comment - houstonlawreview.org more than it does emotional and invisible injuries.8 the 3. ......

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COMMENT

EGGSHELL MINDS AND INVISIBLE INJURIES: CAN NEUROSCIENCE CHALLENGE LONGSTANDING TREATMENT OF

TORT INJURIES?∗

TABLE OF CONTENTS

I.� �INTRODUCTION ...................................................................... 930�

II.� �SETTING UP THE PROBLEM ................................................... 933�A.� Tort Law�s Treatment of the Three Categories

of Harm ......................................................................... 933�1.�� Physical Injuries .................................................... 933�2. Emotional Harms .................................................. 934�3. Invisible Injuries .................................................... 935�

B.� The Problem of Proving Pain ........................................ 937�

III.� �BACKGROUND ON NEUROSCIENCE ........................................ 939�A.� Advancements in Neuroscience ..................................... 940�

1. How the Technology Works .................................... 941�2. Two Primary Approaches to Help Tort Litigants .. 942�

B.� Strengths of the Technology .......................................... 944�C.� Weaknesses of the Technology ....................................... 944�D.� The Future of Neuroscience ........................................... 946�

∗ This Comment received the King & Spalding Award for Best Student Comment Written for the Houston Law Review. I first would like to thank my family and Angeles for their continuous encouragement and support throughout all my legal endeavors. In addition, I would like to thank Professor Geraldine Moohr for pointing me to the intriguing area of neuroscience. Finally, I thank Professor Susan Rachlin for helping improve my legal writing skills; Professors Owen D. Jones, Jeffrey D. Schall, and Francis X. Shen for providing access to an early version of their forthcoming textbook, Law and Neuroscience; Professor Meredith Duncan and Frank Carroll for their insights on an earlier draft of this Comment; and the talented editors of the Houston Law Review.


930 HOUSTON LAW REVIEW [50:3

IV.� �NEUROSCIENCE IN THE COURTROOM .................................... 947�A.� Admissibility of Neuroscientific Evidence .................... 948�

1.�� Will Neuroscientific Evidence Be Admitted Under the General Acceptance Test? ...................... 948�

2. Will Neuroscientific Evidence Be Admitted Under the Reliability Test? .................................... 949�

3. Not All Neuroscience Is Alike ................................. 950�B.� The Effect of Neuroscience on a Jury ............................ 951�C.� Neuroscience�s Application Outside of Tort Law .......... 952�

V.� �NEUROSCIENCE�S POTENTIAL IMPACT ON TORT LAW ........... 954�A.� Difficulty Justifying Drawn Lines Between

Categories of Harms ...................................................... 954�B.� Current Damage Calculation Methods Are Flawed ..... 955�C.� Caveats .......................................................................... 957�

1. Causation Burden .................................................. 957�2. Neuroscience Will Work Both Ways ....................... 958�

D.� Recommendations and Predictions ............................... 959�

VI.� �CONCLUSION ......................................................................... 962�

I. INTRODUCTION

Imagine three different situations involving a malfunctioning elevator door owned and operated by a hotel. In the first situation, as a guest is walking out of the elevator, the door abruptly closes, knocking him over. The guest is physically frail, and as a result of the fall, he breaks his hip. He subsequently sues the hotel for negligence. Even though a reasonable person would not have suffered a broken hip in this situation, because of the �eggshell skull� rule, this fact will have no effect on the guest�s claim.1 Assuming the other elements of negligence are established, the hotel will be liable for the full extent of the injury.2

In the second situation, another guest suffers from claustrophobia. Comparing this guest to the first situation, we could say he has an �eggshell mind.� This time, the door malfunctions before the guest walks out, trapping him inside. He

1. See RESTATEMENT (SECOND) OF TORTS § 461 cmt. a (1965) (�A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act is negligent.�). 2. Id.; see also Dallas v. F.M. Oxford Inc., 552 A.2d 1109, 1110, 1113 (Pa. Super. Ct. 1989) (holding the owners and operators of an elevator liable for negligence when the elevator door knocked over a seventy-five year old man, fracturing his hip).


2013] EGGSHELL MINDS 931

suffers a panic attack, traumatic neurosis, and soon after develops post-traumatic stress disorder. Following the incident, he sues the hotel for negligent infliction of emotional distress. Although the guest subjectively suffered severe emotional distress, he will have to prove in addition that an ordinary person would have suffered the same distress.3 Thus, despite the hotel committing the same negligent conduct as it did in the first situation, it will likely not be liable in this situation.4

The third situation is the same as the first. However, instead of the guest breaking his hip, he develops a continuous sharp pain in his hip following the fall. This chronic pain is still a �physical� injury, yet it is not the same as a broken hip. It is an �invisible� injury.5 Although the guest appears outwardly unharmed, he still suffers pain from within. Despite the injury being a physical one, it will be difficult to obtain objective verification of it, unlike a broken hip.6 Therefore, similar to the second situation, the guest will have a difficult time recovering.7

These examples illustrate tort law�s treatment of various types of injuries. As demonstrated, the law favors physical injuries more than it does emotional and invisible injuries.8 The

3. See Betsy J. Grey, Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims, in 13 LAW AND

NEUROSCIENCE 203, 208�09 (Michael Freeman ed., 2011) (explaining that subjective and objective tests are used to prove negligent infliction of emotional distress cases). 4. See Bass v. Nooney Co., 646 S.W.2d 765, 773 (Mo. 1983) (en banc) (expressing doubt that a woman who sued for negligent infliction of emotional distress after being trapped in an elevator could prove that an ordinary person would suffer serious emotional distress); see also Allen v. Otis Elevator Co., 563 N.E.2d 826, 833 (Ill. App. Ct. 1990) (rejecting plaintiffs� claim for negligent infliction of emotional distress because the anxiety and fear they suffered after being trapped in an elevator did not amount to a physical injury or illness). 5. This phrase is frequently used by lawyers and journalists. David L. Goldin, Breaking the Silence on Brain Injury, SAN DIEGO UNION-TRIBUNE, Oct. 17, 2007, at B7; Kristin Henderson, TBI: The Invisible Injury, MILITARY.COM (Mar. 15, 2007), http://webcache.googleusercontent.com/search?q=cache:kku8FkLmXkJ:www.military.com/opinion/0,15202,128806,00.html%3FESRC%3Deb.nl+&cd=1&hl=en&ct=clnk&gl=us. 6. A broken hip can be objectively verified by an X-ray, which is routinely permitted in court. See, e.g., State v. Senegal, 333 So. 2d 639, 640 (La. 1976) (describing the foundation necessary to admit X-rays). Chronic pain, on the other hand, cannot be detected by X-ray. Pain is processed in the brain, and an X-ray cannot take detailed enough pictures of the brain to visibly show that process. MATT CARTER & JENNIFER C. SHIEH, GUIDE TO RESEARCH TECHNIQUES IN NEUROSCIENCE 3 (2010). 7. See Michael Finch, Law and the Problem of Pain, 74 U. CIN. L. REV. 285, 293�94 (2005) (observing that courts have difficulty drawing distinctions between feigned injuries and real injuries that cannot be explained). 8. See Grey, supra note 3, at 203 (�[E]motional harm [is] treated as a second-class citizen.�). In addition to the tort context, many areas of the law distinguish emotional injuries and give them unequal treatment. See, e.g., I.R.C. § 104 (2006) (prescribing that damage awards for emotional distress are subject to tax, while damage awards for physical injuries are not); Francis X. Shen, Monetizing Memory Science: Neuroscience and



reasons for this disparate treatment are valid ones. Emotional and invisible injuries are particularly difficult to prove. Moreover, because litigants have incentives to get higher damage awards, they can, and do, lie about their injuries and fake their pain.9 Thus, courts will deny these recoveries �[b]ecause of the fear of fictitious or trivial claims, [and] distrust of the proof offered.�10 However, �[t]he mere fact that a person can offer no physical evidence of pain . . . does not mean that his reported symptoms are disingenuous.�11

What if there was a technology that could objectively measure a person�s pain levels? Advancements in neuroscience are moving closer to that possibility. Neuroscience is gaining huge traction in the law.12 Soon enough, courts will be faced with tort litigants seeking to introduce neuroimaging evidence as objective proof of pain that has traditionally been unverifiable. However, there are a number of questions and concerns surrounding neuroscience and its potential legal use, such as how accurate the technology is and whether courts will admit neuroscience into evidence.

This Comment addresses those issues and analyzes the effect, if any, that neuroscience will have on tort law. It separates pain into three broad categories: physical pain, emotional harm, and invisible injuries. Focusing on emotional and invisible injuries, this Comment discusses whether neuroscience will undermine the current approach of distinguishing these injuries from physical ones. Part II provides a general overview of physical, emotional, and invisible injuries in tort law and explains the difficulties for litigants to prove their pain. Part III briefly describes the history and recent advancements in neuroscience, presenting the strengths and weaknesses of the technology. Part IV analyzes evidentiary questions surrounding neuroscience, including whether neuroscientific evidence will have an unfair prejudicial effect on a jury and whether it will be admissible under rules on expert evidence. Part V concludes with how the Future of PTSD Litigation, in MEMORY AND LAW 326 (Lynn Nadel & Walter Sinnott-Armstrong eds., 2012) (�Whether it is statutory law generated by legislatures, common law interpreted by courts, or insurance contracts agreed to between private parties, the law in many instances requires one to carve out purely mental . . . injury.�). 9. Adam J. Kolber, Pain Detection and the Privacy of Subjective Experience, 33 AM. J.L. & MED. 433, 441 (2007). 10. RESTATEMENT (SECOND) OF TORTS § 46 cmt. b (1965). 11. Kolber, supra note 9, at 442. 12. THE ROYAL SOC�Y, BRAIN WAVES 4: NEUROSCIENCE AND THE LAW 33 (2011), available at http://royalsociety.org/uploadedFiles/Royal_Society_Content/policy/projects/ brain-waves/Brain-Waves-4.pdf.



neuroscience could affect tort law and whether it should alter the approach to emotional and invisible injuries.

