ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
Milford M. Miller David T. Stutsman
Jason A. Scheele Jonathan W. Slagh
Fort Wayne, Indiana Elkhart, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court
Jan 31 2012, 11:44 am
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 20S03-1105-CV-293
HENRY C. BENNETT AND SCHUPAN
& SONS, INC.,
Appellants (Defendants below),
v.
JOHN RICHMOND AND JENNIFER
RICHMOND,
Appellees (Plaintiffs below).
_________________________________
Appeal from the Elkhart Superior Court, No. 20D01-0512-CT-700
The Honorable Evan S. Roberts, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 20A03-0906-CV-285
_________________________________
January 31, 2012
Sullivan, Justice.
The sole issue in this appeal is whether the trial court abused its discretion when it per-
mitted a psychologist to testify on behalf of a plaintiff in a personal injury case as to the cause of
a brain injury.1 Finding the trial court did not abuse its discretion in this regard, we affirm.
1
This case involves similar issues to those we address in another case decided today, Person v. Shipley,
No. 20S03-1110-CT-609, ___ N.E.2d ___ (Ind. 2012).
Background
In May, 2004, Henry Bennett, while operating a roll-off container truck for Schupan &
Sons, Inc. (referred to collectively as “Bennett”), rear-ended John Richmond’s vehicle. Ben-
nett’s truck weighed 42,000 pounds; Richmond was driving a van. In December, 2005, Rich-
mond and his wife sued Bennett for injuries Richmond sustained in the collision to his neck and
back.2
In October, 2006, pursuant to a referral by his attorney, Richmond underwent a neuro-
psychological evaluation with Dr. Sheridan McCabe, a psychologist. Richmond had been expe-
riencing headaches and memory loss since the accident but had not been diagnosed with a brain
injury. Dr. McCabe reviewed Richmond’s medical records and Richmond’s deposition; he also
interviewed Richmond and his wife and administered a battery of neuropsychological tests to
Richmond. As a result of the evaluation, Dr. McCabe testified that Richmond had “experienced
a traumatic brain injury in the accident.” Appellant’s App. 105. This testimony forms the basis
of this appeal.
Bennett objected to Dr. McCabe as an expert witness on three separate occasions during
this litigation, each time challenging the admissibility of Dr. McCabe’s testimony that Richmond
experienced a traumatic brain injury in the accident. Bennett first filed a pretrial motion to ex-
clude Dr. McCabe as an expert witness. The trial court denied Bennett’s motion.3 Bennett again
objected to Dr. McCabe’s testimony at trial, which the trial court overruled. Then, after the jury
returned a $200,000 judgment in favor of Richmond, Bennett filed a motion to correct error on
the basis that Dr. McCabe should not have been permitted to testify. The trial court also denied
that motion.
2
Richmond also sustained a back injury in the course of his employment in December, 2004, which ap-
parently exacerbated the injuries he had sustained in the May, 2004, accident.
3
The trial court also denied Richmond’s motion to exclude Dr. David Kareken, a psychologist who had
examined Richmond on behalf of Bennett. Bennett, however, did not call Dr. Kareken as a witness at
trial.
2
Bennett appealed, contending that the trial court erred when it permitted Dr. McCabe to
testify that Richmond had sustained a traumatic brain injury in the accident.4 The Court of Ap-
peals agreed and reversed and remanded the case for a new trial. Bennett v. Richmond, 932
N.E.2d 704, 712 (Ind. Ct. App. 2010), reh’g denied.
Richmond sought, and we granted, transfer, Bennett v. Richmond, 950 N.E.2d 1209 (Ind.
2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).5
Discussion
I
While there is little dispute that a psychologist may testify as to the existence of a brain
injury or the condition of the brain in general, the specific issue in this case – whether psycholo-
gists or neuropsychologists6 may testify as to the cause of a brain injury – is one that has divided
jurisdictions. Hutchison v. Am. Family Mut. Ins. Co., 514 N.W.2d 882, 886-87 (Iowa 1994); see
also Landers v. Chrysler Corp., 963 S.W.2d 275, 280-81 (Mo. Ct. App. 1997) (discussing juris-
dictional split), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d
220, 223, 226 (Mo. 2003) (en banc); Joseph M. Desmond, Admissibility of Neuropsychological
Evidence in New Hampshire, N.H. B.J., Winter 2007, at 12, 15 & n.40 (same). A majority of
jurisdictions have allowed such testimony, basing their reasoning on relevant statutes or case
law, evidence rules, common sense, or some combination of these. See, e.g., Fabianke v. Weav-
er, 527 So. 2d 1253, 1257 (Ala. 1988); Huntoon v. TCI Cablevision of Colo., Inc., 969 P.2d 681,
690-91 (Colo. 1998) (en banc); Valiulis v. Scheffels, 547 N.E.2d 1289, 1296-97 (Ill. App. Ct.
