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Cross Examination Of Defense Neuropsychologist, A Fresh And Winning Approach
2003-01-01

Cross Examination Of Defense Neuropsychologist In Mild To Moderate Head Injury Cases
A Fresh And Winning Approach

By
Randall H. Scarlett, Esq.

I

INTRODUCTION

I have been asked to lecture rather frequently on various issues germaine to the trial of traumatic brain injury cases. With increasing frequency, however, I have been asked to address the topic of defenses raised. In any case involving mild to moderate traumatic brain injury (TBI) you are likely to run into one or more of the following defenses: Pre-existing emotional disorder; malingering; exaggeration of symptoms; negative neuro-imaging; PTSD; substance abuse/previous injury; causation; and life expectancy.

This paper discuses generally how to approach the cross-examination of a defense neuropsychologist. Indeed, it will be through the defense neuropsychologist that the above defenses are raised.

I
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MALINGERING

Malingering is the defense of choice in most mild TBI cases. Simply stated, an individual who intentionally attempts to falsify or exaggerate symptoms for motivation, including secondary gain, or financial incentive, is a malingerer.

Clearly the defendant's motivation for the malingering defense is to establish that the victim or plaintiff is not worthy of a recovery.

Generally, claims of malingering come from the defense neurologist and neuropsychologist. However, where in addition to a closed head injury, a victim suffers from a chronic pain syndrome, myofacial pain, thoracic outlet syndrome, fibromyolgia, or other less specific pathology, orthopedic and other medical specialists may testify as to the malingering defense.

So, how frequent is the malingering defense raised? Recently, I was privileged to have been asked to address a group of lawyers, neuropsychologists, and case managers in Napa, California for the California Brain Injury Association. During my presentation, I asked all the lawyers in the room to raise their hand if they currently had a traumatic brain injury case in which the malingering defense had been raised. Every hand went up.

Now, while I am willing to concede that my office may have the misfortunate luck as to only attract blatant liars as TBI clients, I simply cannot concede that each of the hundred or more lawyers in the room suffered from the same misfortune. (As a footnote, my earlier statement was not 100% true. There were two lawyers in the room who did not raise their hands. As to them, however, further exploration revealed that while the two plaintiffs involved were not guilty of malingering, the defense strongly contended in each case that any injury sustained by these plaintiffs was as a result of pre-existing emotional disorder, and not the accident at issue.)

One of the most common tests used by neuropsychologist in order to determine malingering is the MMPI-MMPI/2.

The MMPI/MMPI/2 is a test comprised of 567 questions. The test is not scored as a whole, but is grouped by scales representing conditions such as anxiety, hypochondriasis, and depression.

Despite that the MMPI and the MMPI-2 are commonly administered tests, in my experience, many neuropsychologists mistakenly say that the higher the score within a scale, the more likely the alleged victim fits the scale. This is simply not true. For this reason, in order to impeach a defense expert relying on the MMPI/MMPI-2 test results to reach the conclusion that a client is malingering, it is absolutely essential that you get the defense neuropsychologist's raw test scores to your expert. Your expert must score the dozens of scales not just the basic thirteen. Remember, as a lawyer, you may not be able to personally obtain the raw test data for your own files. Instead, have the defense neuropsychologist, long prior to any deposition, transfer his/her raw test data directly to your retained neuropsychologist.

You may be wondering why I begin an article on cross-examination of a defense neuropsychologist with the topic of malingering. The answer is fairly simple. Where a defense neuropsychologist concedes cognitive deficits resulted from the accident, you do not need any article to assist you in how to approach cross-examination of the witness. It is only where the defense contends that your client is malingering, is a liar, or suffered no cognitive deficits that the art of cross-examination comes to play.

Accordingly, the following outline provides a thumb-nail sketch of my approach to cross-examination of these paid witnesses.

