1 HONORABLE RONALD B. LEIGHTON 2 3 4 5
6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 ANAJEAN PENNY, CASE NO. C18-5195RBL 9 Plaintiff, ORDER DENYING DEFENDANT’S 10 v. DAUBERT MOTION TO EXCLUDE TESTIMONY OF PLAINTIFF’S 11 STATE FARM MUTUAL EXPERT DR. DOUGLAS COL AUTOMOBILE INSURANCE 12 COMPANY, [Dkt. # 23] 13 Defendant. 14
THIS MATTER is before the Court on Defendant’s Daubert Motion to Exclude 15 Testimony of Plaintiff Penny’s Expert Dr. Douglas Col [Dkt. #23]. The Court has reviewed the 16 materials for and against the motion. Oral argument is not necessary. For the reasons below, the 17 motion is DENIED. 18 I. FACTS 19 A. Plaintiff’s Motor Vehicle Accident 20 Penny was involved in a motor vehicle accident on August 27, 2014. The accident 21 occurred while Penny was pulled off to the side of the road, eating lunch in her car. Another 22 vehicle lost control and hit the front of Penny's vehicle while she was sitting in her car. Penny 23 claims that, during the collision, she hit the left frontal part of her head but did not lose 24 1 consciousness. Penny complains of various neurological and cognitive difficulties since the 2 accident, including memories with vision, memory, and processing. 3 B. Penny’s Neuropsychological Evaluation 4 Penny was referred to Dr. Douglas Col for a diagnostic neuropsychological evaluation 5 by a Family Nurse Practitioner. Dr. Col examined Penny on March 28, 2016, at which time he
6 administered a battery of “Assessment Instruments,” and collected a Psychosocial History of 7 Penny. Dr. Col prepared a report regarding his Psychodiagnostic Testing Evaluation that 8 summarizes the data and findings of each of the measures administered to Penny. 9 Dr. Col's report indicates that he performed over 25 different diagnostic tests of Penny. 10 Yet, Dr. Col did not administer any symptom or performance validity test designed to 11 independently evaluate the reliability and validity of the data he collected. Instead of 12 administering validity tests, Dr. Col merely made a clinical observation that Penny "appeared to 13 give her best efforts on all tasks" and noted that "the current measures of her abilities, strengths 14 and weaknesses appear to be both valid and accurate."
15 C. Symptom and Performance Validity Standards in the Field of Neuropsychology 16 Dr. Col’s subjective observation and conclusory evaluation of effort and validity does not 17 meet the standards for symptom and performance validity set forth by the National Academy of 18 Neuropsychology ("NAN") or the American Academy of Clinical Neuropsychology ("AACN"). 19 The NAN advises that the inclusion of validity testing measures in neuropsychological 20 evaluations is medically necessary. The NAN and AACN have also published recommendations 21 for best validity testing practices in an effort to standardize validity testing practices among 22 neuropsychology clinicians. 23 24 1 D. Dr. Col’s Qualifications and Methods 2 Dr. Douglas Col is a fully qualified neuropsychologist. His curriculum vitae (“CV”) was 3 made an exhibit to his perpetuation deposition taken in this case. 4 Dr. Col holds a BA in Mathematics and Psychobiology from UC Santa Cruz (1971), and 5 a Master of Science degree in neurobiology from UC Irvine (1972). The curriculum at UC Irvine
6 involved human brain dissection and instruction in the structures of the brain, including nervous 7 and vascular structures, and Dr. Col taught anatomy and physiology to pre-med students. This 8 training was outside of what a typical psychologist or neuropsychologist would receive. He 9 obtained a Master of Arts degree in Clinical Psychology from The Fielding Institute (1994), and 10 a Ph.D. in Clinical Psychology from The Fielding Institute (1997). In the 1990’s he first began 11 working with and administering neuropsychological test batteries. 12 Dr. Col is a licensed psychologist in the State of Oregon and has been practicing clinical 13 psychology and neuropsychology in southern Oregon for about 25 years. In private practice he 14 has conducted a full range of psychological and neuropsychological testing, has had extensive
15 experience evaluating and treating thousands of patients suffering from a wide spectrum of 16 maladies, including those who have suffered traumatic brain injuries. 17 Dr. Col completed postdoctoral training in advanced neuropsychology with Dr. Elkhonon 18 Goldberg, through The Fielding Institute in 2005-06. According to Dr. Col’s testimony, Dr. 19 Goldberg is one of the world’s experts in neuropsychology, who has been one of the examiners 20 for board certification in the field of neuropsychology. 21 E. Penny’s Neuropsychological Evaluation 22 In March of 2016 Dr. Col performed neuropsychological evaluation/testing on Penny 23 over the course of three sessions. This was done on referral from Penny’s treating nurse 24 practitioner to try and determine the extent of the problems Penny was having and was not a 1 forensic evaluation. The testing battery he used included overlap/similarities to the battery used 2 later by Defendant’s neuropsychologist, Dr. Doppelt, and there were similarities in the scores. 3 As part of the evaluation Dr. Col took a history from Penny, in which she described her auto 4 accident and subsequent symptoms. 5 Based on Dr. Col’s experience and education, he saw common themes between what