II. SETTING UP THE PROBLEM

A. Tort Law�s Treatment of the Three Categories of Harm

1. Physical Injuries. American courts have long favored tort claims alleging physical harm rather than emotional harm.13 Thus, physical harms are the most accepted of the three categories of harm. Of course, a plaintiff who suffers a physical injury will still have to prove the defendant�s liability.14 But the existence of a physical injury will be less in contention than the other two types of harm.15 Moreover, plaintiffs with physical injuries benefit from favorable legal doctrines such as the eggshell skull rule.16

Under the eggshell skull rule, the defendant takes the plaintiff as he finds him.17 The seminal case announcing the eggshell skull rule is Vosburg v. Putney.18 In Vosburg, the defendant kicked the plaintiff in the shin.19 Even though the kick �was so slight that the plaintiff did not actually feel it,� it aggravated a pre-existing infection that the plaintiff had in his tibia.20 As a result, the plaintiff suffered serious injury that would not have occurred to a person without a pre-existing infection.21

13. Grey, supra note 3, at 207. 14. RESTATEMENT (SECOND) OF TORTS § 433B (1965) (�[Generally], the burden of proof that the tortious conduct of the defendant has caused harm to the plaintiff is upon the plaintiff.�). 15. See Kolber, supra note 9, at 440 (�[W]hen a radiologist reviews a simple X-ray image of a severely fractured leg, he can typically report with great confidence that the patient is in pain.�); infra Part II.B. 16. RESTATEMENT (SECOND) OF TORTS § 461. Emotional injuries also can receive the benefit of the eggshell skull rule once they pass the objective barrier. See Grey, supra note 3, at 209 (�[O]nce the threshold is reached, the defendant can be responsible for damages to the extremely sensitive plaintiff.�). However, courts often limit damage recoveries for mental defects by reasoning that the defects may have developed without defendants� tortious conduct. See, e.g., Steinhauser v. Hertz Corp., 421 F.2d 1169, 1173 (2d Cir. 1970) (�Although the fact that [plaintiff] had latent psychotic tendencies would not defeat recovery if the accident was a precipitating cause of schizophrenia, this may have a significant bearing on the amount of damages.�). 17. E.g., Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 494 (5th Cir. 2002); Lancaster v. Norfolk & W. Ry. Co., 773 F.2d 807, 822 (7th Cir. 1985). 18. Vosburg v. Putney, 50 N.W. 403 (Wis. 1891); see Stoleson v. United States, 708 F.2d 1217, 1221 (7th Cir. 1983) (recognizing Vosburg as the leading case on the eggshell skull rule). 19. Vosburg, 50 N.W. at 403. 20. VICTOR E. SCHWARTZ, KATHRYN KELLY & DAVID F. PARTLETT, PROSSER, WADE

AND SCHWARTZ�S TORTS 35 (12th ed. 2010); Vosburg, 50 N.W. at 403. 21. Vosburg, 50 N.W. at 403�04.



Nevertheless, the court held the defendant responsible for the entire injury.22 The court stated that a �wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him.�23 Thus, under the eggshell skull rule, it is irrelevant how a reasonable person would react to a physical injury.24 This clearly puts the burden of physically frail plaintiffs on defendants.25

2. Emotional Harms. Damages for emotional harms, on the other hand, are more difficult to recover. This is especially true for pure emotional injuries�injuries that do not have an accompanying physical injury.26 This category includes actions to recover for post-traumatic stress disorder (PTSD), and claims of intentional infliction of emotional distress (IIED) or negligent infliction of emotional distress (NIED).27 The term �emotional distress� is a broad term that includes many kinds of emotional or psychological injuries.28 Courts have held that the emotional distress torts cover depression and eating disorders, among other things.29

In order to recover for IIED, a plaintiff must prove that a defendant�s �extreme and outrageous conduct intentionally or recklessly cause[d] severe emotional distress.�30 Extreme and

22. Id. at 404. 23. Id. 24. See Vaughn v. Nissan Motor Corp., 77 F.3d 736, 738 (4th Cir. 1996) (�The tortfeasor�s duty of care is measured by the ordinary person, but the plaintiff�s injuries may not be.� (footnote omitted)). 25. See RICHARD A. POSNER, TORT LAW 27 (1982) (questioning if putting the burden on the wrongdoer is the most efficient way to avoid injury). 26. See, e.g., Godette v. Stanley, 490 F. Supp. 2d 72, 81�82 (D. Mass. 2007) (holding that defendants could not be liable for NIED absent any objective evidence of physical manifestation of mental distress); Corvello v. New England Gas Co., 460 F. Supp. 2d 314, 327 (D.R.I. 2006) (�The absence of any allegation that the plaintiffs have physical symptoms resulting from their emotional distress . . . is fatal to their intentional infliction claim.�); Crisci v. Sec. Ins. Co. of New Haven, Conn., 426 P.2d 173, 178�79 (Cal. 1967) (�The commonest example of the award of damages for mental suffering . . . is probably where the plaintiff suffers personal injuries in addition to mental distress . . . .�). 27. See, e.g., Goolsby v. Family Dollar Stores of Ala., Inc., 689 So. 2d 104, 106 (Ala. Civ. App. 1996) (treating PTSD as a mental injury); John J. Kircher, The Four Faces of Tort Law: Liability for Emotional Harm, 90 MARQ. L. REV. 789, 807�08 (2007) (discussing the emergence of IIED and NIED as means of recovering for pure emotional damages). 28. Strickland v. Jewell, 562 F. Supp. 2d 661, 676 (M.D.N.C. 2007) (stating that IIED covers �any emotional or mental disorder . . . which may be generally recognized and diagnosed by professionals trained to do so�) (quoting Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 395 S.E.2d 85, 97 (N.C. 1990))). 29. Id.; see also Brengle v. Greenbelt Homes, Inc., 804 F. Supp. 2d 447, 456 (D. Md. 2011) (holding that distress that causes a plaintiff to suffer irregular eating and sleeping habits and difficulty interacting with others can form the basis of an IIED claim); Nagata v. Quest Diagnostics Inc., 303 F. Supp. 2d 1121, 1129 (D. Haw. 2004) (concluding that depression can be a form of severe emotional distress). 30. RESTATEMENT (SECOND) OF TORTS § 46 (1965).



outrageous conduct must be �so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.�31 Moreover, emotional distress will only be severe if a reasonable person could not be expected to endure it.32 This establishes a difficult burden of proof for plaintiffs. When discussing the tort, the Tenth Circuit Court of Appeals stated, �To use an apt colloquialism, a plaintiff attempting to prove this claim has a hard row to hoe.�33

The negligent version of the tort does not fare any better. Similar to IIED, courts generally apply an objective test, requiring proof that a reasonable person would suffer severe distress under the circumstances, in addition to a subjective requirement that the plaintiff in fact suffered severe distress.34 However, NIED is even more limiting than IIED.35 While a plaintiff can recover for emotional distress by itself under IIED, in a majority of states, physical injury is a required element for NIED.36 A physical manifestation of the emotional distress will often satisfy this requirement.37 The reasoning behind this limitation is that physical signs of distress will give �a sufficient basis for the trial court[s] to determine [these are] not . . . fraudulent claim[s].�38 This physical injury requirement is one of several different versions of NIED, which have each placed a variety of limitations on recovery.39 Some states limit NIED by requiring a physical impact to the plaintiff�s person in order to recover.40 Others require that a plaintiff be in the �zone of danger� when the tortious conduct occurred, which is based on Justice Cardozo�s famous opinion in Palsgraf v. Long Island Railroad Co.41 Therefore, given these limitations, when an eggshell mind plaintiff sues, the consequences of having a fragile psyche are borne by the plaintiff himself.

3. Invisible Injuries. Invisible injuries, the third category of harms, are a hybrid of the first two categories; they have characteristics of both physical injuries and emotional injuries. The injuries are �microscopic and do not show up on standard imaging studies, such as [an] MRI or CT scan[,] and the

31. Id. § 46 cmt. d. 32. Id. § 46 cmt. j. 33. Meyer v. Conlon, 162 F.3d 1264, 1275 (10th Cir. 1998). 34. Grey, supra note 3, at 208�09. 35. Compare RESTATEMENT (SECOND) OF TORTS § 436A, with id. § 46 cmt. k. 36. E.g., Ray v. Am. Airlines, Inc., 609 F.3d 917, 923 (8th Cir. 2010) (applying Texas law); Kircher, supra note 27, at 812. 37. Kircher, supra note 27, at 813. 38. Hawes v. Germantown Mut. Ins. Co., 309 N.W.2d 356, 360 (Wis. Ct. App. 1981). 39. See Kircher, supra note 27, at 810�16. 40. Id. at 810. 41. Id. at 815 (discussing Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928)).



survivor appears outwardly �normal.��42 This category includes injuries such as traumatic brain injury (TBI), mild traumatic brain injury (MTBI), and chronic pain or fibromyalgia.43

TBI typically occurs when there is a sudden trauma to the brain.44 However, physical trauma to the head is not the only way to develop brain injury.45 Despite this injury being referred to as a �silent epidemic,� the statistics on TBI and MTBI are staggering.46

The CDC (Centers for Disease Control and Prevention) estimates that, in the United States, 1.7 million people suffer a TBI each year.47 Of those people, 52,000 die and 275,000 are hospitalized.48 Moreover, the number of people who receive no care for these brain injuries is unknown.49 Failure to report TBI and MTBI can be quite common because of the embarrassment and negative stigma attached to these injuries.50

Chronic pain, unlike acute pain, is a pain that typically persists for long periods of time.51 �Pain signals keep firing in the nervous system for weeks, months, even years.�52 Fibromyalgia is a specific type of chronic pain, and likely the most prevalent

42. David L. Goldin, �Mild� Brain Injury Litigation: Making the Invisible Visible, L. OFF. DAVID L. GOLDIN, http://www.headlaw.com/Articles/brain-injury-litigation.htm (last visited Jan. 26, 2013); see also Emily Gilmore & Steven Karceski, Traumatic Brain Injury, NEUROLOGY, Feb. 23, 2010, at e28. 43. Facts for Physicians About Mild Traumatic Brain Injury (MTBI), CENTERS FOR

DISEASE CONTROL & PREVENTION, http://www.cdc.gov/ncipc/pub-res/tbi_toolkit/physicians/mtbi/mtbi.pdf (last visited Jan. 26, 2013) (�Diagnosing MTBIs can be challenging because symptoms often are common to other medical problems, and onset of symptoms may occur days, weeks, or months after the initial injury.�); Fibromyalgia, PHYSICIAN�S DESK REFERENCE, http://www.pdrhealth.com/ diseases/fibromyalgia (last visited Feb. 1, 2013) (�Fibromyalgia has only recently been recognized as a distinct physical condition.�). Despite these types of injuries being physical, they often are accompanied by psychological changes. See AM. PSYCHIATRIC

ASS�N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 666 (4th ed. 2000) (noting that changes in personality can manifest following a brain injury). 44. NINDS Traumatic Brain Injury Information Page, NAT�L INST. OF

NEUROLOGICAL DISORDERS & STROKE, http://www.ninds.nih.gov/disorders/tbi/tbi.htm (last visited Jan. 15, 2012). 45. See Mild Brain Injury, BRAIN INJURY ASS�N OF MINN., https://www.braininjurymn.org/library/archive/mildBI.pdf (last visited Feb. 1, 2013) (listing various causes of MTBI). 46. Goldin, supra note 5. 47. MARK FAUL ET AL., CTRS. FOR DISEASE CONTROL & PREVENTION, TRAUMATIC

BRAIN INJURY IN THE UNITED STATES 13 (2010), http://www.cdc.gov/TraumaticBrain Injury/ pdf/ blue_book.pdf. 48. Id. at 13�14. 49. Goldin, supra note 5. 50. Id. 51. NINDS Chronic Pain Information Page, NAT�L INST. NEUROLOGICAL DISORDERS

& STROKE, http://www.ninds.nih.gov/disorders/chronic_pain/chronic_pain.htm (last visited Feb. 1, 2012). 52. Id.



type.53 Fibromyalgia has been referred to as �one of the most controversial conditions in the history of medicine.�54 �Perhaps the saddest part of [these conditions] is not the relentless pain and fatigue experienced by those who have it, but that its sufferers are often not believed.�55

The practice of �malingering� does not help others believe the claims of those with invisible injuries. Malingering is the deliberate feigning or exaggerating of injuries or symptoms, often motivated by financial gain.56 Due to the prevalence of the practice, �an insurer may start with the assumption that people with symptoms of [fibromyalgia] are faking or exaggerating their symptoms.�57 Malingering is common for illnesses such as fibromyalgia, chronic pain, and PTSD.58 Unfortunately, health professionals have difficulty detecting malingering.59 Thus, malingerers pose a large problem for plaintiffs with actual pain by increasing an already difficult challenge of proving pain.

