Psychological Testimony Under Evidentiary Attack in Traumatic Brain Injury Cases—12-7-09

                   By:    John D. McGavin, Esq.

  One of the central components of defending a traumatic brain injury case is the neuropsychological testing.  The testing is critical to both plaintiff and defendant.  The testing is important because frequently diagnostic imaging is negative and there are no objective measures to confirm the presence of any injury.

The psychological battery includes malingering measures and assessments of whether the patient is exaggerating symptoms in the litigation setting.  There is a specific diagnosis in the DSM called “somatoform disorder”.  For some time, there has been an attempt to preclude this testimony on the grounds that it invades the province of the jury to judge credibility.

 This debate will continue with the recent publication in Virginia Lawyers Weekly of a story on the matter of Kidd v. Wal-Mart Store, Inc.  CA 3:09CV264, US District Court for the Eastern District of Virginia, Richmond.  The matter recently came before the court on the motion of the plaintiff to exclude the evidence of somatoform disorder because the diagnosis invades the province of the jury.  The trial court, in an opinion from a Magistrate Judge, granted the motion.  The opinion may be appealed to the US District Judge, and from there to the Fourth Circuit.  However, when litigating a traumatic brain injury case, from a motor vehicle accident, this is an issue that will be litigated.  There are important distinctions that can be made, but the final chapter on this has not been written.  The Virginia Supreme Court will ultimately be asked to rule on this at some point.

 We encourage you to contact us for information on the case, and our strategies to address this issue.