More and more often, trial counsel try to impose the requirements of Indiana Rule of Evidence (“IRE”) 702 to limit and/or exclude expert testimony. Certainly, in the context of personal injury litigation, the parties can be expected to battle about who is qualified to render an expert opinion as to whether the collision, fall, etc. caused the plaintiff’s personal injuries. In recent cases handed down by the Indiana Supreme Court (Bennett v. Richmond, 960 N.E.2d 782 (Ind. 2012); Person v. Shipley, 962 N.E.2d 1192 (Ind. 2012)), we see challenges to expert testimony that went too far with arguments for more stringent requirements than are required under IRE 702. Fortunately, the Supreme Court has provided much needed guidance in this regard that will hopefully prevent unnecessary attempts to exclude proper expert testimony.
We have seen challenges to a psychologist/neuropsychologist’s qualification to testify as to the cause of a person’s brain injury. In Bennett, a psychologist testified that the plaintiff had a traumatic brain injury that was caused by the rear-end motor vehicle collision in which he was involved (plaintiff’s van was struck in the rear by a 42,000 pound truck). Defense counsel objected to this testimony, arguing the psychologist’s opinion was inadmissible under IRE 702.
It is clear that in Indiana a psychologist may testify as to the existence of a brain injury or the condition of the brain in general – the question addressed in Bennett was whether psychologists/neuropsychologists may testify as to the cause of a brain injury.
In Bennett, the Court of Appeals had agreed with the defense argument that psychologists who are not medical doctors, but otherwise qualified under IRE 702 to offer expert testimony as to the existence and evaluation of a brain injury, are not qualified to offer an opinion about causation without demonstrating sufficient medical expertise in determining the etiology of brain injuries. However, this standard goes beyond that which is required under IRE 702. Even though the psychologist did not have medical education or training regarding etiology of brain injuries, the Supreme Court held this was not fatal under an IRE 702 analysis because the psychologist demonstrated: his knowledge of how a brain injury might result from the whiplash motion experienced in a rear-ending accident; how such a brain injury results in symptoms similar to those experienced by the plaintiff; and how psychological and neuropsychological testing reveals the relationship between that brain injury and behavior.
More importantly, in regards to arguments to exclude the testimony such as: 1) the psychologist had no real education or training relevant to determining the etiology of brain injuries, 2) that he took continuing education courses that only touched on subjects that relate to evaluation of traumatic brain injuries, 3) that he had worked with a limited number of neurologists on brain behavior relationship questions, 4) that he evaluated the plaintiff almost two-and-a-half years after the collision, or 5) that he did not have any baseline data for which to compare the plaintiff’s result, Court explained these matters go to the weight and credibility of his testimony, not to his qualification to give it.
Bennett also addressed the argument that an expert’s testimony must rely upon or use underlying scientific principles to reach his or her opinions in these cases. Here is where you find an abundance of challenges as lawyers will argue that the expert’s scientific principles or the methodology used to reach the opinion are bogus or unreliable and based on speculation or his subjective belief. The expert relied upon studies showing the relationship between vehicular accidents, their effect on brain tissue and how the damage produces the symptoms of brain injury. The psychologist also had administered tests that were described as widely documented and respected by neuropsychologists, and he had prepared a far-reaching background and case history to use as a backdrop for his analysis of the test results. The Court found this enough to satisfy the standard for reliable scientific principles and methodology to allow an opinion of medical causation.
In a somewhat similar context, you may encounter another type of IRE 702(b) challenge where the other party agrees that your expert’s scientific principles/methodologies are legitimate and widely recognized, but he or she is making “factual assumptions” and therefore the opinions should be excluded.
Often times there is evidence or a fact that is unknown or can’t be proven and it is necessary for a qualified expert to make an educated assumption about the evidence. For example and as is the case in Person v. Shipley, the expert made assumptions about the speed and weight of the motor vehicles. This is acceptable, appropriate and to be expected.
In Person, the expert was a biomechanical engineer who conducted a calculation of momentum transfer to reach his opinion that the rear-end collision did not cause the alleged lower back injuries. In finding the engineer to be qualified, the Court reiterated that neither the criteria for qualifying under Rule 702 nor the purpose for which expert testimony is admitted support disallowing an otherwise qualified expert to offer an opinion regarding medical causation simply because he or she lacks a medical degree. Opposing counsel argued that in making his calculations, the expert had made assumptions that were without factual support and that the ultimate opinion was unreliable and therefore inadmissible. Specifically, the expert’s conclusion that the semi tractor-trailer weighed 80,000 pounds was based on his knowledge of the DOT gross weight limit and that trucking companies prefer to operate at the maximum weight allowed. Also, he based his “educated guess” of the motor vehicles’ differential in speed by looking at the damage of the motor vehicles shown in photographs.
As noted in Person, once the reliability of the scientific principles or methodologies that the expert is utilizing are established, any dissimilarities between the assumptions and the facts, whether known or unknown, go to the weight and credibility of the expert’s testimony, not to its admissibility.
When these challenges arise, stand your ground and review the standard under IRE 702. The Indiana Supreme Court has made it clear that qualifying an expert to testify is not as stringent as some litigants would like our trial court judges to believe.