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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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