“Alabama law is clear that information upon which an expert relies must generally be introduced into evidence.” Swanstrom v. Teledyne Continental Motors, Inc., 43 So.3d 564, 579 (Ala. 2009). So, why do defense expert neuropsychologists always want a pass? Why do these defense experts appear in brain injury cases, routinely offer harmful opinions, and then refuse to provide their test data? Why would a court allow any expert to offer an opinion while refusing to provide the facts or data behind it?
Over the years, I have worked with many personal injury clients recovering from a traumatic brain injury. We are fortunate in Alabama to have some excellent medical resources on this issue, primarily in and around UAB. These professionals are not the issue. For a good background on traumatic brain injury and the neuropsychologists who evaluate the extent of these injuries, Florida attorney Matthew Dolman has written several articles.
Most neuropsychologists approach their work with great dedication to helping brain-injured individuals. As with all fields, a few bad apples cause most of the issues. It is the handful of repeat players serving the largest insurance carriers who try to conceal their data. These individuals appear in cases to offer opinions that the injured person is really not hurt, has prior problems, or is simply exaggerating — whatever excuse points responsibility away from the defendant who caused the injury. I’ve collected some of these defense expert reports and not much changes from report-to-report except the patient name. It’s as if the expert has a form with blanks for names and dates.
Neuropsychologists conduct a battery of written tests and evaluations. This underlying data should be disclosed. No expert should be allowed to give opinions without providing the underlying data. In other fields, they aren’t. Yet, this is precisely the game of blind man’s bluff played by some defense neuropsychology experts. Frankly, it amazes me that any attorney would give one of them a pass.
In a recent traumatic brain injury case, I again faced the usual negative opinions from a frequent defense neuropsychologist. When I requested the expert disclose her underlying data, she responded that her professional organization prohibited disclosure. Really? This defense expert actually argued a voluntary professional group could decide not to follow Alabama law. That argument is bad enough, assuming her professional group actually had some non-legal standard. Yet, the expert misrepresented the position of her own professional group, by omitting key portions of the disclosure rules. And, this misreprsentation is not unusual for a small group of neuropsychologists who profit by generating negative case reports with little or no underlying support. The Rules of The American Psychological Association (APA) actually provide for data disclosure in cases. APA Rule 9.04 has the following language:
Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release.
. . .
In the absence of a client/patient release, psychologists provide test data only as required by law or court order.
Clearly, a neuropsychologist must provide his or her test data if the patient asks for it or subpoenas it for court. Just in case the defense expert still believes she can legally provide opinions without disclosing supporting data, a separate APA Fact Sheet for member professionals also explains the idea of disclosure:
Under HIPAA regulations, patients generally now have access to their records, including neuropsychological reports, test responses and raw data. This is regardless of the referral party (e.g. IME, Workers Compensation) or reason for referral.
Sounds clear to me. In my recent case, the court thought it was clear as well. I obtained the client’s test results. After reviewing the data, I was eagerly anticipating the opportunity to cross-examine the defense expert. But, the defense attorney preferred a resolution before I had that opportunity.