B. The Problem of Proving Pain

Tort law is designed primarily to discourage wrongful conduct and to compensate injured parties in a way that restores them to their original condition, theoretically �making them whole.�60 Monetary awards are the primary tool used to accomplish this.61 Accordingly, upon concluding a particular defendant is liable, a jury must assign a dollar amount to the plaintiff�s injury.62

This can be a more difficult task than it appears. How can a jury possibly assign a dollar amount to another person�s pain? Pain is an inherently private experience; it is frequently difficult

53. Id.; 99 AM. JUR. 3D Proof of Facts § 1 (2008). 54. 99 AM. JUR. 3D Proof of Facts § 1 (quoting Michael Finch, Law and the Problem of Pain, 74 U. CIN. L. REV. 285, 287 (2005)) (internal quotation marks omitted). 55. Id. § 6 (quoting Cassie Springer-Sullivan, The Resurrection of �Female Hysteria� in Present-Day ERISA Disability Law, 20 BERKELEY J. GENDER L. & JUST. 67, 68 (2005)). 56. Id. 57. Id. 58. Id. 59. Id. Further, because of the potential for bias, it is difficult to rely solely on the testimony of experts who do agree to express their opinion. See Ladner v. Higgins, Inc., 71 So. 2d 242, 244 (La. Ct. App. 1954) (�In response to the question: �Is that your conclusion that this man is a malingerer?� Dr. Unsworth responded: �I wouldn�t be testifying if I didn�t think so, unless I was on the other side, then it would be a post traumatic condition.��). 60. SCHWARTZ, KELLY & PARTLETT, supra note 20, at 1�2. 61. Id. at 535. 62. A judge typically will not intervene in a jury�s finding on damages. See id. (�Most jurisdictions allow new trials only if the award is so high or low that it �shocks the conscience.��).



to express and hard for others to understand.63 Moreover, some theorize that people are inherently doubtful of another person�s experience of pain.64 In addition to the inexpressibility of pain and the inherent doubts of others, legal obstacles exist to proving one�s tort damages.65 Thus, proving damages can be an uphill battle for plaintiffs, even arising out of traditional physical pain.

This difficulty further increases when dealing with invisible injuries and pure emotional harm.66 Often, a lack of physical symptoms will greatly limit chances of recovery.67 A plaintiff�s ability to quantify this type of injury is important not only to prove certainty and extent of damages, but also to prove that the harm or injury in fact exists.68 Because emotional pain and invisible injuries are more difficult to quantify and verify than physical injuries, they are subject to increased scrutiny and doubt.69 This can lead courts to completely deny recovery or to reduce damage awards to an

63. See ELAINE SCARRY, THE BODY IN PAIN 4 (1985) (�[W]hen one speaks about �one�s own physical pain� and about �another person�s physical pain,� one might almost appear to be speaking about two wholly distinct orders of events. For the person whose pain it is, it is �effortlessly� grasped (that is, even with the most heroic effort it cannot not be grasped); while for the person outside the sufferer�s body, what is �effortless� is not grasping it . . . .�). 64. See id. (�[F]or the person in pain, so incontestably and unnegotiably present is it that �having pain� may come to be thought of as the most vibrant example of what it is to �have certainty,� while for the other person it is so elusive that �hearing about pain� may exist as the primary model of what it is �to have doubt.��); E. Valentine Daniel, The Individual in Terror, in EMBODIMENT AND EXPERIENCE 229, 237, 243 (Thomas J. Csordas ed., 1994) (illustrating how tortured inmates refused to believe fellow inmates were being tortured, despite being in the same camp and hearing their screams). 65. For example, tort damages typically have to be proven with some level of certainty. RESTATEMENT (SECOND) OF TORTS § 912 (1979). 66. Although the Restatement points out that �there is no rule of certainty� for recoverable emotional distress, when the emotional distress is �excessive or unusual,� the rules for proof of the existence of that claim are applicable. Id. §§ 905 cmt. i, 912 cmts. a, b. 67. See Adam J. Kolber, The Experiential Future of the Law, 60 EMORY L.J. 585, 621�22 (2011) (discussing barriers to recovery for negligently inflicted emotional distress). 68. In contrast, in the case of a physical injury, there are many ways to objectify a person�s pain. For instance, if a construction worker breaks his leg, in addition to a simple X-ray, he can present evidence of medical bills incurred, lost wages, and loss of earning capacity if he is unable to perform physical labor in the future. SCHWARTZ, KELLY &

PARTLETT, supra note 20, at 546�49. 69. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004) (discussing two physicians who concluded the plaintiff�s �[s]ubjective complaints far outweigh objective findings� and that her symptoms were �scarcely credible� (internal quotation marks omitted)); Sarchet v. Chater, 78 F.3d 305, 306�07 (7th Cir. 1996) (Posner, J.) (commenting that all the symptoms of fibromyalgia are �easy to fake� and that it is �difficult to determine the severity of [the] condition because of the unavailability of objective clinical tests�); see also RESTATEMENT (SECOND) OF TORTS § 436A cmt. b (1965) (�[E]motional disturbance may be too easily feigned, depending, as it must, very largely upon the subjective testimony of the plaintiff; and that to allow recovery for it might open too wide a door for false claimants who have suffered no real harm at all.�).



arbitrary amount.70 However, perhaps with recent advancements in neuroscience, the stigma of invisible physical injuries and emotional injuries will begin to erode, and plaintiffs who have suffered harm will have more than just their words to express it.

III. BACKGROUND ON NEUROSCIENCE

Doctors, biologists, psychologists, philosophers, and others have debated the capabilities of neuroscience for years.71 Lawyers are starting to join that debate, as neuroscience has slowly been seeping its way into the legal field. Neuroscience is frequently seen in the criminal context, in which defendants use neuroscientific evidence in an attempt to prove their innocence or to mitigate punishment.72 It has been used in contract cases to void contracts due to mental incapacity.73 Even a U.S. Supreme Court Justice could not resist citing neuroscience findings.74

Many scholars claim that neuroscience will eventually change every aspect of the law.75 Some feel confident enough to

70. See Babby v. City of Wilmington Dep�t of Police, 614 F. Supp. 2d 508, 512�13 (D. Del. 2009) (awarding a plaintiff $1.00 in damages where a jury found the plaintiff had proven �damages for emotional pain, suffering, or mental anguish�); Richardson v. Chapman, 676 N.E.2d 621, 633�34 (Ill. 1997) (McMorrow, J., dissenting) (criticizing the majority�s decision to order a remittitur of a pain and suffering award based on the conclusion that the injury healed and was relatively minor, claiming �the majority substitute[d] its own subjective judgment for the jury�s evaluation of the evidence�); see also Mark Geistfeld, Placing a Price on Pain and Suffering: A Method for Helping Juries Determine Tort Damages for Nonmonetary Injuries, 83 CALIF. L. REV. 773, 783 (1995) (noting that pain and suffering awards are arbitrary largely due to jurors� uncertainty with how to calculate them). 71. RAYMOND TALLIS, APING MANKIND: NEUROMANIA, DARWINITIS AND THE

MISREPRESENTATION OF HUMANITY 5�13 (2011). 72. See, e.g., McMurtrey v. Ryan, 539 F.3d 1112, 1120, 1125 (9th Cir. 2008) (holding there was sufficient evidence to conclude the defendant was incompetent based on medical testimony that included brain images); People v. Kraft, 5 P.3d 68, 98 (Cal. 2000) (noting the defendant produced PET scans as mitigating evidence during sentencing for murder); People v. Weinstein, 591 N.Y.S.2d 715, 717 722�24 (Sup. Ct. 1992) (finding PET scans admissible to show the defendant lacked criminal responsibility for killing his wife); see also O. Carter Snead, Neuroimaging and the �Complexity� of Capital Punishment, 82 N.Y.U. L. REV. 1265, 1319�21 (2007) (discussing the general push for consideration of neuroscientific evidence in the mitigation phase of capital sentencing). 73. Van Middlesworth v. Century Bank & Trust Co., No. 215512, 2000 WL 33421451, at *2�3 (Mich. Ct. App. May 5, 2000) (per curiam) (affirming the trial court�s finding of a voidable contract due to mental incapacity, partly based on brain scans of the defendant). 74. Justice Breyer cited neuroscience research in a dissenting opinion, claiming the Court should defer to the California legislature�s decision to ban the sale of violent videogames to children. Brown v. Entm�t Merchs. Ass�n, 131 S. Ct. 2729, 2768, 2770 (2011) (Breyer, J., dissenting) (�Cutting-edge neuroscience has shown that �virtual violence in video game playing results in those neural patterns that are considered characteristic for aggressive cognition and behavior.��). 75. See MICHAEL S. GAZZANIGA, THE ETHICAL BRAIN 88 (2005) (believing that



claim that neuroscience will soon undermine free will entirely�destroying the fundamental basis of criminal law.76 Others are more skeptical, and scoff at the idea that technology could simplify the complicated nature of the human decisionmaking process.77 Some follow a more neutral path, recognizing neuroscience�s potential, but also accepting its limitations and flaws.78

A. Advancements in Neuroscience

Just as the earth was once thought to be flat, the human brain used to be considered unimportant, merely something taking up space in our skulls.79 A significant contributing factor to these misconceptions was the lack of a method or technology to see what was going on in the brain.80 In fact, only 150 years ago, �the ability to study the nervous systems of humans and other animals was limited to direct observation and by examining the effects of brain damage in people.�81 Technology that could

neuroscience will �dominate the entire legal system�); Terrence Chorvat & Kevin McCabe, The Brain and the Law, 359 PHIL. TRANSACTIONS ROYAL SOC�Y B: BIOLOGICAL SCI. 1727

(2004), reprinted in LAW & THE BRAIN 113, 128 (Semir Zeki & Oliver Goodenough eds., 2006) (predicting that newer neuroscience technology will �probably completely change . . . nearly every area of law�). 76. Peggy Sasso, Criminal Responsibility in the Age of �Mind-Reading�, 46 AM. CRIM. L. REV. 1191, 1243 (2009). The decision to punish is designed around the concept that a person has chosen to commit a morally reprehensible act. Toni M. Massaro, Shame, Culture, and American Criminal Law, 89 MICH. L. REV. 1880, 1891�92 (1991). Some scholars and commentators theorize that without the ability for a person to control his actions or make the choice to commit a crime, then punishment under that theory is wrong. Erin Ann O�Hara, How Neuroscience Might Advance the Law, 359 PHIL. TRANSACTIONS ROYAL SOC�Y B: BIOLOGICAL SCI. 1677 (2004), reprinted in LAW & THE

