The much-awaited New Hampshire Supreme Court decision in Baxter v. Temple was handed down yesterday as a unanimous New Hampshire Supreme Court ruled that the trial court committed error in striking the testimony of a neuropsychologist who utilized the Boston Process Approach (BPA) in evaluating a plaintiff.

Readers of this blog will recall, that the trial court found that plaintiff’s neuropsychologist, Dr. Bruno-Golden used the BPA in evaluating the plaintiff. The trial court found that this approach used by Dr. Bruno-Golden, while generally accepted in the appropriate scientific literature as a sound clinical approach to evaluating injuries for brain injury, failed to show that it was “generally accepted in the making of a forensic assessment.” Thus, the trial court found that the plaintiff had not shown that the methodology was generally accepted in the appropriate scientific literature as reliable in a legal proceeding. In reaching its conclusion, the trial court focused on the plaintiff’s failure to demonstrate that the specific battery – the entire series of tests viewed as a whole – employed by plaintiff’s neuropsychologist was or could be tested, or subject to peer review and publication or as a known or potential rate of error.

The New Hampshire Supreme Court, utilizing the standards set forth by the United States Supreme Court in Daubert, rejected the trial court’s determination. The Court held that there does not exist a different standard for testing in the forensic setting as opposed to the clinical setting.

The Court noted that the BPA is a variation of the flexible battery approach that adds “a qualitative element to evaluating brain function.” The Court opinion, 22 pages in length, discusses in great detail why the flexible battery approach is admissible under the Daubert standard. The Court, in soundly rejecting defendant’s contention (defendant’s expert was David Faust, Ph.D.) that in order for a “battery” to be admissible in a forensic setting, all of the tests needed to be evaluated as an entire battery in order to determine known error rates, reasoned:

“To conclude otherwise would require the field of neuropsychology to test, peer review, and calculate error rates for an infinite number of test combinations for the interpretations to be reliable. Each time a new validated and reliable test or battery of tests such as the NPSY is developed or even updated, a clinical examiner could not use it as part of a comprehensive battery since it would be unknown how it interacted with the other tests within that battery. Since the flexible battery approach is the generally accepted approach to conducting neuropsychological assessments, the APA standards could not logically mandate that a neuropsychologist always use a comprehensive test battery that is validated as a whole.”

The New Hampshire Supreme Court also found that the evidence in the record indicated that the BPA as a flexible battery approach could be tested. It stated that while the BPA itself does not have a known or potential error rate, this was not critical to its admissibility. In its opinion, the Supreme Court concluded:

“Accordingly, we find that, when the BPA is administered in a manner consistent with the flexible battery approach, as described above, it is generally a reliable approach to neuropsychological assessment and is thus a reliable methodology for determining a person’s cognitive status.”

For those forensic neuropsychologists from the Reitan school which have consistently attacked the admissibility of the flexible battery approach, this decision stands as a monumental defeat.

On a side note, I was surprised but honored to see that my paper, The Admissibility of Neuropsychological Testimony After Daubert and Kumho, was cited as authority.