1989); Hutchison, 514 N.W.2d at 887-89; Landers, 963 S.W.2d at 281-82; Sanchez v. Derby,
4
Bennett’s brief in the Court of Appeals suggests that he also challenges Dr. McCabe’s qualifications to
evaluate whether Richmond in fact suffers from a brain injury. However, in subsequent filings in that
court and during oral argument before this Court, Bennett clarified that he only challenges Dr. McCabe’s
qualifications to offer an opinion as to the cause of Richmond’s brain injury.
5
We have been advised that John Richmond passed away in February, 2011, and that an Estate has been
opened for the purposes of this case.
6
“‘[N]europsychology’ is a term used by psychologists to selfdesignate themselves as having expertise in
diagnosing brain injuries.” Joseph M. Desmond, Admissibility of Neuropsychological Evidence in New
Hampshire, N.H. B.J., Winter 2007, at 12, 14.
3
433 N.W.2d 523, 525 (Neb. 1989) (per curiam); Adamson v. Chiovaro, 705 A.2d 402, 405-06
(N.J. Super. Ct. App. Div. 1998); Madrid v. Univ. of Cal., 737 P.2d 74, 76-78 (N.M. 1987);
Cunningham v. Montgomery, 921 P.2d 1355, 1358-60 (Or. Ct. App. 1996) (en banc); Howle v.
PYA/Monarch, Inc., 344 S.E.2d 157, 160-61 (S.C. Ct. App. 1986); Seneca Falls Greenhouse &
Nursery v. Layton, 389 S.E.2d 184, 186-87 (Va. Ct. App. 1990); cf. Davison v. Cole Sewell
Corp., No. 2:04-cv-852, 2006 U.S. Dist. LEXIS 52162, at *22-24 (S.D. Ohio July 28, 2006) (ap-
plying Fed. R. Evid. 702), aff’d on other grounds, No. 06-4079, 2007 U.S. App. LEXIS 16558
(6th Cir. June 29, 2007). Others have disallowed it, reasoning that psychologists are not medical
doctors trained in the physiological aspects of the human body. See, e.g., Grenitz v. Tomlian,
858 So. 2d 999, 1001-03 (Fla. 2003)7; Chandler Exterminators, Inc. v. Morris, 416 S.E.2d 277,
278-79 (Ga. 1992), overruled by statute as stated in Sinkfield v. Oh, 495 S.E.2d 94, 97 (Ga. Ct.
App. 1997); Hicks v. Cummings, No. S-85-49, 1987 Ohio. App. LEXIS 7425, at *7-8 (Ohio Ct.
App. June 12, 1987).
For its part, the Court of Appeals in this case held that psychologists are not per se un-
qualified to opine on issues of medical causation, but rather, under Indiana Evidence Rule 702,
they may be qualified to give such an opinion based on certain knowledge, skill, experience,
training, or education. Bennett, 932 N.E.2d at 710 n.3.
Although we disagree with the result reached by the Court of Appeals, we do agree with
its general approach in this case, and in doing so, align ourselves with those jurisdictions analyz-
ing the issue of whether a psychologist may testify in this regard under the various Rule 702 ana-
logs. See, e.g., Davison, 2006 U.S. Dist. LEXIS 52162, at *22-24; Huntoon, 969 P.2d at 690;
Hutchison, 514 N.W.2d at 887-88; Cunningham, 921 P.2d at 1360. Neither the criteria for quali-
fying under Rule 702 (knowledge, skill, experience, training, or education) nor the purpose for
which expert testimony is admitted (to assist the trier of fact) supports a per se rule banning psy-
7
Five members of the Supreme Court of Florida in Grenitz v. Tomlian agreed that neuropsychologists
were not qualified to testify as to the medical cause of organic brain damage, while two members rejected
a bright-line rule that neuropsychologists can never testify in this regard. Compare Grenitz, 858 So. 2d at
1002-03 (neuropsychologist not qualified to testify as to the medical cause of organic brain damage), and
id. at 1011 (Wells, J., concurring in part and dissenting in part) (same), with id. at 1007-08 (Pariente, J.,
concurring in result only) (rejecting bright-line rule that properly qualified neuropsychologist can never
testify as to the cause of brain damage).
