At my recent NAN presentation at the 27th Annual NAN Conference, my presentation was interrupted by Dr. Joseph Reed while I was discussing a quote found in a paper which he wrote regarding a Federal Court decision entitled “Chapple v. Ganger”.
During my presentation, I was discussing a Federal Court case entitled Chapple v. Ganger, 851 F. Supp. 1481 (E.D. Wash 1994). That case involved a catastrophic motor vehicle crash which killed Peggy A. Chapple and severely injured her 10-year old son. The defendant conceded liability, and the parties waived their right to a trial by jury and agreed to have the Court decide it by an abbreviated bench trial. The parties agreed that damages would be based upon a review of deposition testimony submitted by the parties, their experts and witnesses. The parties further agreed that the decision of the Court would be final, binding and nonappealable.
Christopher Chapple, the 10-year old child, through his guardian sued the defendant seeking both economic and non-economic damages for the losses he suffered as a result of the injuries he sustained in the crash. One of the issues in this contested bench trial is whether or not Christopher had sustained a permanent traumatic brain injury. Plaintiff retained Dr. Catherine Mateer who performed certain tests to determine if Christopher had a permanent cognitive deficit. In contrast to plaintiff’s evidence, defendant asserted that the child did not have a permanent brain injury. In support of this argument, defendant offered the testimony of Dr. Ralph M. Reitan. Dr. Reitan reviewed Christopher’s history, his raw test scores administered and various records. Dr. Reitan rejected Dr. Mateer’s assessment as it was not what he described as a “neuropsychological” examination but instead, “was the kind of ability and cognitive testing that might be used to assess a normal child.” Dr. Reitan attacked the methodology utilized by Dr. Mateer.
The trial court rendered an award to Christopher. However, the court specifically found that in its opinion, Christopher had not sustained a permanent brain injury.
After this decision, Dr. Joseph Reed, published an article stating that for the first time, the court applied the Daubert standard to the use of the fixed (standardized) versus flexible ( non-(standardized) neuropsycholological test batteries in federal court.
In my presentation, I pointed out that this statement by Dr. Reed was inaccurate and that Dr. Reitan and others had utilized this article to promote the use of the fixed battery over the flexible test battery. During my presentation, Dr. Reed interrupted me to argue that his statement was correct. I am thus following up on my blog to set the record straight.
As I indicated, there were a number of “Daubert” challenges to the admissibility of expert testimony as it pertained to Christopher’s injuries.
In the case, there were Daubert challenges. However, those challenges were made by plaintiff’s counsel to exclude portions of Dr. Lynch’s testimony, a medical physician and consultant in neurosurgery and neurology. The court stated, “Having reviewed Dr. Lynch’s opinion under the Daubert criteria, the court accepts Dr. Lynch’s testimony.” There was also a Daubert challenge to defendant’s vocational expert, Dr. Moisan. Plaintiff challenged the admissibility of Dr. Moisan, arguing it does not meet the Daubert standard as that testimony relates to Dr. Moisan’s opinion that Christopher would enter the job market in the mining field. The court agreed that this was Dr. Moisan’s personal opinion and unsupported by any scientific analysis. (Footnote 15).
The Court found, based on the evidence, a lack of medical evidence as to long-term prognosis, and therefore was unable to conclude that Christopher had permanent organic brain damage. However, nowhere in the opinion did the Court strike the testimony of Dr. Mateer as not meeting the Daubert standard. Furthermore, nowhere did the Court find that the Halstead-Reitan neuropsychological battery (fixed battery) met the Daubert standard while the flexible test battery did not.
Hopefully, this will put to rest the artificial controversy stirred up by Dr. Reed during my presentation.
