In the matter of Whilden v. Kimberly Kline, et al., defendants filed a motion in limine to bar the testimony of William W. Orrison, Ph.D. and to bar the admissibility of diffusion tensor imaging.
Plaintiff was involved in a number of motor vehicle collisions in which it was alleged that he had suffered a mild traumatic brain injury. Plaintiff was administered a 3 tesla MRI which was interpreted by Dr. Orrison. Dr. Orrison also administered diffusion tensor imaging, and auditory functional magnetic resonance imaging (fMRI). Dr. Orrison testified that in his opinion, plaintiff brain showed signs of axonal shearing, damage or missing connective fibers, abnormal blood flow pattern and a smaller than expected hippocampus. Dr. Orrison diagnosed that plaintiff had sustained a traumatic brain injury relying upon the readings of the 3 tesla MRI, the DTI, and the fMRI.
The Court was asked to consider two questions. The first was the reliability of the 3 tesla MRI and associated software in producing its results. The second issue was the appropriateness of using those results diagnostically.
The Court found that the technology was sufficiently reliable and scientifically accepted so as to of benefit to the jury. Thus, the Court denied defendant’s motion.
The Court stated:
3 tesla MRI machines are powerful and expensive. The DTI and fMRI software is also expensive. This technology is not in general use, is seldom use by clinicians and is very rarely considered (because it is so rarely available) in forming a diagnosis. This Court is convinced that it produces predictable, reproduceable results and accurately images the portion of the brain to which it is applied. For these purposes it is sufficiently accepted in the scientific and medical communities. It has been subject of a substantial number of published studies and article including peer reviewed studies. The Court noted that many of defendant’s own expert witnesses have used these same techniques and that there had been thousands of articles written on hippocampal atrophy with at least 135 involving brain injury and 62 involving traumatic brain injury. The Court also noted there had been at least 3393 articles on DTI with 176 article related to DTI and traumatic brain injury and 29 articles related to DTI and mild traumatic brain injury.
The Court did express serious concerns about the appropriateness of diagnosing mild TBI as the cause of abnormality based solely upon the presence of abnormalities revealed by the technology. It was undisputed that some if not all the abnormalities revealed by the testing could result from many causes.
Thus the Court found that if it was the intention of the plaintiff to elicit from Dr. Orrison an opinion that the presences of these abnormalities, without more, is diagnostic of mild TBI, defendants would be permitted to renew their motion and in all likelihood his opinion would be disallowed. The Court found that the technology had not yet been proven to be a sufficient value as to reasonably exclude other reasonably possible causes.
However, the Court understood that Dr. Orrison’s opinion was based not only on his reading of the diagnostic testing, but was coupled with the plaintiff’s history. The Court noted that this is a common issue that arises in tort cases and that it would be left to the attorneys to address any limitations on cross examination.