4
chologists’ testimony in this manner. See Hutchison, 514 N.W.2d at 887-88 (criteria too broad
to allow distinctions based on profession or degree); Madrid, 737 P.2d at 77 (blanket disqualifi-
cation of those with specialized knowledge in psychology would not assist the jury). 8 Thus, we
are faced with the specific issue of whether the trial court erred in admitting Dr. McCabe’s cau-
sation testimony under Rule 702.
II
Bennett objected to Dr. McCabe’s testimony under Rule 702 on the basis that Dr.
McCabe was “not qualified to render an opinion regarding a medical diagnosis of a brain injury,”
Appellant’s App. 104, which, as noted in footnote 4, supra, we view as a challenge to Dr.
McCabe’s testimony as to the cause of Richmond’s brain injury. “A trial court’s determination
regarding the admissibility of expert testimony under Rule 702 is a matter within its broad
discretion and will be reversed only for abuse of that discretion.” TRW Vehicle Safety Sys., Inc.
v. Moore, 936 N.E.2d 201, 216 (Ind. 2010) (citations omitted). We presume that the trial court’s
decision is correct, and the burden is on the party challenging the decision to persuade us that the
trial court has abused its discretion. Id.
The trial court is considered the gatekeeper for the admissibility of expert opinion evi-
dence under Rule 702. Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d 738, 750
(Ind. 1999). With regard to the admissibility of expert testimony, Rule 702 provides:
(a) If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that the
scientific principles upon which the expert testimony rests are reliable.
8
We note that this approach differs from the per se exclusion by the Court of Appeals of nurses’ testimo-
ny in medical malpractice cases on the medical cause of injuries. See Long v. Methodist Hosp. of Ind.,
Inc., 699 N.E.2d 1164, 1169 (Ind. Ct. App. 1998) (holding that nurses are not qualified to offer expert
testimony as to the medical cause of injuries), trans. denied; see also Nasser v. St. Vincent Hosp. &
Health Servs., 926 N.E.2d 43, 50-52 (Ind. Ct. App. 2010) (following Long), trans. denied, 940 N.E.2d
822 (Ind. 2010) (table); Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388, 395-98 (Ind. Ct. App.
2010) (same), trans. denied, 940 N.E.2d 822 (Ind. 2010) (table).
5
Ind. Evidence Rule 702. “By requiring trial courts to be satisfied that expert opinions will assist
the fact-finder and that the underlying scientific principles are reliable, Rule 702 guides the ad-
mission of expert scientific testimony.” Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460
(Ind. 2001) (plurality opinion). Once the admissibility of the expert’s opinion is established un-
der Rule 702, “then the accuracy, consistency, and credibility of the expert’s opinions may
properly be left to vigorous cross-examination, presentation of contrary evidence, argument of
counsel, and resolution by the trier of fact.” Id. at 461 (citation omitted).
A
With regard to his qualifications, Dr. McCabe obtained a Masters degree in General Psy-
chology in 1956 and a Ph.D. in Counseling Psychology in 1958.9 He taught in the psychology
department at the University of Portland from 1958 to 1967 and taught courses in performing
psychological assessments at the University of Notre Dame from 1967-1997. Dr. McCabe
served as a psychological consultant for Elkhart General Hospital. He has been in clinical prac-
tice since 1981, in which he primarily performs psychological assessments. He has continued his
education by attending professional workshops specializing in forensic applications of psycholo-
gy, which “touched on subjects that relate to evaluation of traumatic brain injuries.” Appellant’s
App. 69. Dr. McCabe also testified that he has had patients referred to him by medical doctors.
Specifically, two neurologists referred cases to him for “specific aspects of brain behavior rela-
tionship questions,” id. at 70, and other general practitioners referred cases to him for insight into
the “relationship between the presenting psychological problems and . . . underlying medical is-
sues,” id.
