A motion to exclude and the ‘fixed’ versus ‘flexible’ battery in ‘forensic’ neuropsychology: Challenges to the practice of clinical neuropsychology

Archives of Clinical Neuropsychology 22 (2007) 45–51 A motion to exclude and the ‘fixed’ versus ‘flexible’ battery in ‘forensic’ neuropsychology: Challenges to the practice of clinical neuropsychology Erin D. Bigler a,b,∗ a Departments of Psychology and Neuroscience, 1001 SWKT, Brigham Young University, Provo, UT 84602, United States b Department of Psychiatry and the Utah Brain Institute, University of Utah, United States Accepted 12 June 2006 Abstract Two recent publications in Archives of Clinical Neuropsychology (ACN) have been used by defense attorneys as the centerpiece for an argument that only a ‘fixed’ battery approach, exemplified by the Halstead–Reitan battery (HRB), satisfies the Daubert criteria for admissibility; and therefore, the HRB represents the only method of forensic neuropsychological assessment that should be admitted into evidence. Since this case has important implications for the practice of clinical neuropsychology in the United States, this ‘Motion to Exclude’ and its rationale are presented, which demonstrates how the legal profession uses neuropsychological literature. The critical issues of this argument for clinical neuropsychological practice are reviewed. © 2006 National Academy of Neuropsychology. Published by Elsevier Ltd. All rights reserved. Keywords: Forensic neuropsychology; Clinical neuropsychology; Halstead–Reitan battery; Daubert; Fixed battery; Flexible battery 1. Forensic neuropsychology and the ‘fixed’ battery: challenges to the practice of clinical neuropsychology The 2003 Archives of Clinical Neuropsychology (ACN) article by Hom asks: “Forensic Neuropsychology: Are we there yet?” An apropos question, since survey studies of the last 15 years clearly demonstrate the ascendancy of forensic work in the clinical practice of neuropsychology (Kanauss, Schatz, & Puente, 2005; Sweet, King, Malina, Bergman, & Simmons, 2002; Sweet, Moberg, & Suchy, 2000; Sweet, Nelson, & Moberg, 2006). Indeed, the topic of forensic neuropsychology has become commonplace in both journal and text (Heilbronner, 2004, 2005; Larrabee, 2005). As such, there can be little debate that forensics has become a very important part of contemporary clinical neuropsychology. Implications of a professional standard in the forensic practice of clinical neuropsychology could be construed from the Hom (2003) article, implications that potentially have broad reaching inferences for the entire practice of clinical neuropsychology and forensic applications of neuropsychology in the United States. Hom (2003) puts forth the argument that the ‘fixed-battery’ approach using the original Halstead–Reitan battery (HRB, Reitan, 1955a,b) passes the legal Daubert v. Merrell Dow Pharmaceuticals standard (see Faigman & Monahan, 2005) and, therefore, may be the only set of neuropsychological tests that reach an admissible standard within a legal setting. If following a ‘Daubert’ ∗ Tel.: +1 801 422 4289; fax: +1 801 422 0602. E-mail address: erin . 0887-6177/$ – see front matter © 2006 National Academy of Neuropsychology. Published by Elsevier Ltd. All rights reserved. doi:10.1016/j.acn.2006.06.019 46 E.D. Bigler / Archives of Clinical Neuropsychology 22 (2007) 45–51 challenge the court ruled that only HRB data as a ‘fixed’ battery approach were admissible for a neuropsychologist to base her/his opinions that could have far-reaching implications for the practice of neuropsychology. Such instances have begun to occur (see McKinzey & Ziegler, 1999; Reed, 1996; Stern, 2001). If accepted, any ‘flexible’ battery approach (see Benton, 1992) would not be permissible. This position has recently been articulated by Russell, Russell, and Hill (2005) in a review also published in ACN where they state, “In summary, in forensic situations, the expert witness using a standardized battery is the only [italics added] psychologist who can provide dependable testimony interpreting psychometric test data as a whole to the court. The expert witness who utilizes a flexible battery cannot [italics added] provide dependable evidence derived from the battery as a whole . . . (p. 792).” Thus, the issue raised by Hom (2003), and added upon by Russell et al. (2005) statements, could be used as the centerpiece for a legal argument to exclude testimony on neuropsychological test results except for those based on a ‘fixed-battery approach’ (i.e., the HRB). Indeed these publications have recently been used in a ‘Motion to Exclude’ psychological and neuropsychological testimony using the very arguments put forth by these authors. Understanding how the legal profession utilizes neuropsychological publications and how legal arguments are crafted from the writings of neuropsychologists has been a topic rarely addressed in the neuropsychological literature. However, what legal practitioners do with published neuropsychological research and writing has far reaching implications for the practice of clinical neuropsychology in the United States if aspects of neuropsychological practice are restricted by courts. How the lay public and legal profession interprets neuropsychological literature may be far different than the original intent of the neuropsychological publication. Much of traditional neuropsychological research has been done in the context of the scientist–practitioner model addressing both basic and applied research issues of importance to clinical neuropsychology. However, when the audience is no longer comprised of neuropsychologists and the debate moves over to the legal arena, with completely different standards and rules, how neuropsychological publications are interpreted and used for legal purposes becomes a very different objective. In a legal setting, various rules of procedure apply as to what the court decides is admissible for a jury to review. One legal maneuver that attorney’s can use is the ‘Motion to Exclude’. Since this legal maneuver was an attempt to regulate what is permissible for a jury to hear from a neuropsychologist, it is informative to read some of the actual legal positions and writings of this petition to exclude. The issue in this report is not the neuropsychological findings in the case, which will not be offered or discussed but rather the ‘legal’ admissibility of a flexible battery approach to clinical assessment of a patient with medically documented neurological abnormalities, including abnormal neuroimaging findings, thereby objectively documenting presence of underlying ‘brain damage’. This article will center solely on how neuropsychological literature was used by attorneys in an attempt to exclude neuropsychological testimony based on a flexible neuropsychological assessment approach. I was the retained expert by the plaintiff. The patient had a treating clinical psychologist as well. Both of us used a flexible battery approach in evaluating this patient. The defense-retained neuropsychologist administered the original HRB, using the original HRB cut-off scores, (...truncated)