BRAIN, supra note 75, at 21, 27�29 (discussing the mens rea requirement in criminal law). 77. See TALLIS, supra note 71, at 5�13 (�It is a bitter irony that two of our greatest intellectual achievements�the theory of evolution and neuroscience�should be used to prop up a picture of humanity that is not only wrong but degrading.�). 78. See Nikos K. Logothetis, What We Can Do and what We Cannot Do with fMRI, 453 NATURE 869, 869 (2008) (�[F]MRI is not and will never be a mind reader, as some of the proponents of decoding-based methods suggest, nor is it a worthless and non-informative �neophrenology� that is condemned to fail.�); see also Owen D. Jones et al., Brain Imaging for Legal Thinkers: A Guide for the Perplexed, 2009 STAN. TECH. L. REV. 5, ¶¶ 27�28 (explaining the key biological concepts behind neuroscience that are relevant for the legal field and listing the key points of the intersection between these biological concepts and the law). 79. The ancient Egyptians used to scoop out the brain and discard it during the mummification process. The Secret Life of the Brain: History of the Brain, PBS, http://www.pbs.org/wnet/brain/history/2500bc.html?position=169.8?button=2 (last visited Jan. 26, 2013). Aristotle theorized that the heart was the organ of thought and sensation, and the brain was merely used as a radiator designed to cool it. Id. (follow �335 B.C.� hyperlink). 80. CARTER & SHIEH, supra note 6, at xix. 81. Id.



differentiate between the brain�s various substances did not exist until the early 1970s.82

Now, however, �the modern neuroscientist . . . has hundreds of techniques that can be used to answer specific scientific questions.�83 Two of the most widely used techniques are PET (positron emission tomography) and fMRI (functional magnetic resonance imaging).84 These technologies allow neuroscientists to measure how a brain functions, as opposed to revealing only the structure of a person�s brain.85 When these functional techniques are used in combination with structural brain imaging techniques, it is possible �to correlate neural activity in specific anatomical regions with behavioral or cognitive functions.�86 Although the technology and methods are disputed, many consider them to provide an opportunity to objectively detect a person�s experiences, including the feeling of stress, love, and, most importantly for the law�s purposes, pain.87

1. How the Technology Works.88 �The fMRI technique measures blood oxygenation levels.�89 When there are changes in brain activity, such as when a painful stimulus occurs, blood flow throughout the brain changes.90 Specifically, hemoglobin in the blood carries oxygen to the areas of the brain that are working harder.91 When the hemoglobin releases oxygen to the brain, it becomes paramagnetic.92 This means it will disrupt a magnetic field located inside an MRI scanner.93 When the brain demands

82. Id. at 2�3. 83. Id. at xix. 84. Jones et al., supra note 78, ¶¶ 14�17; see Marcus Raichle, What is an fMRI?, in A JUDGE�S GUIDE TO NEUROSCIENCE 5, 5 (Andrew S. Mansfield ed., 2010). 85. CARTER & SHIEH, supra note 6, at 2. 86. Id. 87. Sonia J. Lupien et al., Effects of Stress Throughout the Lifespan on the Brain, Behaviour and Cognition, 10 NATURE REVS. NEUROSCIENCE 434, 442 (2009) (describing the impacts of stress and the potential for future research); Brent Hoff, The Love Competition, VIMEO (Dec. 14, 2011), http://vimeo.com/33698394 (documenting a competition where seven contestants are hooked up to an fMRI machine to see who can feel the most love). When a person experiences pain, it is processed in his brain. Kolber, supra note 9, at 437. Brain scanning technology such as fMRI can give a visual representation of the portions of the brain as it processes that pain. LAW & THE BRAIN, supra note 75, at xi; Kolber, supra note 67, at 597. 88. The technicalities underlying the numerous neuroscience technologies can be overwhelming. This Comment attempts to give a broad and limited overview. For a more thorough background, see generally CARTER & SHIEH, supra note 6. 89. Jones et al., supra note 78, ¶ 17. 90. Raichle, supra note 84, at 5�6. 91. Id.; Jones et al., supra note 78, ¶ 17. 92. Raichle, supra note 84, at 6. 93. Id.



an increase in oxygen, blood flow increases more than needed, resulting in oxygen supply exceeding oxygen demand.94 Hemoglobin thus loses less oxygen and becomes less paramagnetic, which will increase an MRI signal.95 Neuroscientists refer to this as the BOLD (blood oxygen level dependent) signal.96 An fMRI scan will result in a colorful depiction of BOLD response over time, allowing a visible, objective measurement of brain activity.97 The BOLD signal is widely accepted to be a reliable determination of fluctuating activity in the brain.98 �Since the introduction of fMRI BOLD imaging, the growth of functional brain imaging has been nothing short of spectacular.�99

Positron emission tomography, or PET scanning, also measures blood flow in the brain.100 Unlike fMRI, it works by injecting a radioactive tracer into the bloodstream.101 As brain activity increases in certain areas, the tracers move throughout the bloodstream and can serve as indirect markers for neural activity.102 FMRI has mostly superseded PET scanning, primarily because fMRI provides a higher resolution and is less costly.103 However, it is useful to be aware of how PET scans work. Because the technologies attempt similar tasks, the acceptance of PET scans in court will help determine the admissibility of newer neuroscience techniques, including fMRI. Moreover, a tort plaintiff may have to settle for using PET scans if the judge refuses to admit fMRI evidence.104

2. Two Primary Approaches to Help Tort Litigants. Although there will be numerous uses for neuroscience technology such as fMRI and PET,105 there are two primary

94. Id. 95. Id. 96. Id. 97. CARTER & SHIEH, supra note 6, at 15. 98. Jones et al., supra note 78, ¶ 17. 99. Raichle, supra note 84, at 6. 100. CARTER & SHIEH, supra note 6, at 18. 101. Id. at 18�19; Jones et al., supra note 78, ¶ 14. 102. Jones et al., supra note 78, ¶ 14. 103. CARTER & SHIEH, supra note 6, at 18�19. 104. See infra Part IV.A.3 (discussing how each particular neuroscience technique is judged on an individual basis). 105. Neuroscience technology�s uses will not be restricted to the legal and medical fields. One particularly interesting use for it, referred to as �neuromarketing,� studies the brain�s responses to films and advertisements to determine their effectiveness. MINDSIGN

NEUROMARKETING, http://www.mindsignonline.com/index.html (last visited Jan. 26, 2013).



ways that the technology can help plaintiffs prove their emotional harm or invisible injuries. First, as just discussed, plaintiffs can get an objective measurement of the brain�s activity as it processes pain. Second, plaintiffs can use neuroscience as a lie-detecting technology and to prove they are accurately reporting their pain levels.106

Historically, lie-detection technology has been very difficult for courts to accept. In United States v. Scheffer, Justice Thomas held that a per se rule against admission of polygraph evidence does not violate a criminal defendant�s Sixth Amendment right to present a defense.107 He was concerned that the admission of lie-detection evidence would invade the province of the jury.108 Some states with similar concerns have also excluded polygraph evidence, either through judicial rulings109 or through statutes.110 Therefore, it seems likely that fMRI lie detection would be excluded for similar reasons.

However, not all jurisdictions have adopted a per se rule against admission of polygraph evidence, which gives some hope for acceptance of neuroscience-based lie-detection technology.111 With fMRI providing a much stronger method of lie detection than polygraph, plaintiffs could use it as a way to verify their pain.112 Thus, instead of simply asking a plaintiff on the stand to describe his pain, modern technology makes it possible to �ask the plaintiff if he is experiencing pain while assessing whether he is telling the truth.�113 This method would detect malingerers with increased accuracy, helping courts avoid giving excessive monetary relief for feigned or exaggerated claims.114

106. Kolber, supra note 67, at 602�04. 107. United States v. Scheffer, 523 U.S. 303, 308�09 (1998). 108. Id. at 313 (�By its very nature, polygraph evidence may diminish the jury�s role in making credible determinations.�). 109. See, e.g., State v. Porter, 698 A.2d 739, 758�59, 769 (Conn. 1997); State v. Shively, 999 P.2d 952, 961�62 (Kan. 2000); In re Odell, 672 A.2d 457, 459 (R.I. 1996). 110. See ARK. CODE ANN. §§ 12-21-701, -704 (2009) (holding inadmissible all �stress evaluation instrument[s] [administered by law enforcement] to test or question individuals for purpose of determining and verifying the truth of statements�); CAL. EVID. CODE § 351.1 (West 2011) (�[T]he results of a polygraph examination . . . shall not be admitted into evidence in any criminal proceeding.�). 111. See Rupe v. Wood, 93 F.3d 1434, 1441 (9th Cir. 1996) (holding the exclusion of polygraph evidence during the sentencing phase violated the defendant�s due process rights); United States v. Posado, 57 F.3d 428, 433�34 (5th Cir. 1995) (rejecting per se exclusion of polygraph evidence); see also N.M. R. EVID. 11-707 (2012) (permitting the admission of polygraph results subject to certain conditions). 112. See Kolber, supra note 67, at 604 (�In contrast to polygraphy, brain-based methods of lie detection do not necessarily rely on subjective experience as an intermediary.�). 113. Id. 114. Id. at 604, 618. But see infra notes 135�137 and accompanying text (discussing



B. Strengths of the Technology

Functional neuroimaging techniques provide a method for measuring living brain activity.115 This presents a distinct advantage over structural techniques, such as CT scans or MRIs, which simply produce images of the brain�s anatomical features.116 Moreover, because these functional techniques are noninvasive�no physical penetration of the skull is necessary�they allow simple access to study the human brain, as opposed to other techniques that require comparison to animal brains.117 Additionally, functional neuroimaging examines changes in the brain over time.118 This allows researchers to measure a person�s brain activity while the person answers questions or receives a painful stimulus.119

C. Weaknesses of the Technology

Despite the strengths of neuroscience, it has many weaknesses, which could affect its use by plaintiffs as well as the weight neuroscientific evidence is given.120 First, as a practical matter, the currently large costs of obtaining neuroimaging scans may deter tort litigants from using them.121 Moreover, although there is much evidence that emotions are activated by neurons firing in the brain, neuroimaging does not directly measure neuronal activity.122 Rather, it measures that activity indirectly, weaknesses of neuroscience related to lie detection and how plaintiffs could develop countermeasures to manipulate test results). 115. Teneille Brown & Emily Murphy, Through a Scanner Darkly: Functional Neuroimaging as Evidence of a Criminal Defendant�s Past Mental States, 62 STAN. L. REV. 1119, 1127 (2010). 116. Id.; Goldin, supra note 42 (�Someone who is dead can have a normal CT or MRI scan.�). 117. See CARTER & SHIEH, supra note 6, at 13�14, 74�80 (identifying various animal studies and how they cannot be performed on humans). 118. Id. at 14. 119. In one such study, Dr. Sean Mackey, a professor at Stanford University, created a �painometer� which correctly determined 81% of the time whether a person was receiving a painful stimulus or not. Alice G. Walton, A New, Objective Way to Study Pain, ATLANTIC (Sept. 21, 2011, 3:01 PM), http://www.theatlantic.com/health/archive/2011/09/a-new-objective-way-to-study-pain/245293/. 120. See Scott T. Grafton, Has Neuroscience Already Appeared in the Courtroom?, in A JUDGE�S GUIDE TO NEUROSCIENCE, supra note 84, at 54, 58 (�It may be possible to reject [neuroscience] evidence on technical grounds alone.�). 121. See CARTER & SHIEH, supra note 6, at 24�25 (estimating fMRI scans to cost between $100 and $1000 per hour); Kolber, supra note 67, at 650 (stating that it costs �over $500 per hour to scan one subject in an fMRI machine�). In addition, because of the complexity of the technology, an expert witness will likely be hired, further increasing costs. Lewis A. Kaplan, Experts in the Courthouse: Problems and Opportunities, 2006 COLUM. BUS. L. REV. 247, 248�49. 122. Brown & Murphy, supra note 115, at 1138.



using the BOLD signal.123 Some claim that the relationship between the BOLD signal and neuron activity is weaker than what is popularly suggested.124 Additionally, unlike structural imaging, the results of functional imaging will rely greatly on the researcher.125 �Consequently, no fMRI image speaks for itself.�126

Furthermore, most of what we know about brain function from imaging comes from studies averaging groups of individuals, rather than individuals themselves.127 �As a result, it is very challenging to predict from the averaged group data the exact nature of the function or dysfunction in individual subjects.�128 To study an individual brain, data collected from a scan is compared to a defined norm, such as the average of a pool of normal people or the individual�s own baseline scan.129 This raises additional concerns, such as what a �normal� brain is.