.
BEFORE DEPOSITION

We begin our discussion of cross-examination of defense neuropsychologists with the defense medical exam. The defense neuropsychological medical exam is an arduous process. The plaintiff is tested for a period often times exceeding eight hours. The cardinal rule applicable defense neuropsychological exams is NEVER SEND YOUR CLIENT TO THE EXAMINATION ALONE.

The second rule applicable defense neuropsychological exams is that the examination should be tape recorded or a court reporter should accompany the plaintiff, whatever is permissible in your jurisdiction. Do not allow the defense neuropsychological exam to become a second deposition of your client, where the neuropsychologist asks all the questions defense counsel forgot to ask.

In a recent case, strong cross-examination resulted from the transcribed tape of a defense neuropsychological exam. During direct-examination, the defense neuropsychologist attempted to justify his conclusion that the plaintiff had not sustained a loss of consciousness at the time of the accident by stating that the plaintiff ultimately conceded no loss of consciousness during the examination itself. The jury was played the actual tape of the history taken by the defense neuropsychologist. What was actually said was quite different.

Q: "What is your last memory before the accident"?

A: "I remember seeing the truck in my rear-view mirror and hearing a loud screech".

Q: "Go on, what next?"

A: "I, I remember my car door was opened by someone, a lady, and she was asking me questions."

Q: "Do you think you lost consciousness?"

A: "I, I don't know. I don't remember."

Request for exchange of the raw test data should immediately follow the defense neuropsychological exam. Don't just ask for the raw test data, but also ask for the test booklet pertaining to the administered tests. While you may expect that your expert will have the appropriate test booklet, you must watch for the year of the tests given. Your expert may have the current booklet for the current test whereas the defense neuropsychologist may have administered a test many years old. There are differences.

Discuss with your expert long before the deposition of the defense neuropsychologist what the raw test data reveals. Has there been any false scoring? Has there been any incorrect scoring? Have the right tests been administered? Is the scoring consistent with the test booklet guidelines? Were the tests properly administered?

Article length guidelines prohibit an in-depth study of each of the above factors. Suffice it to say, I have found that the additional time and expense involved in having your neuropsychologist examine the raw test data and booklet of the defense neuropsychologist are well worth it. In my experience, errors are common. Our clients have been misdirected as to the basic rules applicable a test. Neuropsychologists have instructed our clients to erase responses. Multiple identical tests have been administered until the defense neuropsychologist achieves the result he/she is looking for.

Obviously, proper cross-examination of a defense neuropsychologist requires that you be familiar with the tests administered, and their purpose. For example, many defense neuropsychologists will contend that a particular test demonstrates that the plaintiff is malingering, when in fact, the test evidences nothing more than concentration problems on the part of the plaintiff.

On a very basic level, one must question whether any test can truly determine whether a plaintiff is "malingering". Remember the definition: Malingering exists where a plaintiff "intentionally" attempts to falsify or exaggerate symptoms for motivation, including secondary gain, or financial incentive. All neuropsychologists should concede that there is no test which can determine "intent".

While all scales should be reviewed by your expert, the scales which will likely be utilized to determine that your client is a malingerer include the following:

(a) L Scale: The L Scale purports to identify liars. Again, the initial thought was that those intending to deceive or lie would score high within this scale. A quick review of MMPI-2 Manual reveals, however, that people intending to deceive may score in the low range, below 49%.

Accordingly, given the manual's position with respect to this test, it seems logical to ask a defense psychologist/neuropsychologist whether half of the people taking the test score below 50. Certainly 50% of the people taking the test are not liars.

(b) K Scale: The K Scale was designed to catch individuals who were crafty enough to "defeat" the L Scale. The K Scale was designed to catch the smart ones who could "beat" the L Scale. Intelligent individuals capable of faking a psychological condition are thought to score low (40 and below) where high scores were thought to denote an individual in denial as to his/her condition.

Due to the design of the K Scale, however, it is thought that people from lower social economic backgrounds, with less education, typically score low all the time. Accordingly, the validity of the test scale itself must be placed in perspective.

