A Bronx County Brain Injury Lawyer argued that while Dr. EG is not a medical doctor, there is no magic to the MD degree aside from automatically qualifying by study alone. They noted that a psychologist has been found qualified to testify concerning the limitations resulting from TBI and that the diagnosis of mental disorders and the treatment of associated mental, emotional and behavioral symptoms have been held to be within the scope of practice of the professions of psychology.
Following oral argument, the hearing court granted defendant's motion, ruling that while a neuropsychologist is permitted to give testimony concerning a TBI, the absence of evidence by the qualified expert to make the critical connection between the psychologist's testimony and the TBI renders the testimony useless.
A Bronx County Brain Injury Attorney said that, before accepting expert testimony, a trial court is required to conduct a two-step analysis. First, it must confirm that the methodology used by the expert to arrive at a conclusion is generally regarded as reliable by the scientific community. Second, the court must establish the admissibility of the specific evidence. The latter inquiry is made at the trial and is the same as that applied to all evidence, not just to scientific evidence. Thus, admissibility is a distinct evaluation, involving matters going to trial foundation or the weight of the evidence, both matters not properly addressed in the pretrial Frye proceeding.
This Court assumes, without deciding, that based on tests administered to the infant plaintiff, Dr. EG is qualified to render an opinion that the type and extent of cognitive impairment indicated by his interpretation of the test results are consistent with cognitive impairment associated with injury normally resulting in TBI. The issue to be resolved is whether the evidence relied upon by the expert is sufficient to provide a foundation for his opinion that plaintiff's neurological impairments were proximately caused by the injuries sustained as a result of the particular negligence attributed to defendant, rather than by another incident in which plaintiff experienced head trauma or even by psychosocial and other factors entirely unrelated to injury.
Here, Dr. EG failed to offer or identify any objective medical evidence to support his conclusion that plaintiff's alleged brain injury and resulting cognitive problems were caused by the incident in question. The expert witness first examined plaintiff and administered neuropsychological tests on June 17, 2004, three years after the injury alleged to have been sustained as a result of the collapse of the bathroom ceiling. The report dated June 21, 2004 does not identify any earlier testing used as a basis for the expert's conclusion that the accident suffered in 2001 is the direct and proximal cause of the cognitive deficit documented in this evaluation. Particularly, the report does not refer to any assessment of plaintiff's cognitive function made before the June 2001 incident that might serve as a basis for comparison so as to support the attribution of the noted deficits to events subsequent to the assessment, even if not to the June 2001 incident itself.
A later evaluation made by plaintiffs' expert in October 2006 merely notes, a clinically significant cognitive deficit is still present. It does not even mention the September 2004 car accident, let alone attempt to assess its effect on plaintiff's cognitive function. Moreover, when faced with objective medical evidence indicating the absence of brain injury, such as negative CT scans, plaintiffs' expert dismissed it without sufficient explanation. In fact, all CT scans taken in connection with injuries sustained by plaintiff resulted in negative findings. Nor did Dr. EG adequately address evidence showing that plaintiff's cognitive difficulties predated the subject accident.
Here, plaintiffs' expert is qualified to render an opinion on the extent of plaintiff’s neurological deficits and may testify that those deficits are consistent with a history of head trauma, however, plaintiffs have failed to identify any evidentiary basis for the opinion sought to be elicited from the expert as to which of several accidents is the proximate cause of such deficits. Thus, his testimony as to this isolated point was properly precluded.