Another weakness of the technology is that it informs little about causation.130 Although differences in brain scans after an emotionally disturbing event may have a corollary relation, this does not mean that the emotionally disturbing event was the cause of those differences.131 A similar concern is how to approach a plaintiff with a pre-existing condition. Without a baseline scan of the plaintiff�s pain level before a defendant�s wrongful action, there will be no way to know how much additional pain the defendant caused.132 Likewise, a brain scan for purposes of litigation will often take place long after the injury or event.133 Although the plaintiff may still be experiencing pain at this point, a number of other causes between the injury and the scan could have contributed to the neuroimaging results.134

123. Id. 124. Jones et al., supra note 78, ¶ 17 n.23. 125. N.J. Schweitzer & Michael J. Saks, Neuroimage Evidence and the Insanity Defense, 29 BEHAV. SCI. & L. 592, 592�93 (2011). 126. Id. at 593. 127. Jones et al., supra note 78, ¶ 33. 128. Raichle, supra note 84, at 10. 129. Donald Reeves et al., Limitations of Brain Imaging in Forensic Psychiatry, 31 J. AM. ACAD. PSYCHIATRY & L. 89, 90 (2003); see also Howard Fields, Can Neuroscience Identify Pain?, in A JUDGE�S GUIDE TO NEUROSCIENCE, supra note 84, at 32, 34 (�[T]he fMRI BOLD signal during pain has to be compared with a baseline condition when there is no pain (or a known but different level of pain).�). 130. For more on causation, see infra Part V.C.1. 131. See Jones et al., supra note 78, ¶ 38 (arguing that a correlation between imaging readings does not equate to a causal relationship). 132. See Kolber, supra note 67, at 612�13 (noting that the lack of a plaintiff�s pre-injury baseline complicates pain assessments). 133. Jones et al., supra note 78, ¶ 39. 134. See id.



A weakness specific to the lie-detecting function of neuroscience is that it may not be able to expose unaware malingerers. �Most brain-based lie-detection tests assume that lying should result in more brain activity than truth-telling because lying involves more cognition. So these lie-detection methods may fail in . . . [detecting] individuals who believe in the falsehood they�re telling.�135 Similarly, because plaintiffs will want to have scans that show a high level of pain to increase potential damage awards, �they would have a conflict between self-interest and accuracy.�136 This will incentivize plaintiffs to manipulate, or at least attempt to manipulate, the tests to obtain scans that are more favorable.137

The numerous technical weaknesses seem to pose a great challenge for tort plaintiffs seeking to use neuroscience in court. However, these weaknesses have done little to prevent the frequent use of neuroscience in criminal cases.138 Moreover, neuroscience will continue to evolve in the future, potentially changing the balance of the technology�s strengths and weaknesses.

D. The Future of Neuroscience

The ability to measure neural activity through functional brain imaging techniques has transformed the field of neuroscience in just a ten-year span.139 As new technologies and methods begin to emerge, our understanding of how the brain processes pain and emotions will grow just as rapidly.140 Adam Kolber has predicted, �Emerging technologies will enable us to make inferences about others� experiences more frequently and

135. Nita Farahany, The Government Is Trying to Wrap Its Mind Around Yours, WASH. POST, Apr. 13, 2008, at B3. 136. Fields, supra note 129, at 34. 137. See Kolber, supra note 67, at 600 (�Techniques that rely on functional brain imaging may be particularly susceptible to countermeasures because we have some control over our own brain activity.�). 138. See supra note 72 and accompanying text. In fact, neuroscience has become a common enough tool that some criminal defendants have succeeded in an ineffective assistance of counsel claim when their attorney failed to present it. See People v. Morgan, 719 N.E.2d 681, 686, 711�12 (Ill. 1999) (vacating a death sentence based on the defense attorney�s failure to introduce mitigating neuroscientific evidence); People v. Ruiz, 686 N.E.2d 574, 580, 582�83 (Ill. 1997) (finding counsel to be ineffective for failing to introduce evidence including neuropsychological reports). But see Ferrell v. State, 918 So. 2d 163, 176 (Fla. 2005) (�There was no evidence that such scans were being ordered in capital cases in Florida in 1992. Thus, counsel�s failure to obtain a scan was not deficient performance.�). 139. Tim Dalgleish, The Emotional Brain, 5 NATURE REVS. NEUROSCIENCE 582, 588 (2004). 140. See id. (noting new techniques that have the potential to advance the field further); see also infra note 246 and accompanying text.



with greater precision. These technologies may never be perfect. But they don�t have to be. They need only be cost-effective supplements to the very crude methods we use today.�141

Potentially, the future growth of neuroscience will also lead to the elimination of some weaknesses mentioned above. For example, the lack of an individual baseline scan to compare to a post-injury scan may no longer be a problem as awareness of head injuries increases.142 In fact, today, the National Football League gives baseline neurological exams to prospective players before they ever play in a game.143 Thus, the possibility of a person obtaining a baseline scan during a regular checkup is not a far-fetched idea.

That said, it is difficult to predict with certainty whether all or some of the weaknesses of neuroscience will be fixed in the future. Nevertheless, given the strengths of the technology and its potential to quantify pain, tort litigants will attempt to use it to their advantage in the immediate future.144

IV. NEUROSCIENCE IN THE COURTROOM

For neuroscience to have any significant impact on tort law, courts will have to allow parties to introduce neuroscientific evidence. Given the scientific community�s disagreement over the capabilities of neuroscience, getting this evidence before a jury will be difficult. Moreover, even if the evidence clears a particular court�s standard for admissibility, the judge will still have discretion to refuse admission based on its potential effect on the jury. However, if neuroscientific evidence can clear these evidentiary hurdles, it is poised to be a frequent tool of litigators in tort cases due to a commercial push to make neuroscience courtroom ready.145

141. Kolber, supra note 67, at 589. 142. See id. at 613 (�Perhaps someday we will all have regular medical check-ups that gather data about our baseline conditions.�). 143. See Carl Zimmer, The Brain: What Happens to a Linebacker�s Neurons?, DISCOVER MAG., July�Aug. 2010, at 28 (summarizing the neurological exam that college draft picks are put through). 144. Jones et al., supra note 78, ¶ 44; see Kolber, supra note 67, at 608�10 (noting the technological ability to quantify pain may �spark changes in the law to take advantage of the more precise information they make available�). 145. For instance, the U.S. Patent and Trademark Office has issued multiple �pain detection� patents. See U.S. Patent No. 7,860,552 col.1 l.17�19, col.2 l.19�26 (filed Sept. 30, 2005) (declaring a method of identifying markers for chronic pain or psychiatric disorders by measuring levels of activity in the central nervous system); U.S. Patent No. 7,462,155 col.4 l.18�57 (filed Oct. 27, 2004) (explaining a method of using fMRI to objectively determine if a person is suffering pain). Additionally, companies have already begun marketing fMRI technology for use in the courtroom. See CEPHOS, http://www.cephoscorp.com/about-us/index.php (last visited Jan. 26, 2013) (performing scans for the purposes of a wide variety of claims, and asserting accuracy rates above



A. Admissibility of Neuroscientific Evidence

Before Federal Rule of Evidence (FRE) 702, the majority rule for admission of scientific evidence was the �general acceptance� standard, as promulgated by Frye v. United States.146 In Frye, the court held that a systolic blood pressure deception test did not meet this standard, as it had gained little recognition in the scientific community.147

However, the U.S. Supreme Court determined that FRE 702 superseded Frye, and adopted a new standard in Daubert v. Merrell Dow Pharmaceuticals, Inc.148 The Court held that scientific evidence will be admitted upon a trial judge�s determination that the evidence is �reliable� and �relevant to the task at hand.�149 Additionally, the Court announced several nonexclusive factors to determine reliability: whether the technique has been tested, whether it has been subjected to peer review and publication, the potential error rate in using the technique, the existence and maintenance of standards controlling its operation, and whether it has been generally accepted in the scientific community.150 The Supreme Court subsequently amended FRE 702 to reflect the Daubert decision.151

1. Will Neuroscientific Evidence Be Admitted Under the General Acceptance Test? Despite Daubert overruling Frye in the federal context, the general acceptance standard remains important. General acceptance is still a factor for reliability.152 Furthermore, although a majority of states follow the reliability

97%); CHRONIC PAIN DIAGNOSTICS, INC., http://chronicpd.com/ (last visited Jan. 26, 2013) (offering chronic-pain-detection services to be used to support a legal claim); NO LIE MRI, http://noliemri.com/products/Overview.htm (last visited Jan. 26, 2013) (claiming its fMRI technology �greatly surpasses all other truth verification/lie detection methods� and has a current accuracy over 90%). 146. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (�[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.�), superseded by statute, FED. R. EVID. 702, as recognized in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579. 587 (1993); see also Alice B. Lustre, Annotation, Post-Daubert Standards for Admissibility of Scientific and Other Expert Evidence in State Courts, 90 A.L.R. 5TH 453 (2001) (�The Frye test was quickly adopted by most states as well as the other federal courts.�). 147. Frye, 293 F. at 1014. 148. Daubert, 509 U.S. at 587�89, 597. 149. Id. at 597. 150. Id. at 593�94. 151. FED. R. EVID. 702 advisory committee�s notes. 152. Daubert, 509 U.S. at 594.



test of Daubert and FRE 702, a large number of states continue exclusively to use the general acceptance test.153

A New York state court applied the general acceptance test to the use of a PET scan expert in a personal injury case.154 The plaintiff had offered the expert�s testimony to help prove she suffered minor brain trauma after a portion of her bathroom ceiling collapsed on her head.155 The defendant filed a motion seeking to exclude the expert�s testimony, asserting that the use of PET scans to diagnose brain injury is not generally accepted in the medical field.156 The court denied the defendant�s motion, allowing the jury to hear the expert�s testimony of the PET scan results.157 Interestingly, the court seemed to be satisfied with three peer review articles that provided support for the expert�s use of PET scans.158

Cases such as this give hope to other uses of neuroscience passing the general acceptance standard. However, this court may have felt more comfortable admitting the PET expert in this context, as the case involved a clear physical injury. The admission of neuroscience to prove emotional injuries will be an entirely different challenge for litigants.