(c) F Scale: the F Scale measures answers that are variant from those commonly given by both injured or non-injured individuals. The thought process is that if injured people rarely answer a question in a particular way, and your client answered in such a way, (thereby reaching a high score), then your client is malingering.

As has been frequently brought up, however, truly brain injured individuals may not understand the test at all, and most will almost always receive a high score on the F Scale.

(d) F-K Index: (MMPI-2) Limited to the MMPI-2, this index is suspect as a result of the inability of the expert (no scientific basis) to obtaining an appropriate cut off score. It is not uncommon for defense experts to utilize zero as the right cur off score. There has yet to be consensus, and some neuropsychologists have indicated that the cut off score should be as high as nine.

(e) Ego Strength Scale: Since it is thought that law scores in this scale evidence extreme dysfunction, obviously if the corresponding injury is not significant, an expert will jump to the conclusion that the individual must be faking. However, the test was designed to measure a client's ego strength, not honesty and should be limited thereto.

(f) Subtle - Obvious Scale: Through use of this scale, questions are sorted into two categories: "subtle" and "obvious". It is thought that on the "obvious" questions, people could clearly see that answering certain of the questions would be indicative of cognitive deficits, whereas it was thought it would be very difficult to fake the "subtle" questions. Note that there has been substantial disagreement as to the validity of the subtle - obvious scale. In fact, the committee that re-standardized MMPI considered disregarding these scales altogether. This point should be raised during examination of the witness. A concession must be gained.

(g) Gough Dissimulation Scale - Revised: The thought behind this scale was that a group of non-emotionally distraught/non-organic brain injured individuals were asked to pretend, via answers, to be disturbed. Again, the higher the score was to have meant emulation of a faker. Note, however, that this scale was discarded by the re-standardization committee when the MMPI was revised.

(h) True Response Inconsistency Scale: (MMPI-2) Designed specifically for the MMPI-2, this is an experimental scale, though it is utilized with greater frequency today. The consistency of patient response is measured. This scale is interpreted in relation to other scales which may or may not reflect upon psychological disability.

(i) Fake Bad Scale: (MMPI-2) This scale was specifically built for litigation purposes. Simply put, the test purports to catch those individuals who exaggerate emotional distress (fake bad), and yet appear reasonable and honest (fake good). As with other tests designed specifically for the MMPI-2, there has been no peer review of this experimental test. Since it was designed for litigation, selective untested criteria have been utilized.

(j) F Back Scale: This scale is utilized in conjunction with the F Scale. It, too, was designed for the MMPI-2, and has not been subject to peer review. The thought is that the answers from the questions on the front half of the test are compared with the answers on the back half of the test. The concept is that individuals who are prone to faking will do okay on the front half of the test but not so well on the back half of the test. Accordingly, if the F Back portion of the test is low, malingering is suspect.

Lastly, it goes without saying that prior to the deposition of the defense neuropsychologist, you must do your homework on the expert. Gather all past depositions you can get your hands on. Check on the list serves for lawyers who have had contact with the expert in the past. Request whatever information you can get from the expert's state licensing board. Determine what publications, if any, the expert has authored. Be prepared when you talk into deposition.

III
.
AT DEPOSITION

Obviously, your role during an expert deposition is to determine the expert's opinions and basis therefore. However, it is often times useful before turning case specific to spend time exploring "the common ground" with the neuropsychologist.

For example, I routinely ask the defense neuropsychologist to define the role of neuropsychology and closed head injury survivors.

Most neuropsychologists will adopt the definition of mild traumatic brain injury as set forth by the American Congress of Rehabilitative Medicine. This definition follows:

DEFINITION "A patient with mild traumatic brain injury is a person who has had a traumatically induced physiological disruption of brain function, as manifest by at least one of the following:

1. Any period of loss of consciousness;
2. Any loss of memory for an event immediately before or after the accident;
3. Any alteration in mental state at the time of the accident (i.e., feeling dazed, disoriented, or confused); and

4. Focal neurological deficits that may or may not be transient, but where the severity of the injury does not exceed the following:

" Post-traumatic amnesia not greater than 24 hours;

" After 30 minutes, an initial glasco-coma scale of 13 to 15;

" Loss of consciousness of approximately thirty minutes or less."

