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Closed Head Trauma and Neuropsychological Evidence in Colorado:
Mild head
trauma is frequently litigated in cases involving a minor
blow to the head. Most frequently mild closed head injuries
are diagnosed subjectively by a neuropsychologist. Neuropsychological
testing is used to establish cognitive dysfunction attributable
to traumatic brain damage. In order for neuropsychological
testing of this sort to be admissible at trial in Colorado,
it must be admissible under C.R.E. 702 as articulated by the
Colorado Supreme Court in In Re People v. Shreck. The
federal courts use a somewhat similar standard as articulated
by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals.
In Shreck,
the Colorado Supreme Court held that under C.R.E. 702 courts
should look to (1) whether the scientific principles on which
the witness relies are reasonably reliable; and (2) whether
the particular witness is qualified to testify on such matters.
The reliability of scientific evidence, the Court noted that
Rule 702 contemplates a wide range of considerations that
may be pertinent to the admissibility of the evidence. Although
there is no exclusive set of considerations, the Court did
point to a "wide range of issues" that are frequently
relevant to a Rule 702 inquiry: 1) whether the technique can
and has been tested; (2) whether the theory or technique has
been subjected to peer review and publication; (3) the technique's
known or potential rate of error, and the existence and maintenance
of standards controlling its operation; and (4) whether the
technique has been generally accepted; (5) the relationship
of the proffered technique to more established modes of analysis;
(6) the existence of specialized literature dealing with the
technique; (7) the non-judicial uses to which the technique
is put; (8) the frequency and type of error generated by the
technique; and (9) whether such evidence has been offered
in previous cases to support or dispute the merits of a particular
scientific procedure.
Neuropsychological
expert testimony on the physical cause of organic brain injury
has been subjected to a Rule 702 analysis in Colorado. In
Huntoon v. TCI Cablevision of Colorado the Court of
Appeals held that neuropsychologists may with proper foundation
testify on the physical cause of organic brain injury. The
expert in that case was able to give an explanation of the
way in which neuropsychological testing reveals the impact
of an injury on daily activities and the way in which the
neuropsychologists use test data to diagnose brain injury
as manifested by cognitive impairment. The Court noted that
the plaintiff was subjected to a battery of tests described
as "the most well respected and widely documented in
the neuropsychology profession," in addition to an extensive
background case history for the analysis of the test results.
Certain
types of neuropsychological tests and testing procedures may
nonetheless be invalid under Rule 702. For example, in Tran
v. Hilburn the Colorado Court of Appeals addressed QEEG
testing (Quantitative Electroencephalogram), which is a computer
enhanced electroencephalogram that compares the brain activity
of the patient to that of a database of normally functioning
brains. The Court held that this particular testing device
was not admissible because it was not generally accepted in
the scientific community. Although this opinion was not based
on Rule 702, the conclusion that this test was not reliable
should hold under Rule 702 / Shreck analysis.
Thus,
although neuropsychological expert testimony cannot be excluded
as a matter of course, the underlying methodology must also
be sufficient under Shreck. Because mild closed head
injuries have the potential to raise the damages significantly,
it is important to be well versed in the various techniques
used by neuropsychological professionals, and to be able to
identify those procedures which are subject to exclusion under
Rule 702 / Shreck.
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