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.