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Negligence – Auto Accident – Mild Brain Injury – Neuropsychologist – Causation

Although a neuropsychologist’s test results of an auto-accident plaintiff may come into evidence with regard to plaintiff’s claim of mild traumatic brain injury, and the neuropsychologist may testify about the cause of plaintiff’s mental injuries, he may not testify as to causation of plaintiff’s physical human injury, and plaintiff’s motion in limine is granted in part.

The question squarely before this court is whether the Virginia Supreme Court would permit a neuropsychologist to testify to causation as another exception to the general rule that only a medical doctor may give an expert opinion about the cause of a physical human injury. Further, if the Virginia Supreme Court would not permit the neuropsychological expert here to testify as to causation, the next question is whether he can provide any of his opinions to the extent that they do not reach causation of a physical human injury. This court has reviewed John v. Im, 263 Va. 315 (2002), as well as several subsequent opinions.

The current state of the law in Virginia appears to be that a neuropsychologist can render a medical opinion under certain circumstances as to causation of mental ailments, conditions and diseases, but not as to a physical human injury. Therefore, it appears that the neuropsychologist can render medical opinions within his neuropsychological expertise as to plaintiff’s mental ailments, conditions and diseases, as well as the relationship between his conduct and such mental ailments, conditions and diseases, assuming defendant shows the relevance of such opinions. However, consistent with the Virginia Supreme Court’s ruling in Im, the neuropsychologist cannot render an opinion that plaintiff did or did not sustain a “mild traumatic brain injury” as a result of the automobile accident since such an opinion is an opinion concerning the causation of a “physical human injury” which can only be rendered by a medical doctor.

While the court is aware of the concerns expressed in the article cited by defendant, “John v. Im: Time for Clarification and Revisiting the Decision by the Supreme Court of Virginia,” by John D. McGavin, appearing in the Summer 2003 issue of the Journal of Civil Litigation, the court is bound by the current controlling precedent. Since the deadline for naming expert witnesses has passed, and since defendant has not named a medical doctor as an expert, the testimony of the neuropsychologist will be limited to relevant opinions that do not concern causation of a physical human injury.

If, as defendant suggests, medical doctors are not trained to render neuropsychological assessments and to interpret raw data, the ideal presentation of such evidence would involve expert evidence from both a neuropsychologist and a medical doctor. Presenting the testimony of a neuropsychologist for the actual content of his test results and findings, followed by testimony from a medical doctor regarding his physical human injury causation opinion (which relies on the neuropsychologist’s test results and findings), may now be the proper method of introducing neuropsychological test results. Of course, the neuropsychologist may testify independently (without accompanying testimony of an MD) regarding causation of mental injuries.

Accordingly, all of the seven diagnostic impressions offered by the neuropsychologist are admissible unless shown otherwise on some ground not presented to the court here. However, his impression that plaintiff had a concussion of the brain at the time of the accident is not an opinion he can render, since it is an opinion concerning the causation of a particular physical human injury.

Defendant also suggests that plaintiff’s adjudication as a first offender, pursuant to Va. Code Sect. 18.2-251, should be admissible to impeach his credibility. A plea of guilt under Code Sect. 18.2-251 is not a prior felony conviction that can be used to impeach a witness.

Further, it appears the trial court may need to conduct an examination of plaintiff’s experts outside the presence of the jury to determine whether plaintiff’s current traumatic brain injury is related in any way to his alleged alcohol or drug abuse. If plaintiff’s own evidence fails to raise any mental condition that could be related to both his injury and possible alcohol abuse, then evidence by defendant on such matters would be irrelevant because plaintiff would not have put the matter in issue. However, if such matter is in issue, then examination of the neuropsychologist regarding the mental effects of such alleged alcohol abuse would likely be relevant and admissible. Nonetheless, it is ultimately up to the trial judge to consider the admissibility based upon the facts before the court, and to consider any appropriate instructions to the jury regarding the use for which this evidence should be used. And unless defendant can show through plaintiff’s treating physician that there is some relationship between plaintiff’s prior head blow and the current injuries, then defendant will not be permitted to inquire about the barroom fight during cross-examination. Any such questioning will be performed initially outside the jury’s presence.

Plaintiff also seeks to limit any reference to the fact that he was out of work at the time of the accident and was receiving disability benefits for his permanent shoulder injury from his prior employment at General Electric. The court concludes that in order for the probative value to defendant to outweigh the prejudice to plaintiff, defendant will have to make a threshold showing to the court, outside the hearing of the jury, that there is evidence that plaintiff is malingering. The court will have to decide whether the weight of such evidence of malingering (if any) is strong enough to overcome the prejudice to plaintiff.

Finally, plaintiff’s motion in limine regarding his prior bankruptcy filings and his pre-accident chiropractic care is conditionally denied.

McCarthy v. Atwood (Davis, J.) Law No. 04-1219, April 18, 2005; Portsmouth Cir. Ct.; Rob Turner for plaintiff; Joseph M. Young for defendant VLW 005-8-083, 24 pp.

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