9
In his deposition, Dr. McCabe explained that Counseling Psychology was an applied field that involved
“working with people who were not psychiatric patients, but rather kind of regular people who had some
sort of problem and counseling dealt with that,” and that it involved “the assessment of a patient’s psy-
chological well-being.” Appellant’s App. 235.
6
With the assistance of a video, Dr. McCabe testified extensively about the physiological
aspects of the brain and how a closed head injury10 might occur from a rotational impact or
whiplash motion. He explained that when the
head is forced either forward and backward or somehow side to side . . . the brain,
which is the consistency maybe of jello or oatmeal, moves at a different pace than
the hard shell of the skull. And as that kind of whiplash-kind of motion occurs,
the brain tissues are dragged across those bony protuberances and that’s the
source of the difficulty in many closed head injuries.
Id. at 79. Dysfunction, he explained, may result from this rotational motion.
Dr. McCabe also thoroughly described the methodology he used to reach his conclusion
that the accident caused Richmond’s brain injury. He interviewed both Richmond and his wife,
reviewed both Richmond’s medical records and deposition, and conducted a series of tests. Dr.
McCabe drew conclusions from each of the tests he performed on Richmond. From the
Wechsler Adult Intelligence Scale-III, which he explained was a “widely used test, almost uni-
versal” and “very good from a scientific point of view,” id. at 88, he noted a disparity between
Richmond’s verbal and performance tests that he attributed to “some sort of interference with his
cognitive processing that [he called] kind of cognitive inefficiency,” id. at 90 (emphasis omitted).
From the Wechsler Memory Scale, “another widely used clinical memory test,” id. at 90, Dr.
McCabe also noted a pattern of discrepancy or inefficiency that led him to conclude that there
were “difficulties . . . getting in the way of [Richmond’s] smooth memory function,” id. at 90.
Lastly, from the Halstead Neuropsychological Test Battery, again “a very widely used battery,”
id. at 91, Dr. McCabe concluded that Richmond’s impairment index suggested that he had “mild
to moderate brain damage,” id. at 91-92. Dr. McCabe summarized his results and conclusions as
follows:
So we put all this information together and relate it to the facts of the inju-
ry and the manifestation in his life of these growing cognitive processing difficul-
ties. And that’s how I arrived at the hypothesis that I did; namely, that in the
course of this rear-ending accident, he sustained what we saw in that video: dif-
fuse axonal injury; that is to say, that kind of motion to the head caused damage to
the connections between the cells of the brain through the axons. They were suf-
10
Dr. McCabe explained that a “closed head injury” is one where there is “no open wound to suggest that
the head was significantly injured.” Appellant’s App. 77.
7
ficiently messed up to provide him with these processing problems that he has
manifested – by the time I saw him two years later.
Id. at 92.
Over Bennett’s objection, Dr. McCabe then testified that it was his opinion that Rich-
mond “experienced a traumatic brain injury in the accident.” Id. at 105. He explained that
“[g]iven the absence of any of the symptoms of this condition prior to the accident, either in his
report, the medical record, or the observations of his wife, it seems evident that the accident pro-
duced the brain injury.” Id. at 105-06. According to Dr. McCabe, Richmond’s experiencing
“chronic headaches, a loss of cognitive efficiency, difficulties in information processing, and
some adverse personality changes” appeared to be a result of his brain injury. Id. at 106.
B
The Court of Appeals concluded that Dr. McCabe was not qualified under Rule 702 to of-
fer his opinion as to the cause of Richmond’s brain injury. Specifically, it held that a psycholo-
gist who is not a medical doctor but is otherwise qualified under Rule 702 to offer expert testi-
mony as to the existence and evaluation of a brain injury is not qualified to offer his or her opin-
ion as its cause without demonstrating some medical expertise in determining the etiology of
brain injuries. Bennett, 932 N.E.2d at 709-10. Its basis for requiring medical expertise in etiolo-
gy apparently stems from prior statements of that court that “questions of medical causation of a
particular injury are questions of science generally dependent on the testimony of physicians and
surgeons learned in such matters.” Id. at 709 (citing Hannan v. Pest Control Servs., Inc., 734
N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied).11 The reasoning behind these statements,
as explained by the Court of Appeals in another recent case, is that “physicians are uniquely
qualified to diagnose and treat disease.” K.D. v. Chambers, 951 N.E.2d 855, 861 (Ind. Ct. App.
