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The Daily Digest, 2/7/11

The most interesting cases to report today:

Brain Damage and Automobile Accidents: Daubert hearing
Amadio v. Glenn, 2011 WL 336721 (E.D.Pa. 2011)
Becoming increasingly more prevalent is the introduction of neurological data to substantiate what I call “invisible injuries.” That is, injuries which previously were difficult to substantiate because they couldn’t be visualized by the jury. Neuroscience to substantiate “invisible injuries” appears most often in automobile-accident cases. In this case, the court held a Daubert hearing to assess whether the Plaintiff could introduce expert testimony that he suffered a traumatic brain injury during an automobile accident with defendant. The Defendants moved to exclude Plaintiff’s expert witness because the expert had not specified his method, process or technique in developing his opinion that the Plaintiff suffered a traumatic brain injury. The court permitted the testimony, finding it to be both qualified and reliable: The expert had reviewed the neuropsychological reports of other examining physicians, the extensive medical records submitted to him by plaintiffs’ counsel, and had examined the Plaintiff himself.

Brain Dysfunction and Capital Mitigation
Sims v. State, 2011 WL 334285 (Tenn.Crim.App. 2011)
Petitioner was found guilty of especially aggravated burglary and first degree premeditated murder and sentenced to death. He sought post-conviction relief claiming that he received ineffective assistance of capital counsel because they failed to secure the services of any psychological experts to examine the petitioner and perform the neurological testing necessary to uncover substantial evidence that could have been used both during the guilt phase to negate the specific intent required for first degree premeditated murder and during the penalty phase as mitigation. The experts called during the post-conviction hearing testified that the petitioner had deficits in the left hemisphere and frontal lobe of his brain, and that these impairments “would have contributed … to his behavior at the time of the offense,” and “behave impulsively” and rendered him unable to “weigh things properly” or to deliberate. The post-conviction court found that even if it were to find trial counsel deficient for failing to order neuropsychological testing, the petitioner could not establish prejudice. The neuropsychological evaluation provided merely speculative evidence, but did not show that the petitioner committed the murder under the influence of extreme mental or emotional disturbance or that the petitioner’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was substantially impaired as a result of mental disease or defect. Because the petitioner has not met the standard of proving ineffective assistance of counsel, he was not entitled to relief on this issue. Affirmed on appeal.

More Brain Dysfunction and Mental State
Quick v. State, 2011 WL 286155 (Tex.App. 2011)
Appellant appeals a judgment convicting him of murder claiming that he could not form the requisite intent for murder because of the deficient executive functioning of his brain. The court found that the neuropsychological evidence did not support a causal link between his mental impairments and the legal definition of intentional, knowing or reckless. The court excluded the testimony of defense experts after conducting a hearing at the State’s request to determine whether appellant’s three defense experts would be allowed to testify during the defense’s case-in-chief. During that hearing defense counsel argued the experts would testify that the defendant had deficits in executive functioning that caused him to act recklessly. The expert reports stated that a “neuropsychological evaluation [of the appellant] revealed significant neurocognitive impairments. Deficits were found in … executive functioning,” specifically, “visual tracking and speed of auditory processing.” These deficits caused him to “have problems in multitasking, planning and organization, and speed and flexibility of thinking.” At the time of the incident, “[appellant's] already deficient executive brain function was totally overwhelmed, causing his [sic] to act in an extremely reckless manner. He was momentarily unable to abort his course of action and chose [sic] from the available alternative courses appropriate to the situation.” The appellate court found that the trial court did not abuse its discretion in excluding appellant’s expert testimony.

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