2. Will Neuroscientific Evidence Be Admitted Under the Reliability Test? Under FRE 702, judges act as �gatekeepers� for scientific evidence.159 In Daubert, the Court described its proposed test as more liberal and flexible than the general acceptance test.160 The Court supported this assertion in a later case, claiming that the Daubert standard admits a broader range of testimony than the general acceptance test.161 However, many judges have been uncomfortable in their role as gatekeepers.162 Thus, in actual practice, the Daubert standard can be stricter than the general acceptance standard.163 Admissibility may

153. See generally Lustre, supra note 146 (surveying the states� standards for admitting expert evidence). 154. Brown v. Allerton Assocs., No. 17917/03, 2006 WL 3102331, at *1�3 (N.Y. Sup. Ct. Oct. 5, 2006). Despite the defendant�s request, the court refused to apply the Daubert standard. Id. 155. Id. at *1�2. 156. Id. at *1. 157. Id. at *1�3. 158. Id. at *2�3. 159. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993). 160. Id. at 588, 594�95. 161. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997). 162. See Erica Beecher-Monas, Blinded by Science: How Judges Avoid the Science in Scientific Evidence, 71 TEMP. L. REV. 55, 68 (1998) (�Many judges are resistant to the sort of analysis that Daubert demands.�). 163. See David E. Bernstein, Frye, Frye, Again: The Past, Present, and Future of the



depend entirely on the judge�s comfort level with analyzing scientific validity.164

A federal district court applied an extensive Daubert hearing to consider the admissibility of multiple neuroscience experts in In re Welding Fume Products Liability Litigation.165 The plaintiffs claimed that exposure to manganese in welding fumes had caused them to develop various neurological injuries, including Parkinson�s disease.166 The defendants asserted, relying on neuroscience experts and neuroimaging, that exposure to manganese could not cause Parkinson�s disease.167 They filed a motion seeking to exclude any testimony that contended otherwise.168 The court rejected the defendant�s motion, concluding that defendant�s evidence�including neuroscience evidence�was not dispositive on the cause of the plaintiffs� condition.169 Regarding the neuroimaging evidence, the court stated, �Neuroimaging may eventually prove extremely helpful . . . in defining precisely the extent and location of neuronal damage, as well as in identifying the form of parkinsonism that a patient is suffering. But these radiological tests are currently research tools, not diagnostic tools.�170

3. Not All Neuroscience Is Alike. Unfortunately, it is not possible to say whether the entire field of neuroscience will be admissible or inadmissible. Admissibility will be determined on a case-by-case basis; the analysis will be different for each technique or technology offered.171 Moreover, the conclusion

General Acceptance Test, 41 JURIMETRICS J. 385, 404�07 (2001) (opining that the Daubert test �has become a far broader and stricter test than Frye ever was� and explaining several reasons why). 164. See Beecher-Monas, supra note 162, at 72�73 (explaining how judges who are uncomfortable with the analysis find ways to avoid it, including adding additional barriers). 165. In re Welding Fume Prods. Liab. Litig., 526 F. Supp. 2d 775 (N.D. Ohio 2007). The court ruled on the Daubert hearing two years prior to the reported decision. In re Welding Fume Prods. Liab. Litig., No. 1:03-CV-17000, 2005 WL 1868046, at *2 (N.D. Ohio Aug. 8, 2005). 166. In re Welding Fume Prods., 526 F. Supp. 2d at 784�85. 167. In re Welding Fume Prods., 2005 WL 1868046, at *28�29. 168. Id. at *29. 169. Id. at *30�31. 170. Id. at *30. 171. For instance, it will be easier to gain admission of neuroscience evidence in a chronic pain case than a pure emotional harm case, due to the latter being more controversial in the scientific community. See WILLIAM R. UTTAL, THE NEW PHRENOLOGY: THE LIMITS OF LOCALIZING COGNITIVE PROCESSES IN THE BRAIN, at xv (2003) (�What I hope, at a minimum, is that there will be a pause to consider some of the doubts a few of us have about this headlong plunge into a research field that is fraught, to say the least, with some serious conceptual and practical problems.�); supra note 77 and accompanying



asserted will affect admissibility,172 as will the particular judge who performs the analysis.173 However, courts will begin to admit a broader range of neuroscientific evidence in tort cases as neuroscience is used more and more outside of the tort context.174

B. The Effect of Neuroscience on a Jury

Even if courts admit neuroscientific evidence under FRE 702 or the applicable state rule, a judge will still have authority to exclude the evidence if its probative value is �substantially outweighed� by unfair prejudice or confusion of the jury.175 Neuroscience has a very �seductive allure� to it, and �something about seeing neuroscience information may encourage people to believe they have received a scientific explanation when they have not.�176 Many believe jurors will be prone to give neuroscientific evidence a disproportionate amount of weight.177 Thus, the opponent of the evidence will have a strong argument that the judge should use his Rule 403 authority.

A study by Nick Schweitzer and Michael Saks examined the effect of neuroscience images on lay people in a mock trial.178 The experiment, which used a demographically diverse sample, had participants read a summary of a criminal trial in which the defendant had raised an insanity defense.179 There were six different versions of the evidence, including testimony by a neurologist with an included neuroimage, testimony by a clinical psychologist, and a version with no expert evidence for the

text. Similarly, given courts� refusal to admit polygraph tests, it will likely be a greater challenge to admit fMRI lie-detection evidence than fMRI pain-detection evidence. See supra notes 107�108 and accompanying text; see also Greg Miller, Brain Scans of Pain Raise Questions for the Law, 323 SCI. 195, 195 (2009) (predicting that pain detection will be the first application of fMRI in the courtroom, instead of fMRI lie detection, because neuroscience of pain is more understood); Jane Campbell Moriarty, Visions of Deception: Neuroimages and the Search for Truth, 42 AKRON L. REV. 739, 754 (2009) (theorizing that courts will be hesitant to accept fMRI lie-detection evidence because it is new and serves a purpose similar to the polygraph). 172. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (requiring judges, in a Daubert analysis, to determine reliability of the conclusions drawn from the methodology, not just the methodology itself). 173. See supra text accompanying note 164. 174. See infra Part IV.C. 175. FED. R. EVID. 403; see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 (1993) (instructing judges to be �mindful� of other applicable rules, including FRE 403). 176. Deena Skolnick Weisberg et al., The Seductive Allure of Neuroscience Explanations, 20 J. COGNITIVE NEUROSCIENCE 470, 470 (2008). 177. See David M. Eagleman, Neuroscience and the Law, HOUS. LAW., Mar.�Apr. 2008, at 38 (�[J]urors might be persuaded that pictures of the brain don�t lie.�). 178. Schweitzer & Saks, supra note 125, at 596�98. 179. Id. at 597.



control group.180 The participants, after reading their version of the evidence, decided what verdict they would have rendered.181 Not surprisingly, those who saw the neuroimage were more likely to grant a verdict of not guilty by reason of insanity.182 However, even though there was a significant difference between the neuroimage group and the control group, there was little difference between the neuroimage group and the clinical psychologist group.183 This suggests that neuroscience would not be significantly more prejudicial than psychologist testimony, which is already routinely permitted in trials.184

A proponent of neuroscientific evidence could point to similar studies to counter the assertion that jurors are powerless to refuse its allure.185 Additionally, proponents can argue that instead of categorically excluding the evidence, the cross-examining lawyer should be tasked with leaving doubt in the jury�s mind.186 Furthermore, because most of the concern over prejudice or jury confusion comes from visual representations of the brain, perhaps a judge will compromise and admit testimony from a neuroscience expert, but not allow the jury to see neuroscience images.187

C. Neuroscience�s Application Outside of Tort Law

Whether the technology is ready or not, lawyers undoubtedly use neuroscience outside of the tort context. For instance, criminal defendants frequently use neuroscience in an attempt to

180. Id. at 598�99. 181. Id. at 598. 182. Id. at 602. 183. Id. 184. See, e.g., United States v. Shay, 57 F.3d 126, 133�34 (1st Cir. 1995) (determining that the lower court committed error by excluding expert psychological testimony); State v. Buechler, 572 N.W.2d 65, 74 (Neb. 1998) (same). 185. Justice Stevens made a similar argument in his dissent in United States v. Scheffer, 523 U.S. 303, 337 & n.26 (1998) (Stevens, J., dissenting) (�[T]he reliance on a fear that the average jury is not able to assess the weight of [polygraph] testimony reflects a distressing lack of confidence in the intelligence of the average American.�). There is a multitude of studies suggesting that jurors understand more than is often supposed. Frederick Schauer, Can Bad Science Be Good Evidence? Neuroscience, Lie Detection, and Beyond, 95 CORNELL L. REV. 1191, 1210 & n.103, 1211 (2010). 186. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (�Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.�). Given the weaknesses of the technology, a lawyer on cross will have plenty of ways to attack the credibility of the expert or technique used. See supra Part III.C. 187. See Schweitzer & Saks, supra note 125, at 596 (describing another set of experiments, which showed that a newspaper-type article with an accompanying brain image was more persuasive than the same article with a bar graph).



mitigate punishment.188 Lawyers have used neuroscience in the past to prove mental incompetency and to argue for regulation of violent videogames, and they will continue to find creative ways to use neuroscience.189 Likewise, companies will continue to market the technology to lawyers and potential litigants.190 Moreover, scholars theorize that neuroscience will have a broad application in many different areas of the law.191 As the legal field accepts neuroscience in other areas, the technology has a greater chance to be tolerated in tort litigation.192

Additionally, neuroscience is used not only in trials themselves, but also to shape various legal policies. For instance, it has changed the perception of �shaken baby syndrome.�193 Similarly, neuroscience findings have altered how brain death is defined, which has numerous legal implications.194 They have likewise played a part in modifying death penalty policy.195

188. See supra note 72 and accompanying text. 189. Supra notes 73�74; Entm�t Software Ass�n v. Blagojevich, 404 F. Supp. 2d 1051, 1063�76 (N.D. Ill. 2005) (considering whether fMRI research demonstrated a compelling state interest to justify a law regulating violent videogames). 190. See supra note 145. 191. See generally Stacey A. Tovino, Functional Neuroimaging and the Law: Trends and Directions for Future Scholarship, 7 AM. J. BIOETHICS 44�49 (2007) (examining the potential application of neuroscience in legal areas such as property, health law, employment law, and consumer law); Kolber, supra note 67, at 651 (concluding that neuroscience should impact multiple areas, including worker�s compensation, deceptive advertising, torture policies, and sentencing in criminal cases). 192. Forensic science went through a similar process. Although forensic science was traditionally used in criminal cases, �[t]here are many kinds of civil cases . . . in which . . . forensic science also play[s] [an] important role[ ].� Henry C. Lee, Forensic Science and the Law, 25 CONN. L. REV. 1117, 1123 (1993). 193. The medical community historically understood that shaking alone would cause shaken baby syndrome, and that infants would lose consciousness immediately. Modern neuroscience has now shown there are a number of medical disorders that mimic shaken baby syndrome, and infants who suffer fatal head injuries may stay conscious for more than seventy-two hours before death. Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 WASH. U. L. REV. 1, 17�19, 21�22 (2009); see also State v. Edmunds, 746 N.W.2d 590, 592, 596, 598�99 (Wis. Ct. App. 2008) (ordering a new trial for a caretaker convicted twelve years earlier of causing the death of an infant). 194. See Eun-Kyoung Choi et al., Brain Death Revisited: The Case for a National Standard, 36 J.L. MED. & ETHICS 824, 824, 827�28 (2008) (discussing various jurisdictions� requirements for brain death determination and how this affects the withdrawal of life support); see also Kolber, supra note 9, at 450 (describing an fMRI experiment that showed normal brain activation when asking a patient in a vegetative state to imagine tasks such as playing tennis). 195. The U.S. Supreme Court held it unconstitutional to impose the death penalty on juveniles under eighteen, in part because of juveniles� lack of development compared to adults. Roper v. Simmons, 543 U.S. 551, 556, 578�79, (2005). The amicus briefs filed in that case are replete with neuroscience findings. See, e.g., Brief for American Bar Association as Amici Curiae Supporting Respondent at *9�10 & n.5, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633) (citing neuroscience studies that show how a juvenile�s



Accordingly, neuroscience should shape tort policy as well. At the very least, the technology should make the legal community reevaluate the law�s approach to invisible and emotional injuries.