COMMENTS:

This definition includes:

1. The head being struck;

2. The head striking an object; and

3. The brain undergoing an acceleration/ deceleration movement (i.e., whiplash) without direct external trauma to the head. It excludes stroke, anoxia, tumor, encephalitis, etc. Computed tomography magnetic resonance imaging, electroencephalogram or routine neurological evaluations may be normal. Due to the lack of medical emergency, or the realities of certain medical systems, some patients may not have the above factors medically documented in the acute stage. In such cases, it is appropriate to consider symptomology that, when linked to a traumatic head injury, can suggest the existence of a mild traumatic brain injury.

SYMTOMOLOGY:

The above criteria define the event of mild traumatic brain injury. Symptoms of brain injury may or may not persist, for varying lengths of time, after such a neurological event. It should be recognized that patients with mild traumatic brain injury can exhibit persistent emotional, cognitive, behavioral and physical symptoms, alone or in combination, which may produce a functional disability. These symptoms generally fall into one of the following categories, and are additional evidence that a mild traumatic brain injury has occurred.

1. Physical symptoms of brain injury (e.g., nausea, vomiting, dizziness, headache, blurred vision, sleep disturbance, quickness to fatigue, lethargy, or other sensory loss) that cannot be accounted for by peripheral injury or other causes;

2. Cognitive deficits (e.g., involving attention, concentration, perception, memory, speech/language or executive functions) that cannot be completely accounted for by emotional state or other causes; and

3. Behavioral changes and/or alterations and degree of emotional responsitivity (e.g., irritability, quickness to anger, dis-inhibition, or emotional lability) that cannot be accounted for by a psychological reaction to physical or emotional stress or other causes.

COMMENTS:

Some patients may not become aware of, or admit, the extent of their symptoms until they attempt to return to normal functioning. In such cases, the evidence for mild traumatic brain injury must be reconstructed. Mild traumatic brain injury may also be overlooked in the face of more dramatic physical injury (e.g., orthopedic or spinal cord injury). The constellation of symptoms has previously been referred to as minor head injury, post-concussive syndrome, traumatic head syndrome, traumatic dephalgia, post-brain injury syndrome and post-traumatic syndrome.

J Head Trauma Rehabil 1993:8(3):86-87

Key concessions of common ground are:

(1) That an individual can sustain a mild TBI without loss of consciousness;

(2) That an individual can sustain a mild TBI and yet still have negative neuro-imaging;

(3) That an individual can sustain a mild TBI without direct trauma to the skull, i.e., through acceleration/deceleration forces. Virtually all neuropsychologists will agree to these points, each of which will serve to bolster your expert's presentation.

Next, where the expert disagrees that your client sustained cognitive or other deficits as a result of the accident, or worse, where the expert contends your client is malingering, review the basis for that opinion with reference to the testing and scoring performed. Use your discretion if you have found scoring errors as to confronting the expert with such errors during deposition, or saving them for trial.

Did the expert find deficits, but is he relating them to non-organic (emotional) causes. If so, gain concession on the deficits and determine the Axis V diagnosis. The Axis V diagnosis is the Global Assessment of Function. If impairment is indicated, you have gone a long way towards establishing the deficits of your client. The only disagreement will be as to whether such deficits are organically caused, or whether they are emotionally caused. As long as the deficits result from the accident you are better than 50% home.

Determine whether the tests utilized by the defense neuropsychologist were a so-called flexible "battery of tests", or were a non-flex "battery of tests". Strict test protocols must be employed by the neuropsychologist for validity under the Halstead-Reitan Neuropsychological Battery of Tests. Indeed, the neuropsychologist is prohibited from actually administering the tests pursuant to the protocols of the Halstead-Reitan Battery, and instead, the tests must be administered by an independent tester.

