Commentary on “A motion to exclude and the ‘fixed’ versus ‘flexible’ battery in ‘forensic’ neuropsychology”

Archives of Clinical Neuropsychology 22 (2007) 787–790 Commentary Commentary on “A motion to exclude and the ‘fixed’ versus ‘flexible’ battery in ‘forensic’ neuropsychology” Elbert W. Russell ∗ 9350 S. Dixie Highway, Suite PH3, South Miami, FL 33156, United States Accepted 6 June 2007 Abstract In a recent article Bigler criticized the utilization of the Daubert criterion in “motions to exclude”. He cited attempts to deny trial acceptability of assessment results derived from neuropsychological batteries that were not fixed or standardized. He argues that the Halstead–Reitan battery (HRB) would be the only acceptable battery. Also, he argues that the HRB is out of date, since it was originally ‘standardized’ 50 years ago. This argument commits the “archaeological fallacy”, that a procedure or information is invalid when it was originally developed some time in the past. To the contrary the HRB, along with several other fixed and standardized batteries have recently been validated as well as in the past. By contrast, flexible assessment procedures have never been validated at any time. © 2007 National Academy of Neuropsychology. Published by Elsevier Ltd. All rights reserved. Keywords: Forensic neuropsychology; Assessment; Halstead–Reitan battery; Daubert; Flexible battery; Fixed battery In a recent publication of the Archives of Clinical Neuropsychology (ACN) Erin Bigler (2007) defended the use of a “flexible” battery in forensic neuropsychology. He notes that how attorneys were utilizing articles by Hom (2003) and Russell, Russell, and Hill (2005) to support attempts to exclude flexible batteries from trial proceedings based on Daubert standard criterion (Daubert v. Merrell, 1993). He states that the Halstead–Reitan battery (HRB) is, thus, the only forensic neuropsychological assessment method that can be admitted into evidence in a trial. However, although not stated, he implies, that the HRB is no longer a valid neuropsychological procedure since it was ‘standardized’ in the 1950s. Perhaps the primary difficulty with Bigler’s argument is that he makes little effort to defend the flexible battery approach. Rather, through the attorney’s statements, he presents the case for excluding flexible or unstandardized batteries quite effectively. In the discussion section of the paper, he concentrates on criticizing the HRB rather than defending the flexible approach. Even his minimal support for flexible batteries comes from a neurology position paper (p. 49) not neuropsychological research. This leaves the impression that there is little or no scientific research which supports the flexible approach. ∗ Tel.: +1 305 667 3821. E-mail address: . 0887-6177/$ – see front matter © 2007 National Academy of Neuropsychology. Published by Elsevier Ltd. All rights reserved. doi:10.1016/j.acn.2007.06.006 788 E.W. Russell / Archives of Clinical Neuropsychology 22 (2007) 787–790 1. Various fixed and standardized batteries Initially, an important mistake in Bigler’s (2007) article should be corrected. In the abstract he states that “. . . only a ‘fixed’ battery approach, exemplified by the Halstead–Reitan battery (HRB), satisfies the Daubert criteria for admissibility; therefore, the HRB represents the only method of forensic neuropsychological assessment that should be admitted into evidence” (p. 45). This reasoning is incorrect. The HRB is not the only fixed or standardized battery that meets the Daubert criteria. Bigler is among the many neuropsychologists who are now attacking the HRB under the misapprehension that it is the only ”fixed“or standardized battery. At the present time in addition to the HRB, other standardized batteries include: The Halstead Russell Neuropsychological Evaluation System-Revised (HRNES-R) (Russell & Starkey, 2001), the Luria Nebraska Neuropsychological Battery (Golden, Hammeke, & Purisch, 1980), the Meyers Neuropsychological Battery (MNB)(Volbrecht, Meyers, & Kaster-Bundgaard, 2000) and neuropsychological information derived from any of the several co-normed intelligence tests. 2. The capability of the HRB Bigler refers to the paper on neuropsychology published by the American Academy of Neurology (1996) as stating the following ”The Halstead–Reitan battery was developed specifically to detect “organic” dysfunction and differentiate between patients with and without brain damage. . .” (p. 49). Reitan and Wolfson (1996) answered this statement by explaining that the primary purpose of the HRB was never limited to ascertaining the existence of brain damage. Their work went considerably beyond this determination to assess the location and diagnosis of brain pathology (Reitan & Wolfson, 1993, pp. 23–54). Assessing the location and diagnosing a lesion was accomplished by evaluating the patterns of test impairment. Lezak, Howieson, and Loring (2004, pp. 153–155) recognize the need for pattern analysis. However, unlike Reitan, they advocate the employment of a flexible test battery in order to recognize these patterns. In contrast, a major reason for a fixed battery is that this type of battery permits the recognition of patterns based on years of research and experience. 3. The accuracy of self-report scales Bigler defends the use of subjective self-reports used in flexible batteries on the basis of their reliability. However, the reliability of self-reports was examined in Reitan and Wolfson’s (1997) review of the self-report and subjective studies. This comprehensive review found that subjective and self-report scales are unreliable in any situation in which the patient was able to gain from exaggeration or misstatements. This was especially true in forensic situations. To date, I am not aware of an effective rebuttal to this review. 4. The archaeological fallacy The core of Bigler’s (2007) argument appears to be that the HRB is out of date and therefore by implication it is no longer a valid procedure. Much of his article was devoted to describing the HRB’s ‘standardization’ in the 1950s and the effects related to it due to neurological advances which have occurred since the 1950s. This type of argument commits the ‘archaeological fallacy’. A fallacy is a general way of arguing that it is logically incorrect (Cohen & Nagel, 1939, pp. 376–390). An archaeological fallacy occurs when a procedure or information derived from a procedure is considered to be invalid simply due to age. It is termed an “archaeological fallacy” because in order to support this argument a neuropsychologist must excavate earlier material. This earlier material is used to indicate that the procedure or information was either initially poorly supported or it is no longer applicable. The fallacy contends that although the procedure may have originally been valid, since it is no longer current, it is no longer valid. Intervening research supporting the method or information is ignored or deprecated. In addition, no research questioning the method or information is presented. The hi (...truncated)