2011) (citing Clarian Health Partners, Inc. v. Wagler, 925 N.E.2d 388, 396-97 (Ind. Ct. App.
11
Hannan, in turn, cites Brown v. Terre Haute Regional Hospital, 537 N.E.2d 54, 61 (Ind. Ct. App. 1989),
to support this proposition. Hannan, 734 N.E.2d at 679. We note that the relevant language in Brown
addressed the issue of whether expert medical testimony was required in that case to prove medical causa-
tion or whether lay persons might deduce causation without the assistance of expert testimony. Brown,
537 N.E.2d at 61. In contrast, this case does not involve lay testimony.
8
2010), trans. denied, 940 N.E.2d 822 (Ind. 2010) (table)) (discussing and applying pertinent legal
principles without reference to the present case in light of our granting transfer), trans. denied,
___ N.E.2d ___ (Ind. 2011) (table), disapproved on other grounds by Spangler v. Bechtel, 958
N.E.2d 458, 466 n.5 (Ind. 2011). As for our part, we recently let stand a trial court’s admonish-
ment to the jury during trial and subsequent jury instruction that only a medical doctor is legally
competent to offer an opinion on the medical causation of physical injuries. TRW Vehicle Safe-
ty Sys., 936 N.E.2d at 211 & n.3, 212 (holding the admonishment to be within the trial court’s
discretion and the challenge to the instruction not available for appellate review).
We note here that Dr. McCabe’s testimony on causation relates to his opinion as to the
existence and evaluation of a brain injury that he in fact was uniquely qualified to offer, especial-
ly considering his testimony that brain injuries such as Richmond’s often go undiagnosed by
medical professionals for various reasons. See Bennett, 932 N.E.2d at 709-10 (noting that the
evaluation of a brain injury was within Dr. McCabe’s field of expertise and that he had demon-
strated his qualifications to opine that Richmond sustained a brain injury from an unknown
cause). Moreover, the patterns of impairment that Dr. McCabe observed through his testing
were those associated with a traumatic brain injury. Traumatic brain injuries occur in the course
of closed head injuries,12 and closed head injuries can occur in rear-ending accidents. Thus, the
possible causes of Richmond’s brain injury were narrowed down by his testing (testing that both
Bennett and the Court of Appeals would agree Dr. McCabe was qualified to perform).
In any event, we think that the Court of Appeals imposed more stringent requirements on
Dr. McCabe than are required under Rule 702. Rule 702 requires that Dr. McCabe demonstrate
his knowledge, skill, experience, training, or education in order to be qualified as an expert, and
in fact, only one of these characteristics is necessary. See Kubsch v. State, 784 N.E.2d 905, 921
(Ind. 2003) (citing Creasy v. Rusk, 730 N.E.2d 659, 669 (Ind. 2000)). Even if we were to con-
clude that Dr. McCabe had not had any specific “education or training relevant to determining
the etiology of brain injuries,” Bennett, 932 N.E.2d at 709, he clearly demonstrated his
knowledge of how a brain injury might result from the whiplash motion experienced in a rear-
12
Dr. McCabe testified in his deposition that traumatic brain injuries do not occur in the absence of some
sort of closed head injury.
9
ending accident, how such a brain injury results in symptoms similar to those experienced by
Richmond, and how psychological and neuropsychological testing reveals the relationship be-
tween that brain injury and behavior.13 He further testified to his experience in working with
trained medical doctors on issues related to “brain behavior relationship questions” or the “rela-
tionship between the presenting psychological problems and . . . underlying medical issues.”
Appellant’s App. 70. To the extent that Dr. McCabe (1) has had no real “education or training
relevant to determining the etiology of brain injuries” or took continuing education courses that
only “‘touched on subjects that relate to evaluation of traumatic brain injuries,’” Bennett, 932
N.E.2d at 709-710 (citation omitted), (2) has worked with a limited number of neurologists on
brain behavior relationship questions, id. at 710, (3) evaluated Richmond almost two-and-a-half
years after the accident, or (4) did not have any baseline data for which to compare Richmond’s
results, these matters go to the weight and credibility of his testimony, not to his qualification to
give it.
