Comment: Eggshell Minds and Invisible Injuries: Can Neuroscience Challenge Longstanding Treatment of Tort Injuries?

Do Not Delete 2/18/2013 4:10 PM
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.
929
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
1
no effect on the guest’s claim. Assuming the other elements of
negligence are established, the hotel will be liable for the full
2
extent of the injury.
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
5
“invisible” injury. 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
10
offered.” 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

13
tort claims alleging physical harm rather than emotional harm.
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
16
eggshell skull rule.
Under the eggshell skull rule, the defendant takes the
17
plaintiff as he finds him. 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
21
not have occurred to a person without a pre-existing infection.
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
23
could or could not have been foreseen by him.” 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
25
physically frail plaintiffs on defendants.
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
26
physical injury. 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
32
person could not be expected to endure it. 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,
33
a plaintiff attempting to prove this claim has a hard row to hoe.”
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
34
plaintiff in fact suffered severe distress. 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,
36
physical injury is a required element for NIED. 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,
39
which have each placed a variety of limitations on recovery. 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
45
develop brain injury. 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
49
injuries is unknown. 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
52
nervous system for weeks, months, even years.” 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
56
motivated by financial gain. 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
57
symptoms.” 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
67
symptoms will greatly limit chances of recovery. 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
68
injury in fact exists. 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
71
have debated the capabilities of neuroscience for years. 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
74
could not resist citing neuroscience findings.
Many scholars claim that neuroscience will eventually
75
change every aspect of the law. 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
78
flaws.
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
83
questions.” 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
85
structure of a person’s brain. When these functional techniques
are used in combination with structural brain imaging
techniques, it is possible “to correlate neural activity in specific
86
anatomical regions with behavioral or cognitive functions.”
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
88
1. How the Technology Works. “The fMRI technique
89
measures blood oxygenation levels.” When there are changes in
brain activity, such as when a painful stimulus occurs, blood flow
90
throughout the brain changes. 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
92
becomes paramagnetic. 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
95
paramagnetic, which will increase an MRI signal.
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
98
activity in the brain. “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
101
injecting a radioactive tracer into the bloodstream. As brain
activity increases in certain areas, the tracers move
throughout the bloodstream and can serve as indirect markers
102
for neural activity. 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
105
technology such as fMRI and PET, there are two primary
94. Id.
95. Id.
96. Id.
101. Id. at 18–19; 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-
108
detection evidence would invade the province of the jury. 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
111
for acceptance of neuroscience-based lie-detection technology.
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
118
brain over time. 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
120
weight neuroscientific evidence is given. First, as a practical
matter, the currently large costs of obtaining neuroimaging scans
121
may deter tort litigants from using them. Moreover, although
there is much evidence that emotions are activated by neurons
firing in the brain, neuroimaging does not directly measure
122
neuronal activity. 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
127
individuals, rather than individuals themselves. “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
132
much additional pain the defendant caused. 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.
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).
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
135
falsehood they’re telling.” 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
136
self-interest and accuracy.” 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
144
to their advantage in the immediate future.
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
149
the task at hand.” 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
152
important. General acceptance is still a factor for reliability.
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
154
to the use of a PET scan expert in a personal injury case. 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
157
results. 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
160
test. 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
162
judges have been uncomfortable in their role as gatekeepers.
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
165
In re Welding Fume Products Liability Litigation. 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
168
otherwise. The court rejected the defendant’s motion,
concluding that defendant’s evidence—including neuroscience
evidence—was not dispositive on the cause of the plaintiffs’
169
condition. 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
171
technique or technology offered. 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
174
neuroscience is used more and more outside of the tort context.
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
178
effect of neuroscience images on lay people in a mock trial. 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
182
to grant a verdict of not guilty by reason of insanity. 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,
184
which is already routinely permitted in trials.
A proponent of neuroscientific evidence could point to
similar studies to counter the assertion that jurors are powerless
185
to refuse its allure. 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
189
to use neuroscience. Likewise, companies will continue to
market the technology to lawyers and potential litigants.190
Moreover, scholars theorize that neuroscience will have a broad
191
application in many different areas of the law. 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
195
likewise played a part in modifying death penalty policy.
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-
197
traumatic stress disorder (PTSD).
The Court of Appeals of Michigan confronted this problem in
198
Allen v. Bloomfield Hills School District. In Allen, the plaintiff
was operating a train when he observed a government-owned
and -operated school bus maneuver around the lowered gate and
199
enter the railroad crossing. 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
201
the bus. 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
205
injury.
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
206
brain.” 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
210
without accompanying bodily harm. 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
215
measures with enough accuracy to assess pain reliably.
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
218
this testimony to be accurate. Another method is the “per diem”
219
calculation. 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
221
disproportionate to a plaintiff’s actual suffering.
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.
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
222
calculating damages.
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
227
against the board. 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).
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
233
plaintiff’s brain injury was not caused by the anesthesia.
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
236
helped prove the existence of the injuries. Plaintiffs could,
therefore, use similar neuroscientific evidence to get past
summary judgment, making causation a jury question, as was
237
the case in Matuszak. 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
239
will also seek to admit their own neuroscientific evidence.
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).
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
243
injuries, 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
249
scientific community. 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
253
to revise its approach to this category of injury. 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
256
physical symptoms.” 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
258
harm claims.”
An additional problem that neuroscience can address is a
259
misperception that individuals perceive pain similarly. 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
262
defendants.” 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).
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
264
normative question of defining acceptable social behaviour.”
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
266
necessary. 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