V. NEUROSCIENCE�S POTENTIAL IMPACT ON TORT LAW

A. Difficulty Justifying Drawn Lines Between Categories of Harms

Neuroscience is making it harder to support a legal distinction between physical and emotional injuries. �[M]edical science has recognized long since that not only fright and shock, but also grief, anxiety, rage and shame, are in themselves �physical� injuries, in the sense that they produce well marked changes in the body, and symptoms that are readily visible to the professional eye.�196 Indeed, the line drawn between physical and emotional injuries is blurring, especially with injuries like post-traumatic stress disorder (PTSD).197

The Court of Appeals of Michigan confronted this problem in Allen v. Bloomfield Hills School District.198 In Allen, the plaintiff was operating a train when he observed a government-owned and -operated school bus maneuver around the lowered gate and enter the railroad crossing.199 The plaintiff was unable to stop in time, and the train crashed into the school bus.200 Unbeknownst to the plaintiff until after the accident, there were no children on the bus.201 Although the plaintiff did not suffer any direct physical impact during the collision, he developed PTSD because of his initial belief that he had killed or maimed schoolchildren.202 Michigan has a narrow exception abrogating governmental immunity for �bodily injury� caused by negligent operation of a motor vehicle.203 At trial, the plaintiff introduced neuroscientific

brain is less developed than an adult brain). 196. W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS 56 (5th ed. 1984); see also J. Douglas Bremner, The Invisible Epidemic: Post-Traumatic Stress Disorder, Memory and the Brain, DOCTOR WILL SEE YOU NOW (Aug. 1, 2011), http://www.thedoctorwillseeyounow.com/content/stress/art1964.html (explaining how symptoms �commonly understood to be psychological problems . . . may well be related to the physical effects of extreme stress on the brain�). 197. See Bremner, supra note 196 (commenting on studies that show sufferers of PTSD, such as combat veterans and victims of child abuse, experience physical changes to the hippocampus). 198. Allen v. Bloomfield Hills Sch. Dist., 760 N.W.2d 811, 812 (Mich. Ct. App. 2008). 199. Id. at 812. 200. Id. 201. Id. 202. Id. at 817 (Hoekstra, J., concurring in part and dissenting in part). 203. Id. at 813 (majority opinion).



evidence to prove he suffered PTSD as a result of the accident.204 Nevertheless, the trial court granted summary judgment to the defendant, reasoning that the plaintiff had not suffered a bodily injury.205

However, the court of appeals reversed, asserting that the �plaintiff presented objective medical evidence that a mental or emotional trauma can indeed result in physical changes to the brain.�206 The majority stated, �[T]here should be no difference medically or legally between an objectively demonstrated brain injury, whether the medical diagnosis is a closed head injury, PTSD, . . . etc. A brain injury is a �bodily injury.��207 The dissenting justice, on the other hand, thought the evidence merely proved a mental, emotional, or psychiatric injury.208 Furthermore, he argued the majority�s holding would �break down entirely the barrier between emotional and physical harms.�209

Courts will undoubtedly face similar arguments more frequently in the future. Section 436A of the Restatement does not permit recoveries for negligently caused emotional injuries without accompanying bodily harm.210 In order to get around this rule, a plaintiff could allege that his emotional injury is in fact a bodily injury, as it resulted in changes to his brain. Even if courts will only accept this argument in the context of PTSD or similar injuries, what would stop plaintiffs from repackaging their emotional distress claims as a PTSD injury? In theory, as the symptoms of PTSD and many emotional distress injuries are similar, this would not be difficult for plaintiffs to do.211

B. Current Damage Calculation Methods Are Flawed

Given the nature of emotional and invisible injuries, these

204. Id. at 815�16. 205. Id. at 812. 206. Id. at 815�17. 207. Id. at 816. 208. Id. at 818 (Hoekstra, J., concurring in part and dissenting in part). 209. Id. (quoting Bobian v. CSA Czech Airlines, 232 F. Supp. 2d 319, 326 (D.N.J. 2002)). 210. RESTATEMENT (SECOND) OF TORTS § 436A (1965). 211. Emotional distress encompasses a variety of conditions, such as anxiety, fright, grief, shock, humiliation, nervousness, and apprehension. Crisci v. Sec. Ins. Co. of New Haven, Conn., 426 P.2d 173, 178 (Cal. 1967); A.M. Viens, The Use of Functional Neuroimaging Technology in the Assessment of Loss and Damages in Tort Law, 7 AM. J. BIOETHICS 63, 64 (2007). It would not take much creativity to plead those symptoms as PTSD, which is characterized by �intrusive memories, nightmares, flashbacks, increased vigilance, social impairment and problems with memory and concentration.� Bremner, supra note 196.



injuries are difficult to quantify.212 Yet juries are asked to do this today without the help of neuroscience or any other method that objectively measures pain.213 Courts will often give juries vague instructions on how to calculate damages for pain and suffering.214 As discussed, one of the primary arguments against using neuroscience is that it is uncertain whether the technology measures with enough accuracy to assess pain reliably.215 However, the damage calculation methods currently in place are severely flawed, leaving much to be desired.

One common practice is simply to use nonneuroscience expert witnesses, such as psychologists and psychiatrists.216 However, these experts� testimony will often rely on self-reports from the plaintiffs.217 Because self-reports could be tainted by exaggeration or intentional misreporting, it is hard to consider this testimony to be accurate.218 Another method is the �per diem� calculation.219 Under this method, a jury will calculate the damages for a plaintiff�s injury for �a specific unit of time (such as a day), and the total award is then determined by multiplying the damages per unit (such as $10 per day) by the total number of time units (days) during which the plaintiff was injured and will continue to be injured.�220 The per diem method is weak because it ignores that there are thresholds to pain, and thus often produces excessive damage awards that are greatly disproportionate to a plaintiff�s actual suffering.221

212. See supra Part II.B. 213. See SCHWARTZ, KELLY & PARTLETT, supra note 20, at 551 (stating that currently, �[t]he best that can be done is to leave the question [of emotional distress damages] to the jury� because there is no fixed standard for these damages). 214. The pattern jury instructions for the Seventh Circuit state, �There is no exact standard for setting the damages to be awarded on account of pain and suffering. You are to determine an amount that will fairly compensate Plaintiff for the injury he has sustained.� COMM. ON PATTERN CIVIL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT, FEDERAL CIVIL JURY INSTRUCTIONS § 3.10 (2010); see also DEL. P.J.I. CIV. § 22.1 (2000) (�Your award should be just and reasonable in light of the evidence and reasonably sufficient to compensate [plaintiff�s name] fully and adequately.� (alteration in original)). 215. See supra Part III.C. 216. Kolber, supra note 67, at 617�18. 217. Id. at 618. 218. See supra note 59 and accompanying text. 219. SCHWARTZ, KELLY & PARTLETT, supra note 20, at 553. 220. Geistfeld, supra note 70, at 782. 221. See SCHWARTZ, KELLY & PARTLETT, supra note 20, at 553; Joseph H. King, Counting Angels and Weighing Anchors: Per Diem Arguments for Noneconomic Personal Injury Tort Damages, 71 TENN. L. REV. 1, 31 (2003). Interestingly, most jurisdictions permit this method because they assume opposing counsel can reveal its flaws. SCHWARTZ, KELLY & PARTLETT, supra note 20, at 553; see Debus v. Grand Union Stores of Vt., 621 A.2d 1288, 1290 (Vt. 1993) (�[J]urisdictions that have allowed per diem arguments [believe] that sufficient safeguards exist in the adversarial system to overcome the objections to its use.�).



When compared to the unrefined methods and vagueness of calculating damages today, neuroscience starts to look like an improvement. Although neuroscience may not be perfect, or even close to perfect, it may soon provide the �least worst� method for calculating damages.222

C. Caveats

Even if these strong arguments for changing the approach to tort law and introducing neuroscience are accepted, there are important caveats that will limit the effectiveness of neuroscience used by plaintiffs. However, these caveats can ensure that only plaintiffs with actual, severe harms will benefit from neuroscience. Thus, by reducing the threat of malingerers recovering, these can alternatively be viewed as an additional argument for allowing the use of neuroscience as evidence.

1. Causation Burden. Although neuroscience imaging may help prove the existence of an invisible or emotional injury, it will help little with causation.223 Also, because of the scientific uncertainty surrounding the technology, plaintiffs will likely have a high burden of causation for these types of cases.224 This is appropriate; however, as tort law strives to hold defendants liable only for harms within the potential risks of their tortious conduct.225

In Boyd v. Bert Bell/Pete Rozelle NFL Players Retirement Plan, an employee-benefits case, the Ninth Circuit Court of Appeals dealt with this causation issue.226 The board for the NFL�s retirement plan denied a former player�s claim for degenerative disability benefits, and the player filed a lawsuit against the board.227 The player introduced several expert witnesses, including neurologists, and a SPECT scan,228 which objectively proved he suffered from a disabling brain injury.229 Even though there was a consensus from the experts that the

222. See Kolber, supra note 67, at 618 (predicting neuroscience will produce improved methods of diagnosing psychiatric symptoms and their severity). 223. Jones et al., supra note 78, ¶ 38. 224. See Mark Geistfeld, Scientific Uncertainty and Causation in Tort Law, 54 VAND. L. REV. 1011, 1030 (2001) (noting that in cases of scientific uncertainty, where only a probability of harm can be established, plaintiffs� causation burden is much more difficult). 225. RESTATEMENT (THIRD) OF TORTS § 29 cmt. d (2010). 226. Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1178�79 (9th Cir. 2005). 227. Id. at 1175, 1177. 228. A SPECT scan is similar to a PET scan. CARTER & SHIEH, supra note 6, at 19. 229. Boyd, 410 F.3d at 1176�77.



brain disorder likely resulted from football-related activity, the court upheld the board�s denial of benefits because the player had not met his causation burden.230