6 Penny reported and other traumatic brain injury sufferers, and that the parts of the brain most 7 susceptible to traumatic injuries correlated with many of her symptoms. As part of examining 8 Penny, Dr. Col also reviewed certain of her medical records, including imaging reports, and 9 neurologist and primary care notes. 10 After conducting the history and neuropsychological test battery, Dr. Col rendered a 11 diagnostic impression of neurocognitive disorder due to traumatic brain injury. When he testified 12 in his perpetuation deposition, he likewise opined that Penny’s symptoms and test findings were 13 consistent with a TBI, and that on a more probable than not basis/reasonable medical probability, 14 Penny sustained a traumatic brain injury in the collision. There was no indication in his testing
15 that Penny wasn’t giving good effort on the tests. He noted in his report that “she appeared to 16 give her best efforts on all tasks, and the current measures of her abilities, strengths and 17 weaknesses appeared to be both valid and accurate.” 18 F. Methods of Neuropsychological Validity Testing 19 Based on the postgraduate instruction, in his neuropsychological testing Dr. Col does not 20 utilize specific tests designed to test for malingering; instead, he uses the methods taught by Dr. 21 Goldberg to interpret results from other tests in the battery and the patterns of scores to 22 determine whether a test subject is giving good effort or was being accurate in their answers. To 23 paraphrase, Dr. Col was taught to test specific areas of the brain with multiple different tests, 24 which would alert him to anomalous results, and in a way substituted for specific malingering 1 tests. In Dr. Col’s experience as a practitioner in the field, validity tests are generally not done in 2 clinical neuropsychology, whereas forensic psychologists always use them. Dr. Col avoids doing 3 forensic work. 4 As noted in Defendant’s supporting materials (in this instance the 2005 NAN position 5 paper published in the Archives of Clinical Neuropsychology, one of the purposes of which was
6 to offer “recommendations” for appropriate symptom validity assessment), although clinical 7 neuropsychologists are responsible for making determinations about the validity of the 8 information and test data obtained during evaluations, the manner in which such determinations 9 are made may vary considerably depending on the context.
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1 HONORABLE RONALD B. LEIGHTON 2 3 4 5
6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 ANAJEAN PENNY, CASE NO. C18-5195RBL 9 Plaintiff, ORDER DENYING DEFENDANT’S 10 v. DAUBERT MOTION TO EXCLUDE TESTIMONY OF PLAINTIFF’S 11 STATE FARM MUTUAL EXPERT DR. DOUGLAS COL AUTOMOBILE INSURANCE 12 COMPANY, [Dkt. # 23] 13 Defendant. 14
THIS MATTER is before the Court on Defendant’s Daubert Motion to Exclude 15 Testimony of Plaintiff Penny’s Expert Dr. Douglas Col [Dkt. #23]. The Court has reviewed the 16 materials for and against the motion. Oral argument is not necessary. For the reasons below, the 17 motion is DENIED. 18 I. FACTS 19 A. Plaintiff’s Motor Vehicle Accident 20 Penny was involved in a motor vehicle accident on August 27, 2014. The accident 21 occurred while Penny was pulled off to the side of the road, eating lunch in her car. Another 22 vehicle lost control and hit the front of Penny's vehicle while she was sitting in her car. Penny 23 claims that, during the collision, she hit the left frontal part of her head but did not lose 24 1 consciousness. Penny complains of various neurological and cognitive difficulties since the 2 accident, including memories with vision, memory, and processing. 3 B. Penny’s Neuropsychological Evaluation 4 Penny was referred to Dr. Douglas Col for a diagnostic neuropsychological evaluation 5 by a Family Nurse Practitioner. Dr. Col examined Penny on March 28, 2016, at which time he
6 administered a battery of “Assessment Instruments,” and collected a Psychosocial History of 7 Penny. Dr. Col prepared a report regarding his Psychodiagnostic Testing Evaluation that 8 summarizes the data and findings of each of the measures administered to Penny. 9 Dr. Col's report indicates that he performed over 25 different diagnostic tests of Penny. 10 Yet, Dr. Col did not administer any symptom or performance validity test designed to 11 independently evaluate the reliability and validity of the data he collected. Instead of 12 administering validity tests, Dr. Col merely made a clinical observation that Penny "appeared to 13 give her best efforts on all tasks" and noted that "the current measures of her abilities, strengths 14 and weaknesses appear to be both valid and accurate."
