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Admittance of psychologist's testimony requires new trial

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The Indiana Court of Appeals ordered a new trial in a negligence suit due to a car accident after finding the trial court shouldn’t have allowed a psychologist to testify the plaintiff got a brain injury as a result of the accident.

In Henry C. Bennett, et al. v. John E. Richmond, et al., No. 20A03-0906-CV-285, Henry Bennett and his employer Schupan & Sons appealed the denial of their motion to correct error after a jury awarded John and Jennifer Richmond $200,000 in damages for John’s suit that Bennett’s negligence was the proximate cause of his injuries.

While acting within the scope of his employment, Bennett rear-ended John, which caused John’s neck and back injuries. He underwent treatment and then got a back injury while at work seven months later, which exacerbated the injuries he sustained in the car accident.

John underwent a neuropsychological evaluation with Dr. Sheridan McCabe, a psychologist, who testified John sustained a brain injury from the car accident. McCabe reviewed John’s medical records, his deposition in the instant litigation, interviewed John and his wife, and administered neuropsychological tests.

Bennett wanted to exclude McCabe’s testimony on the basis that he isn’t competent to testify regarding a medical diagnosis. The trial court allowed his testimony and also denied Bennett’s motion to correct error after the jury verdict in John’s favor.

The Court of Appeals reversed because McCabe isn’t a medical doctor, and the evaluation of a brain injury, while within the doctor’s field of expertise, is distinct from the determination of a medical cause of the injury. McCabe only testified that in his professional continuing education courses, he has touched on subjects relating to the evaluation of traumatic brain injuries and that he received referrals from two neurologists, wrote Judge Edward Najam.

No medical doctor or other qualified practitioner ever diagnosed John with a brain injury. The trial court abused its discretion in allowing McCabe to testify that John got the brain injury from the accident.

“The trial court should have exercised its discretion as gatekeeper prior to trial to exclude Dr. McCabe’s proffered causation testimony based upon his lack of qualifications to give such testimony,” Judge Najam wrote.

The admission of the testimony was not a harmless error. The evidence regarding the Richmonds’ damages other than the alleged brain injury isn’t sufficient to support the jury verdict.

The judges remanded for a new trial in which McCabe’s testimony is inadmissible absent testimony by a qualified expert that John suffered a brain injury in the car accident.
 

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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