NeuroTrax Science Team and Glen M. Doniger, PhD
Video Summary: https://youtu.be/yautJzkWcd8
When cognitive impairment becomes relevant to a legal claim, subjective symptoms alone may not provide the objective evidence needed to establish the nature, extent, or functional impact of an injury. Standardized cognitive testing can help experts translate reported difficulties into measurable performance across such domains as memory, executive function, attention, processing speed, visual spatial ability, verbal function, and motor skills.
NeuroTrax has an established record of being considered as cognitive evidence in legal proceedings. It has been incorporated into federal evidentiary records, presented as part of expert testimony in jury trials, subjected to cross-examination, and reviewed by courts evaluating alleged cognitive impairment.
Under Federal Rule of Evidence 702, expert testimony must help the factfinder, be based on sufficient facts or data, and reflect the reliable application of reliable principles and methods. Under Daubert v. Merrell Dow Pharmaceuticals, courts may consider whether a methodology has been tested, subjected to peer review and publication, governed by appropriate standards, associated with a known or potential error rate, and accepted within the relevant scientific community. These factors are flexible, and admissibility ultimately depends on how the expert applies the methodology to the facts of the individual case (1,2). Thus the admissibility of NeuroTrax or any assessment platform depends on the expert’s qualifications, the scientific foundation of the methodology, the quality of the data, and the appropriateness of the interpretation.
Perhaps the strongest example of NeuroTrax’s admissibility is Barnett v. National Continental Insurance Co. Defendants filed a Daubert motion challenging a neurologist’s methodology and specifically criticized his reliance on a NeuroTrax cognitive study. They argued that NeuroTrax and other testing could not determine when the alleged traumatic brain injury occurred and therefore could not independently establish causation. The court rejected the assumption that NeuroTrax was the sole basis for the expert’s opinion. It found that the neurologist had also considered the patient’s history, clinical findings, other testing, medical literature, and alternative causes. The court concluded that the expert’s methodology was “sound and appropriate” and denied the motion to exclude his testimony. The ruling allowed NeuroTrax-supported expert evidence following a direct reliability challenge (3).
In Kang v. Romeo, a federal court considered NeuroTrax results more substantively. The assessment identified impaired memory and low-average executive, verbal, and global cognitive functioning. Together with other neuropsychological findings and MRI evidence of brain atrophy, the results contributed to the court’s conclusion that the plaintiff had produced sufficient evidence to raise a genuine dispute regarding a significant limitation from an alleged brain injury. Summary judgment on the relevant head-injury claim was therefore denied (4).
NeuroTrax has also been presented directly to juries. In Barra v. MTA, a neuropsychologist explained the computerized battery, the cognitive domains assessed, the patient’s results, and the methods used to evaluate effort. The assessment formed part of live expert testimony and was subjected to cross-examination. Thus in addition to its acceptance in medical records, NeuroTrax evidence has been scrutinized via the adversarial trial process (5).
The forensic value of cognitive data depends on whether the results reflect valid effort. Peer-reviewed research in traumatic brain injury patients in litigation developed and validated a performance-validity algorithm embedded within the NeuroTrax assessment, addressing negative response bias and credibility of test performance, central concerns in forensic neuropsychological assessment (6).
These legal and scientific reports support a clear conclusion: NeuroTrax is a viable source of objective cognitive evidence when it is administered appropriately, interpreted by a qualified professional, and integrated with clinical history, behavioral observations, medical evidence, and other relevant testing. Notably, its value in legal proceedings lies not in independently diagnosing an injury or establishing causation, but in providing valid, standardized, multidomain measurements that can strengthen a well-supported expert opinion.
References:
[1] Federal Rule of Evidence 702. (2023). Testimony by expert witnesses. Federal Rules of Evidence.
[2] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
[3] Barnett v. National Continental Insurance Co., No. 3:17-CV-153-JWD-EWD, Document 53 (U.S. District Court for the Middle District of Louisiana, January 8, 2019).
[4] Kang v. Romeo, No. 18-CV-4033 (ARR) (SMG), Document 40 (U.S. District Court for the Eastern District of New York, August 14, 2020).
[5] Barra v. Metropolitan Transportation Authority, Index No. 102339/11, Trial Transcript (New York Supreme Court, New York County, April 8, 2016).
[6] Bar-Hen, M., Doniger, G.M., Golzad, M., Geva, N., and Schweiger, A. (2015). Empirically derived algorithm for performance validity assessment embedded in a widely used neuropsychological battery: Validation among TBI patients in litigation. Journal of Clinical and Experimental Neuropsychology, 37(10), 1086–1097. DOI: 10.1080/13803395.2015.1078294