Other jurisdictions analyzing this issue under various analogs to our Rule 702 have not
required specific qualifications in determining the etiology of brain injuries before allowing psy-
chologists or neuropsychologists to testify in this regard. They have allowed experts to testify as
to the cause of a brain injury based on qualifications similar to Dr. McCabe’s. In Huntoon, the
Supreme Court of Colorado held that a neuropsychologist was qualified to testify that a rear-
ending accident caused the plaintiff’s brain injury. 969 P.2d at 685, 691. The witness had an
“extensive educational background, including three degrees in psychology, master’s and doctoral
degrees, and further study in neuropsychology including understudy with experienced neuropsy-
chologists,” and he had explained “the way in which neuropsychological testing reveals the im-
pact of an injurious event on an individual’s ability to carry out every day activities, and the
manner in which neuropsychologists use the tests and other clinical data to diagnose brain injury
as manifested by cognitive impairment.” Id. at 691. The Huntoon court concluded that the ex-
13
Specifically, Dr. McCabe explained in his deposition: “Traumatic brain injury characteristically affects
certain kinds of cognitive functioning, not across the board. . . . because we’re not destroying the cortex.
We’re destroying connections. Consequently, we look for particular kinds of inefficiency as suggestive
of traumatic brain injury.” Appellee’s App. 238. “Other kinds of patterns,” Dr. McCabe continued,
“would not suggest traumatic brain injury, but rather some other kind of – like a tumor or some other sort
of brain injury.” Id. Dr. McCabe also testified at trial that he had rejected other possible causes of Rich-
mond’s cognitive inefficiencies through his evaluation, including back injuries, notable life events, anxie-
ty, and depression.
10
pert “had demonstrated the knowledge and experience necessary to render an opinion as a neuro-
psychologist, and that he did not exceed the scope of his expertise by addressing issues of causa-
tion.” Id. Similarly, in Hutchison, the Supreme Court of Iowa held that a neuropsychologist was
qualified to testify that a rear-ending accident did not cause the plaintiff’s brain injury, but rather
that her injuries were pre-existing. 514 N.W.2d at 884, 886. The witness had a “doctorate in
clinical psychology . . . [and] extensive postdoctoral training and professional experience.” Id. at
888. He had opened a head trauma rehabilitation program and developed a head injury severity
scale. Id.; see also id. at 887 (declining to adopt Pennsylvania’s approach requiring psychologist
to establish that his methods expose the cause of the injury and not merely its existence). But cf.
Davison, 2006 U.S. Dist. LEXIS 52162 at *23 (requiring specialized knowledge or experience in
brain injuries, but then appearing to differentiate between expertise to diagnose brain injury and
to state an opinion about its cause).
Lastly, Bennett argues that the proper qualifications to testify as to the cause of a brain
injury are those of a “neuropsychologist,” and because Dr. McCabe has not claimed to be a neu-
ropsychologist and has not presented any credentials identifying himself as a neuropsychologist,
his qualifications are distinguishable from those psychologists that were qualified to testify to the
medical cause of brain injuries in other cases. But even if we were to require under Rule 702
qualifications similar to those of a neuropsychologist to testify in this manner, our understanding
of “neuropsychology,” see footnote 6, supra, as well as the description of that term in cases,
leads us to conclude that Dr. McCabe’s practice was in fact related to neuropsychology even
though he did not describe himself as a neuropsychologist. See Huntoon, 969 P.2d at 685
(providing that “neuropsychologists perform the ‘study of brain behavior relationships and use a
battery of psychological and neuropsychological tests that are standardized in order to elicit ob-
servations of relevancy of various aspects of the brain in terms of cognitive and intellectual func-
tion’”); Cunningham, 921 P.2d at 1357 (explaining that neuropsychology focuses on the relation-
ships between brain impairment and behavior of individuals due to head injury or brain dis-
ease).14 Nor does the fact that he lacks credentials as a neuropsychologist preclude a finding that
he is qualified in this regard. Cf. Hutchison, 514 N.W.2d at 886 (reasoning that lack of board
14
In his response to a juror question, Dr. McCabe similarly described neuropsychology as “the study of
the relationship between the brain and behavior.” Appellant’s App. 184.
11
certification in neuropsychology goes to weight of testimony, not admissibility); Cunningham,
921 P.2d at 1360 (holding that neuropsychologist who was not board certified still a qualified
neuropsychologist).