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.

Comment: Eggshell Minds and Invisible Injuries: Can Neuroscience Challenge Longstanding Treatment of Tort Injuries?

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Comment: Eggshell Minds and Invisible Injuries: Can Neuroscience Challenge Longstanding Treatment of Tort Injuries?

Hochgeladen von

Copyright:

Verfügbare Formate

Do Not Delete 2/18/2013 4:10 PM

EGGSHELL MINDS AND INVISIBLE INJURIES:

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

II. SETTING UP THE PROBLEM ................................................... 933

III. BACKGROUND ON NEUROSCIENCE ........................................ 939

930 HOUSTON LAW REVIEW [50:3

IV. NEUROSCIENCE IN THE COURTROOM .................................... 947

V. NEUROSCIENCE’S POTENTIAL IMPACT ON TORT LAW ........... 954

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

2013] EGGSHELL MINDS 931

suffers a panic attack, traumatic neurosis, and soon after

932 HOUSTON LAW REVIEW [50:3

reasons for this disparate treatment are valid ones. Emotional

2013] EGGSHELL MINDS 933

neuroscience could affect tort law and whether it should alter

II. SETTING UP THE PROBLEM

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

1. Physical Injuries. American courts have long favored

13. Grey, supra note 3, at 207.

934 HOUSTON LAW REVIEW [50:3

Nevertheless, the court held the defendant responsible for the

2. Emotional Harms. Damages for emotional harms, on the

22. Id. at 404.

2013] EGGSHELL MINDS 935

outrageous conduct must be “so outrageous in character, and so

3. Invisible Injuries. Invisible injuries, the third category

31. Id. § 46 cmt. d.

936 HOUSTON LAW REVIEW [50:3

survivor appears outwardly ‘normal.’”42 This category includes

2013] EGGSHELL MINDS 937

type.53 Fibromyalgia has been referred to as “one of the most

B. The Problem of Proving Pain

53. Id.; 99 AM. JUR. 3D Proof of Facts § 1 (2008).

938 HOUSTON LAW REVIEW [50:3

to express and hard for others to understand.63 Moreover, some

2013] EGGSHELL MINDS 939

arbitrary amount.70 However, perhaps with recent advancements in

III. BACKGROUND ON NEUROSCIENCE

940 HOUSTON LAW REVIEW [50:3

claim that neuroscience will soon undermine free will entirely—

2013] EGGSHELL MINDS 941

differentiate between the brain’s various substances did not exist

82. Id. at 2–3.

942 HOUSTON LAW REVIEW [50:3

an increase in oxygen, blood flow increases more than needed,

2. Two Primary Approaches to Help Tort Litigants.

2013] EGGSHELL MINDS 943

ways that the technology can help plaintiffs prove their

106. Kolber, supra note 67, at 602–04.

944 HOUSTON LAW REVIEW [50:3

B. Strengths of the Technology

C. Weaknesses of the Technology

2013] EGGSHELL MINDS 945

using the BOLD signal.123 Some claim that the relationship

946 HOUSTON LAW REVIEW [50:3

A weakness specific to the lie-detecting function of

D. The Future of Neuroscience

2013] EGGSHELL MINDS 947

with greater precision. These technologies may never be perfect.

IV. NEUROSCIENCE IN THE COURTROOM

141. Kolber, supra note 67, at 589.

948 HOUSTON LAW REVIEW [50:3

A. Admissibility of Neuroscientific Evidence