, the expert’s opinion is no better than the facts on which it is based. Thus, we tell the jury it may disregard the expert’s opinion, even if uncontradicted, and draw its own inferences from the facts. (citations omitted) If the expert’s opinion is contradicted by the opinion of another expert, it merely suggests the first expert may have reasoned incorrectly; it does not suggest his general untruthfulness as a witness.
On the other hand, where the facts underlying the expert’s opinion are proved to be false or nonexistent, not only is the expert’s opinion destroyed but the falsity permeates his entire testimony; it tends to prove his untruthfulness as a witness.9” – Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923-24 [184 Cal.Rptr. 393, 402-03].
Code Civ. Proc., § 2032.610 provides another safeguard in that it allows the brain injury survivor to request that “the party at whose instance the examination was made deliver…a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.” It also adds support for direct access to test materials.
Although no California state court has directly addressed this issue, federal courts interpreting similar language have held requested test data and test materials must be produced. “The plaintiff has also requested copies of the raw data of the test and related documents. Under Rule 35(b)(1), Dr. Cancro is required to submit to the plaintiff a “detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnoses and conclusions.” Furthermore, pursuant to Rule 26(a)(2)(B), ASOMA is required to disclose the raw data from the MMPI–II if it intends to call either Dr. Cancro or Dr. Maxfield as a witness at trial, since the data forms part of the basis for their expert testimony. Accordingly, ASOMA shall produce this information once it is available.” Hirschheimer v. Associated Metals & Minerals Corp. (S.D.N.Y., Dec. 12, 1995, No. 94 CIV. 6155(JKF)) 1995 WL 736901, at *5.
More recent decisions have reached the similar results. See, Sapone v. Grand Targhee Inc. (D. Wyo., Aug. 9, 2000, No. 00-CV-020-J) 2000 WL 35615926, at *2. (“This Court finds that defendant Bustle Creeks’ rebuttal expert has a right to review Drs. Conger and Gummow’s raw data, the background questionnaire, the Child Behavior Checklist and the Family Inventory of Life Events relating to plaintiff, as such review is appropriate in this case….Defendant Bustle Creek is entitled to cross examine plaintiffs’ expert witnesses on all information considered by these experts to arrive at their ultimate opinions.”); Drago v. Tishman Const. Corp. of New York (N.Y. Sup. Ct. 2004) 4 Misc.3d 354, 358 [777 N.Y.S.2d 889, 892-93]. (“Accordingly, in this personal injury litigation … the court finds it proper to compel the disclosure of the raw data of the multiple tests administered to plaintiff.”); Tibbs v Adams (E.D. Cal., June 25, 2008, No. CIV.S052334LKKKJMP) 2008 WL 2633233, at *2. (“Even if respondent made no Daubert claim or if that claim is bootless, he is nevertheless entitled to the materials, including the raw test data, upon which Dr. Geiger relied.”); Taylor v. Erna, No. CIVA 08-10534, 2009 WL 2425839, at *2 (D. Mass. Aug. 3, 2009) (materials disclosed per non-disclosure agreement); Page v. Hertz Corp. (D.S.D., Nov. 15, 2011, No. CIV. 09-5098) 2011 WL 5553489, at *8. (“court will grant Hertz’ motion to compel disclosure of Dr. Kurzman’s raw data without restriction upon its use by Hertz.”); Katon v. United States (D.S.D., June 21, 2018, No. 5:16-CV-05023-JLV) 2018 WL 3079718, at *3 (“Under the plain language of Rule 26, Defendant is entitled to disclosure of the test items, instructions and administration procedures, scoring procedures, and test norms that Dr. Swenson utilized when evaluating Ms. Katon. Defendant is entitled to cross-examine [Dr. Swenson] on all the information he used in arriving at his opinion.”); Ioane v. Noll (E.D. Cal., July 22, 2020, No. 107CV00620AWIEPG) 2020 WL 4208365, at *4 and cases cited therein. ([Order to produce test materials directly to counsel] “Specifically, the information sought by Plaintiff contains psychological testing material that may include protected proprietary and trade secret information and may also include confidential information implicating applicable ethical standards and state and federal privacy laws. Accordingly, issuance of a protective order covering the information is warranted.”); and Glennon v Performance Food Group, Inc. (S.D. Ga., July 23, 2021, No. 2:20-CV-38) 2021 WL 3130050, at *6 (Court GRANTS Plaintiff’s request for raw data and test materials, but only subject to entry of a protective order). Cf. Collins v. TIAA–CREF, No. 3:06CV304–C, 2008 WL 3981462, at *4 (W.D.N.C. Aug.22, 2008) (Disclosure to qualified psychologist) and Detroit Edison Company v. National Labor Relations Board, (1979) 440 U.S. 301, 320 [99 S.Ct. 1123, 1133, 59 L.Ed.2d 333] (Order requiring company to disclose employee scores to Union was erroneous).
Due to the risk of a large damage award to the brain injury survivor, insurers and corporate defendants take allegations of brain damage seriously, scale their defense budgets up accordingly and aggressively defend these cases. Typically, they tend to hire the same forensic neuropsychologists known to the plaintiffs’ bar for unprofessional biased evaluations and opinions. Strict insistence on available legal protections provided by California state law to obtain a detailed stipulation and protective order is critically important to protecting the vulnerable brain injury survivor’s dignity, privacy and ability to obtain adequate compensation in civil litigation.
Thomas Cecil is a 30 year veteran of personal injury law.