We conclude that the trial court did not abuse its discretion in finding that Dr. McCabe
was qualified to offer his opinion as to the cause of Richmond’s brain injury.
C
Admissibility under Rule 702 also depends on the reliability of Dr. McCabe’s causation
testimony. In making this determination, “the trial court must make a preliminary assessment of
whether the reasoning or methodology underlying the testimony is scientifically valid and
whether that reasoning or methodology properly can be applied to the facts in issue.” Shafer &
Freeman Lakes Envtl. Conservation Corp. v. Stichnoth, 877 N.E.2d 475, 484 (Ind. Ct. App.
2007) (citation omitted), trans. denied. “[T]here is no specific ‘test’ or set of ‘prongs’ which
must be considered in order to satisfy . . . Rule 702(b).” McGrew v. State, 682 N.E.2d 1289,
1292 (Ind. 1997). The proponent of the expert testimony bears the burden of establishing the
reliability of the scientific principles on which it is based. Kubsch, 784 N.E.2d at 921 (citation
omitted).
First, Bennett argues that the scientific basis of Dr. McCabe’s testimony should have
been examined through means of a Daubert hearing and that the trial court erred in not holding
such a hearing.15 But we note that Bennett never requested that the trial court hold a Daubert
hearing and never raised an objection in the trial court on this basis. Moreover, the substance of
15
A “Daubert hearing” refers to a hearing usually conducted before trial to determine whether proposed
expert testimony meets the requirements of Rule 702. See Black’s Law Dictionary 453 (9th ed. 2009)
(providing definitions of “Daubert hearing” and “Daubert test”). Daubert refers to the U.S. Supreme
Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which outlined a
non-exhaustive list of factors that might be considered when assessing the reliability of scientific evi-
dence. Kubsch, 784 N.E.2d at 921. These factors include “whether the theory or technique can be and
has been tested, whether the theory has been subjected to peer review and publication, whether there is a
known or potential error rate, and whether the theory has been generally accepted within the relevant field
of study.” Id. (citation omitted). We most recently provided background on Rule 702 in relationship to
Daubert in Turner v. State, 953 N.E.2d 1039, 1049-51 (Ind. 2011).
12
such a hearing was by and large served during the hearing on his pretrial motion to exclude, at
which time Bennett offered and the trial court admitted Dr. McCabe’s deposition testimony. Cf.
TRW Vehicle Safety Sys., 936 N.E.2d at 212 (declining to find error in the absence of a formal
Rule 702 inquiry which was not requested by either party and the substance of which was served
in large part by an extended bench colloquy). Dr. McCabe testified in his deposition to his edu-
cational background, training, and experience; to his definition of traumatic brain injury; and to
studies showing the relationship between vehicular accidents, their damaging effects on tissue
within the brain, and how the damage to the brain sustained in vehicular accidents produces the
symptoms associated with traumatic brain injury. In turn, Bennett pointed out that Dr. McCabe
had no real medical training; that traumatic brain injury is not defined by the American Psychiat-
ric Association; and that Dr. McCabe could not recall the names of the publications in which he
had read about the studies involving vehicular accidents and brain damage. Dr. McCabe also
testified in his deposition to the tests he performed on Richmond and to the methodology he used
to opine that Richmond had suffered a brain injury in the rear-ending accident. Accordingly, the
trial court in its pretrial order concluded that Richmond had made a “good case that McCabe’s
testimony could be based upon scientific principles,” Appellant’s App. 30, but it reserved the
right to rule to the contrary at trial.16
We conclude that the trial court did not abuse its discretion in finding that Dr. McCabe’s
testimony was based on reliable scientific principles. Rule 702(b) “directs the trial court to con-
sider the underlying reliability of the general principles involved in the subject matter of the tes-
16
The trial court went on to state in a footnote:
Plaintiffs should consider, however, that they may have trouble in convincing the Court
that sound scientific principles exist to allow McCabe, a non-medical doctor, to “diag-
nose” whether Mr. Richmond sustained a traumatic brain injury as a result of the acci-
dent. This is a different question, however, from testifying that persons suffering from
traumatic brain injuries exhibit symptoms similar to the ones he observed when examin-
ing Mr. Richmond. From the record before the Court, however, the Court will not ex-
clude McCabe’s testimony wholesale. The myriad of issues that McCabe might be asked
to testify upon may very well include ones outside the bounds of reliable scientific prin-
ciples upon which he is competent to testify. Conversely, McCabe is undoubtedly com-
petent to testify on some issues. Whether these issues will be enough to convince the
trier of fact to award Plaintiffs compensation for a “traumatic brain injury” is another
question. The Court will not speculate as to each issue or adopt Defendant’s wholesale
approach of excluding McCabe as a witness at this time. To do otherwise would amount
to “micro-managing” the Plaintiffs’ case for them, which the Court will not do.