Far more important than cross-examining the defense neuropsychologists during deposition, the opinions maintained by said expert must be fully obtained along with their basis. Use the deposition to prepare yourself for effective cross at trial.

IV
.
CROSS-EXAMINATION AT TRIAL

Having done your homework, you should now have a comfortable feel for the expert, his philosophy, his opinions, and the basis therefore. Depending on the expert, you may simply wish to gain all concessions possible and quickly get the expert on and off the stand.

Obviously, in cases where you have discovered scoring problems and other errors, effective cross-examination requires that the witness be confronted with same in the most powerful way possible.

For example, in a recent case, a defense neuropsychologist smugly testified that plaintiff was malingering. The expert based this solely on the MMPI-2 scales. What I knew, however, was that the plaintiff was extremely fatigued on the day he took the tests, and that he left more than thirty questions blank. By the terms of the MMPI-2 itself (see booklet), the test is invalid when thirty or more questions are left blank.

While I find that jurors have little patience for the intricacies of neuropsychological test batteries, scoring errors and other basic mistakes that are contrary to the protocols required by a test are easy for the jury to understand, and an effective means of cross-examination.

In certain cases, a flair for the dramatic may be warranted. For example, in virtually every state, it is a felony to submit a false insurance claim. Where a neuropsychologist contends that the plaintiff is malingering, that expert is, in essence, accusing the plaintiff of intentionally falsifying symptoms for the purpose of deriving money from the carrier. It takes little imagination to effectively cross-examine a defense neuropsychologist with respect to this issue. Is the neuropsychologist accusing the plaintiff of a felony? To whom did the neuropsychologist report this crime? Depending upon the circumstances of the case, and the demeanor of the defense neuropsychologist, dramatic cross-examination can result in this area.

Where a defense neuropsychologist instead concedes that deficits exist, but contends that the deficits result not from the accident, but from a pre-existing emotional condition, simple logic leads you to a cross which involves review of your client's pre-morbid functional level with the expert himself. Frankly, living in today's world, none of us are without stress. The real focus should be on pre-morbid functionality instead of the existence of pre-morbid stress.

In short, do your homework, narrow your cross, gain concessions, and tailor your cross-examination to the facts of the case at hand.

Although your style of trying a case may be vastly different than mine, I find that jurors have little patience for the details and nuances of neuropsychological testing. Don't forget the big picture. What was the plaintiff's pre-morbid functionality? What is the plaintiff's post-morbid functionality? How does the expert account for the difference if the plaintiff was truly asymptomatic prior to the accident itself?

In conclusion, there are as many methods of cross-examination as there are facts and witnesses. I remember a case I tried with Melvin M. Belli, Sr. back in the early 1980's. There was a defense neurologist that we had deposed pre-trial who we knew would pose a substantial threat to our case. The witness was polished and committed in her opinions.

During trial preparation, Mel and I discussed how he planned to handle the witness. Quite frankly, I was relieved that I did not have the job of crossing this witness, and looked forward to what Mel planned to do with the witness.

After the defense lawyer finished his direct examination the judge turned to counsel table. Mr. Belli arose, then looked at the judge, and said judge, my partner will handle this witness. Having not prepared, I bumbled my way through the examination.

After plaintiff's verdict, we discussed the case with the jury. Surprisingly, one of the jurors told me that "they really had not given much weight to the neurologist's testimony because they knew that had Mr. Belli examined the witness he would have demolished her."

Be creative, be prepared and have fun.

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The Scarlett Law Group

NEWS ROOM

Cross Examination Of Defense Neuropsychologist In Mild To Moderate Head Injury Cases
A Fresh And Winning Approach

The Scarlett Law Group: Brain Injury Lawyers

The Scarlett Law Group

NEWS ROOM

Cross Examination Of Defense Neuropsychologist In Mild To Moderate Head Injury Cases A Fresh And Winning Approach

The Scarlett Law Group: Brain Injury Lawyers

Cross Examination Of Defense Neuropsychologist In Mild To Moderate Head Injury Cases
A Fresh And Winning Approach