Similarly, in Matuszak v. Cerniak, the plaintiff sued his doctor and hospital following a colonoscopy.231 At trial, he used a SPECT scan to show he suffered brain damage because of the doctor�s administration of improper amounts of anesthesia during the procedure.232 The defendants� expert opined that the plaintiff�s brain injury was not caused by the anesthesia.233 Instead, he gave several alternate explanations for the cause of the injury.234 The court held there was no error in admitting the expert�s testimony on other speculative causes, and upheld the jury�s verdict for the defendants.235

Matuszak and Boyd illustrate the difficulties that plaintiffs with emotional and invisible injuries will have with proving causation. Nevertheless, in both cases, neuroscience helped prove the existence of the injuries.236 Plaintiffs could, therefore, use similar neuroscientific evidence to get past summary judgment, making causation a jury question, as was the case in Matuszak.237 Although the jury did not render a favorable verdict to the plaintiff in Matuszak, it will be a victory for many plaintiffs just to have their case decided by a jury as opposed to a dismissal by summary judgment. Additionally, the possibility of a negative jury verdict will increase the likelihood of defendants settling, leaving plaintiffs with some relief for their invisible or emotional injuries.238

2. Neuroscience Will Work Both Ways. Considering litigants� belief in the power of neuroscience over a jury, tort defendants will also seek to admit their own neuroscientific evidence.239

230. Id. at 1176�77, 1179. 231. Matuszak v. Cerniak, 805 N.E.2d 681, 682 (Ill. App. Ct. 2004). 232. Id. at 683. 233. Id. at 684�85. 234. Id. at 684. 235. Id. at 687�88. 236. Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1177 (9th Cir. 2005); Matuszak, 805 N.E.2d at 683. 237. See 57A AM. JUR. 2D Negligence § 506 (2004) (�[T]he issue of causation can be left to the jury even though medicine has not yet made up its mind with absolute certainty.�); see also Daniel J. Capra, The Daubert Puzzle, 32 GA. L. REV. 699, 728 (1998) (propounding that an expert does not need �to exclude categorically each and every possible alternative cause� when testifying on causation). 238. See Michael Abramowicz, A Compromise Approach to Compromise Verdicts, 89 CALIF. L. REV. 231, 239�40 (2001) (discussing why a typical litigant will favor settling a case rather than allowing the jury to decide). 239. See supra note 177 and accompanying text.



Neuroscience will thus have the same potential to work against plaintiffs as it does to support their claims.240 In In re Air Crash at Little Rock Arkansas, a jury awarded an airplane crash survivor $6.5 million in damages under the Warsaw Convention for her injuries resulting from the crash, including PTSD.241 The court of appeals ordered a remittitur to $1.5 million and denied any recovery for her PTSD, seemingly based on her lack of neuroscientific evidence.242 Even though this result was somewhat due to the Warsaw Convention�s disfavor of emotional injuries,243 the case exemplifies how neuroscience can work against plaintiffs. As the technology becomes more accepted, courts and juries may even expect plaintiffs to introduce neuroscience as evidence. Similarly, if neuroscience is absent, defendants will quickly point out the lack of any objectively verifiable proof of an emotional or invisible injury, or use their own neuroscientific evidence and experts to combat these claims.244

D. Recommendations and Predictions

In the near future, neuroscience will likely be a helpful tool for litigants with invisible injuries. In contrast, it will not be useful for plaintiffs with emotional injuries. These opposite conclusions are based on a variety of reasons, which have more to do with the differences in the types of injuries themselves and how neuroscience is applied to each type, rather than technical weaknesses in the technology.

First, we know more about how invisible injuries work in the brain than emotional injuries.245 Similarly, researchers have

240. This is similar to neuroscience in the criminal context, where some suggest that neuroscience will benefit the prosecution just as much as defendants. See Abram S. Barth, A Double-Edged Sword: The Role of Neuroimaging in Federal Capital Sentencing, 33 AM. J.L. & MED. 501, 509�11 (2007) (addressing how neuroscience, if it mitigates a defendant�s moral culpability, might also serve as evidence of his future dangerousness). 241. In re Air Crash at Little Rock Ark., on June 1, 1999, 291 F.3d 503, 507�08 (8th Cir. 2002). 242. Id. at 511, 513. 243. See id. at 512 (holding �that subsequent physical manifestations of earlier emotional injury are not compensable under the Warsaw Convention�). 244. The acceptance of neuroscience could lead to a long, drawn out �battle of the experts,� and it will have to be asked if this is desired. See Harvey Brown, Eight Gates for Expert Witnesses, 36 HOUS. L. REV. 743, 825 (1999) (�[W]hen experts on both sides use essentially the same methodology, a court should not strike one expert�s testimony over the other merely because it disagrees with one expert�s conclusions.�); see also supra note 59. This may have the beneficial effect, however, of eliminating weak claims or malingerers. See Brown, supra, at 826 (�A battle of the experts will usually highlight some alleged defect in [an expert�s reasoning].�). 245. See Grey, supra note 3, at 225; see also Fields, supra note 129, at 32 (discussing,



already performed promising studies on detecting invisible injuries. For instance, using a neuroscience technique called diffusion tensor imaging, German researchers were able to differentiate patients with chronic pain from healthy patients.246 Moreover, neuroscience has the capability to measure invisible injuries by applying a stimulus to painful areas.247 But how could a researcher apply a stimulus to activate emotional distress? Conceivably, he could simply ask about the traumatic event. However, this technique would place an even greater reliance on the researcher, and will therefore be less persuasive and reliable.248

Additionally, neuroscience�s ability to predict psychological states, such as emotional distress, is hotly debated in the scientific community.249 Because of these disagreements, neuroscience used for emotional distress will have a lower chance of admissibility into evidence under the Daubert or Frye standard.250 Furthermore, courts will be more receptive to neuroscience in invisible injury cases because these injuries often arise from a physical impact.251 Therefore, although similar technological weaknesses and evidentiary standards are present for both categories of harm, they will be less burdensome for invisible injuries.252

However, despite concluding that neuroscience will not be useful as evidence of an emotional injury during trial, as Betsy Grey argues, advances in neuroscience should encourage the law to revise its approach to this category of injury.253 By doing so,

in the context of physical pain, how we have a broad understanding of human pain processing through animal studies and other experiments). 246. See Chronic Back Pain Linked to Changes in the Brain, RSNA (Nov. 28, 2006), www2.rsna.org/timssnet/media/pressreleases/PDF/pressreleasePDF.cfm?ID=300 (describing how the process works and stating that the technique may �provide much-needed evidence for individual sufferers�). 247. See Fields, supra note 129, at 33; Kolber, supra note 9, at 440. 248. See Schweitzer & Saks, supra note 125, at 592�93 (identifying the impact that the researcher�s choices may have on scan results). 249. Supra note 171. 250. Id.; see supra Part IV.A.1�2 (noting the importance of support from the scientific community in both tests). 251. CDC, Heads Up: Facts for Physicians About Mild Traumatic Brain Injury (MTBI), CENTERS FOR DISEASE CONTROL & PREVENTION, www.cdc.gov/ncipc/pub-res/tbi_toolkit/physicians/mtbi/mtbi.pdf (including �blunt trauma� as a defining factor in MTBI diagnosis) (last visited Jan. 26, 2013); supra note 44 and accompanying text; see McMahon v. Reg�l Transit Auth., 704 So. 2d 392, 395�98 (La. Ct. App. 1997) (increasing a damages award because of neuroscience evidence that showed the full extent of a brain injury). 252. See Fields, supra note 129, at 33 (expressing confidence that researchers will solve technical problems relating to techniques of applying pain stimuli to measure pain). 253. Grey, supra note 3, at 225 (�[Neuroscience] advances challenge our traditional



this would eventually help an eggshell mind plaintiff, albeit in an indirect way.

Specifically, neuroscience raises the question of whether a classic negligence approach should replace traditional emotional harm doctrines.254 The physical manifestation of emotional injury requirement, one such doctrine, is often a poor indicator for severity of distress.255 As a result, the requirement �has denied recovery for serious emotional distress not accompanied by physical symptoms.�256 Indeed, some courts, questioning the logic behind these doctrines, have abandoned typical restrictions of NIED in favor of applying a standard negligence analysis.257 Although neuroscience did not influence these decisions, neuroscience research provides further support for �abandoning the more artificial and arbitrary tests for limiting emotional harm claims.�258

An additional problem that neuroscience can address is a misperception that individuals perceive pain similarly.259 This leads to courts focusing on a defendant�s conduct rather than a plaintiff�s response to that conduct.260 For example, in Lambert v. Ackerley, the Ninth Circuit upheld a judgment of equal damage awards for multiple plaintiffs who successfully sued for retaliatory discharge.261 The court agreed with the jury members� finding, stating that they �likely concluded that the emotional harm to each plaintiff was roughly equal given the similar treatment each plaintiff suffered at the hands of the defendants.�262 This type of reasoning is flawed because it assumes that all victims have the same mental toughness level. Neuroscience provides proof that individuals process pain differently, and tort law should better reflect that reality.263 Thus, the focus should be on how the subjective

doctrine and policy reasons for . . . allowing or disallowing compensation for emotional harm.�). 254. Id. at 228�29. 255. See Kolber, supra note 67, at 622. 256. Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 432, 443 (Wis. 1994). 257. Id. at 442�43; Klein v. Children�s Hosp. Med. Ctr., 46 Cal. App. 4th 889, 894 (Cal. Ct. App. 1996). 258. Grey, supra note 3, at 225. 259. Kolber, supra note 9, at 437 (noting that pain perception is based not just on sensory stimuli, but also on other factors, including psychosocial context, cultural background, and emotional state). 260. See Grey, supra note 3, at 228 (explaining that for many emotional distress torts, broad categories of behavior are defined to determine liability). 261. Lambert v. Ackerley, 180 F.3d 997, 1011, 1013 (9th Cir. 1999). 262. Id. at 1011. 263. Kolber, supra note 9, at 437, 452.



individual reacts to defendants� torts, rather than how an objective person would.

Alternatively, even if the law is unwilling to detract from its focus on defendants� conduct, by studying how individuals react to specific situations, neuroscience may �inform the normative question of defining acceptable social behaviour.�264 Similarly, if tort law continues to employ objective barriers to recovery, neuroscience can more accurately define situations where the objective reasonable person would suffer emotional distress.265 Because of the nature of these injuries, there is a strong argument that drawing lines, although arbitrary, is necessary.266 However, courts �should determine [those lines] with an awareness of the disparate impact of the rules they select.�267

VI. CONCLUSION

Neuroscience will soon assist plaintiffs with chronic pain, TBI, and other invisible injuries. Unfortunately for eggshell mind plaintiffs, the technology is not ready to be used as an objective measurement of emotional pain. This is largely due to technical weaknesses, which in turn create evidentiary difficulties. Nevertheless, the technology may force a reconsideration of illogical distinctions between �emotional� and �physical� pains. Moreover, it should support a reevaluation of specific tort policies, such as objective barriers to recovery and, in some jurisdictions, the requirement of physical manifestations of emotional injuries. Thus, neuroscience may indeed have an impact on tort law, either directly in the courtroom for invisible injuries or through policy reconsiderations for emotional injuries.

Shaun Cassin

264. Grey, supra note 3, at 228. 265. Id. at 225. 266. Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. PA. L. REV. 463, 495 (1998). 267. Id.

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