Appellant’s App. 30 n.3.
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timony, but it does not require the trial court to re-evaluate and micromanage each subsidiary
element of an expert’s testimony within the subject.” Sears Roebuck, 742 N.E.2d at 461. As
demonstrated in his testimony at trial, the general principles underlying Dr. McCabe’s testimony
– that rotational motion or whiplash can cause brain injuries and that brain injuries can be evalu-
ated through the testing he performed – were scientifically valid. Indeed, Bennett does not really
challenge the validity of these general principles but more so the specific science underlying Dr.
McCabe’s conclusion that Richmond experienced a traumatic brain injury in the accident. But
we note that Dr. McCabe’s methodologies in opining on the cause of Richmond’s injury were
similar to those employed by other qualified experts. Like Dr. McCabe, the neuropsychologist in
Huntoon had administered tests that were “part of a standardized battery described as the most
respected and widely documented in the neuropsychology profession” and had “prepared a far-
reaching background and case history to use as a backdrop for his analysis of the test results” to
reach his conclusion as to the cause of the plaintiff’s brain injury. 969 P.2d at 691. Similarly,
the neuropsychologist in Cunningham had performed “a battery of cognitive tests including intel-
ligence tests, memory tests, tests for concentration and attention, [and] tests for verbal skills and
for visual perceptual abilities” to reach her conclusion as to the cause of the plaintiff’s brain inju-
ry. 921 P.2d at 1357
Related to the reliability of his testimony, the Court of Appeals concluded that even if Dr.
McCabe were qualified to opine as to the cause of Richmond’s brain injury, his testimony lacked
probative value because he did not testify regarding the mechanics of the accident or describe the
force or speed of the impact. Bennett, 932 N.E.2d at 711. We disagree. Dr. McCabe’s opinion
was based on the undisputed fact that a rear-ending accident occurred in this case. Cf. Clarke v.
Sporre, 777 N.E.2d 1166, 1170-71 (Ind. Ct. App. 2002) (expert opinion that hypoxic event
caused mental impairment was speculative because there was no factual basis that hypoxic event
occurred). Richmond himself testified that his one-ton van, which was in a stopped position, was
hit by Bennett’s truck, which according to Bennett’s testimony weighed 42,000 pounds; as a re-
sult, Richmond’s van was propelled forward 300 feet. Dr. McCabe’s testimony was unequivocal
that whiplash motion such as that occurring in a rear-ending accident may cause brain injury and
that such a brain injury may cause the symptoms experienced by Richmond. And, as discussed
supra, Dr. McCabe employed reliable methodologies to reach his conclusion that Richmond sus-
14
tained a brain injury in the accident. Thus, we disagree with the Court of Appeals that Dr.
McCabe’s testimony was “‘nothing more than “subjective belief” and “unsupported specula-
tion.”’” Bennett, 932 N.E.2d at 711 (quoting Ind. Mich. Power Co. v. Runge, 717 N.E.2d 216,
235 (Ind. Ct. App. 1999)).
We conclude that the trial court did not abuse its discretion in finding that Dr. McCabe’s
testimony was based on reliable scientific principles that could be applied to the facts at issue.
Conclusion
Our review of the record, read in conjunction with the requirements of Rule 702, leads us
to conclude that the trial court did not abuse its discretion in admitting Dr. McCabe’s causation
testimony. The trial court extensively and thoughtfully considered the admissibility of Dr.
McCabe’s testimony on three separate occasions during this litigation. Mindful that the trial
court is afforded broad discretion in these matters, we decline to find any abuse of it. The judg-
ment of the trial court is affirmed.
Shepard, C.J., and Dickson, Rucker, and David, JJ., concur.
15