Monday, August 16, 2010
Indiana Appeals Court to Psychologist: An Expert has an M.D., Unlike Thee
In a negligence action, plaintiff John Richmond alleged that he suffered back injuries and traumatic brain injury ("TBI") from a 2004 car accident. To prove his claims concerning the TBI, he offered testimony from Sheridan McCabe, Ph.D., a psychologist who examined Richmond in 2006. McCabe opined that (1) Richmond exhibits symptoms consistent with TBI, (2) Richmond did not exhibit such symptoms before the car accident, and (3) "it is my opinion that Mr. Richmond experienced a traumatic brain injury in the accident." Bennett v. Richmond, --- N.E.2d ---, 2010 WL 3196193, at 3 (Ind. Ct. App. Aug. 13, 2010) [pin cites refer to opinion PDF].
The defendants (the driver of the truck that rear-ended Richmond and the company that employed the driver) appealed, arguing that McCabe's testimony should have been excluded by Indiana Rule of Evidence 702. Distinguishing McCabe from medical doctors and others with "education or training relevant to determining the etiology of brain injuries," the court held that while McCabe could potentially testify about Richmond's medical condition (that is, his symptoms), "Dr. McCabe has not demonstrated that he is qualified to opine on causation in this case." Bennett, at 8. Concluding that absent evidence demonstrating that the accident was a but-for cause of Richmond's TBI, testimony about his symptoms was not relevant and therefore was inadmissible under Evidence Rule 402 ("Evidence which is not relevant is not admissible."). Id. at 12.
Rule 702 provides:
(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.
The court quoted a previous Indiana decision summarizing the holding of the Supreme Court of the United States in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Daubert construed Federal Rule of Evidence 702, which is quite similar to the analogous Indiana rule. The Indiana court listed the following Daubert factors as useful in deciding whether to admit proffered expert testimony (while noting that the case is not binding in Indiana but is helpful):
(1) whether the theory or technique at issue can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the technique is generally accepted within the relevant scientific community.
Bennett, at 5 (quoting Shafer & Freeman Lakes Envtl. Conservation Corp. v. Stichnoth, 877 N.E.2d 475, 484 (Ind. Ct. App. 2007)). Applying the Daubert factors and reviewing prior Indiana cases concerning TBI-related expert testimony, the court held as follows:
Dr. McCabe is not a medical doctor, but a psychologist. There was no showing that Dr. McCabe ever received any medical education or training or, in particular, any education or training relevant to determining the etiology of brain injuries. The evaluation of a brain injury, which is within Dr. McCabe's field of expertise, is distinct from the determination of the medical cause of a brain injury, which is generally exclusively within the purview of medical doctors. ... While specific degrees, certificates of training or membership in a professional organization are not required to give medical causation testimony, ... and a witness need not be licensed in order to assert an opinion in a given field, ... here, Dr. McCabe has not demonstrated that he is qualified to opine on causation in this case . ... Dr. McCabe testified only that, in his professional continuing education courses, he has “touched on subjects that relate to evaluation of traumatic brain injuries,” transcript at 311, and that he has received referrals from two Elkhart neurologists, id. at 69-70. We hold that the trial court abused its discretion when it permitted Dr. McCabe to testify that Richmond sustained a brain injury as a result of the accident with Bennett.
Bennett, at 8 (quotation marks, citations to authority, and footnote omitted). Although the court's holding might suggest that only a witness with "M.D." following her name may opine as to the origin of a plaintiff's TBI, the court disclaimed that position:
To clarify, while medical doctors will obviously be the best candidates to opine on issues of medical causation, we do not hold that a psychologist is per se unqualified to give such testimony. Under Evidence Rule 702, our evaluation on appeal turns on the proffered expert's knowledge, skill, experience, training, or education. A witness's academic suffix is of course a relevant consideration, but it is not dispositive.
Id. at 8 n.3. The analysis in Bennett, however, will likely cause plaintiffs' attorneys in subsequent Indiana trials (including, perhaps, a new trial in this case---the appeals court found the erroneous admission of McCabe's testimony was grounds to remand for a new trial) to seek experts with formal credentials that will impress judges.