Challenges to the Practice of Clinical Neuropsychology
I was certainly excited when I received my recent Archives of Clinical Neuropsychology and saw that Erin D. Bigler, Ph.D. had written an article entitled "A motion to exclude and the "fixed" versus "flexible" battery in "forensic" neuropsychology: Challenges to the practice of clinical neuropsychology." I was excited because Dr. Bigler’s articles are always thoughtful, well written and most importantly take on the sham positions being taken by defense forensic neuropsychologists. I was also excited because this article touched upon an article I had written in 2001 entitled "Admissibility of Neuropsychological Testimony After Daubert and Kumho (Neurorehabilitation, 16, 93-101) and which was cited by Dr. Bigler in his article.
In my article, I did not take a position as to whether or not the fixed and/or flexible neuropsychological test batteries were admissible after Daubert and Kumho but simply laid out the arguments pro and con.
Fortunately, Dr. Bigler has taken the issue a step farther, attacking the position of Dr. Reitan and many defense forensic neuropsychologists who argue that the Halstead-Reitan Neuropsychological Test Battery (HRNB) is the only battery (fixed or flexible) that satisfies the demanding standards of Daubert and Kumho.
As stated in the article’s abstract,
"Two recent publications in ACN have been used by defense attorneys as the centerpiece for an argument that only a "fixed" battery approach, exemplified by the Halstead-Reitan battery satisfies the Daubert criteria for admissibility; and therefore, the HRB represents the only method of forensic neuropsychological assessment that should be admitted into evidence."
Apparently, Dr. Bigler was retained by plaintiff’s counsel to refute and rebut a motion to exclude the testimony of a neuropsychologist who had utilized a flexible test battery approach. Dr. Bigler’s expert report in that case presumably serves as the basis and foundation for his excellent Archives article. Presumably, defense counsel utilized the articles by Hom entitled "Forensic Neuropsychology: Are we there yet?" (2003) and Russell, "The Fundamental Psychometric Status of Neuropsychological Batteries" (2005) as well as that of Paul Lees-Haley to argue that the flexible battery approach was inadmissible.
Dr. Bigler points out that the fixed HRNB standardization "is from the beginning era of modern science where the "brain damage" group was physician-defined by the standards of that era, an era that long predated contemporary neurodiagnostics advanced by neuroimaging and clinical neuroscience." As correctly pointed out by Dr. Bigler, reliance on Hom and Russell’s statements, "if taken at face value, would have excluded all of the so-called flexible neuropsychological tests, approaches and comprehensive additional norms-including age, education and demographically adjusted norms." Further, acceptance of the Hom and Russell positions "also ignores all the clinical practice methods used by neuropsychologists involving interview, observation, clinical inference, neuropsychological screening measures and testing of mental status."
Dr. Bigler, never passing up the opportunity to point out the inadequacy of the work of Paul Lees-Haley, points out that while the defense attorneys cited Lees-Haley’s 1996 article in their motion to exclude, they fail to understand that Lees-Haley’s own research there fails to satisfy the standard set forth in their legal brief.
For those who encounter a motion to exclude their own neuropsychological expert who utilize a flexible battery or even a fixed battery different from the Halstead-Reitan Neuropsychological Battery, they must look to this outstanding article.
Certainly, this article will find a sacred place in my library.