15 C. Symptom and Performance Validity Standards in the Field of Neuropsychology 16 Dr. Col’s subjective observation and conclusory evaluation of effort and validity does not 17 meet the standards for symptom and performance validity set forth by the National Academy of 18 Neuropsychology ("NAN") or the American Academy of Clinical Neuropsychology ("AACN"). 19 The NAN advises that the inclusion of validity testing measures in neuropsychological 20 evaluations is medically necessary. The NAN and AACN have also published recommendations 21 for best validity testing practices in an effort to standardize validity testing practices among 22 neuropsychology clinicians. 23 24 1 D. Dr. Col’s Qualifications and Methods 2 Dr. Douglas Col is a fully qualified neuropsychologist. His curriculum vitae (“CV”) was 3 made an exhibit to his perpetuation deposition taken in this case. 4 Dr. Col holds a BA in Mathematics and Psychobiology from UC Santa Cruz (1971), and 5 a Master of Science degree in neurobiology from UC Irvine (1972). The curriculum at UC Irvine
6 involved human brain dissection and instruction in the structures of the brain, including nervous 7 and vascular structures, and Dr. Col taught anatomy and physiology to pre-med students. This 8 training was outside of what a typical psychologist or neuropsychologist would receive. He 9 obtained a Master of Arts degree in Clinical Psychology from The Fielding Institute (1994), and 10 a Ph.D. in Clinical Psychology from The Fielding Institute (1997). In the 1990’s he first began 11 working with and administering neuropsychological test batteries. 12 Dr. Col is a licensed psychologist in the State of Oregon and has been practicing clinical 13 psychology and neuropsychology in southern Oregon for about 25 years. In private practice he 14 has conducted a full range of psychological and neuropsychological testing, has had extensive
15 experience evaluating and treating thousands of patients suffering from a wide spectrum of 16 maladies, including those who have suffered traumatic brain injuries. 17 Dr. Col completed postdoctoral training in advanced neuropsychology with Dr. Elkhonon 18 Goldberg, through The Fielding Institute in 2005-06. According to Dr. Col’s testimony, Dr. 19 Goldberg is one of the world’s experts in neuropsychology, who has been one of the examiners 20 for board certification in the field of neuropsychology. 21 E. Penny’s Neuropsychological Evaluation 22 In March of 2016 Dr. Col performed neuropsychological evaluation/testing on Penny 23 over the course of three sessions. This was done on referral from Penny’s treating nurse 24 practitioner to try and determine the extent of the problems Penny was having and was not a 1 forensic evaluation. The testing battery he used included overlap/similarities to the battery used 2 later by Defendant’s neuropsychologist, Dr. Doppelt, and there were similarities in the scores. 3 As part of the evaluation Dr. Col took a history from Penny, in which she described her auto 4 accident and subsequent symptoms. 5 Based on Dr. Col’s experience and education, he saw common themes between what
6 Penny reported and other traumatic brain injury sufferers, and that the parts of the brain most 7 susceptible to traumatic injuries correlated with many of her symptoms. As part of examining 8 Penny, Dr. Col also reviewed certain of her medical records, including imaging reports, and 9 neurologist and primary care notes. 10 After conducting the history and neuropsychological test battery, Dr. Col rendered a 11 diagnostic impression of neurocognitive disorder due to traumatic brain injury. When he testified 12 in his perpetuation deposition, he likewise opined that Penny’s symptoms and test findings were 13 consistent with a TBI, and that on a more probable than not basis/reasonable medical probability, 14 Penny sustained a traumatic brain injury in the collision. There was no indication in his testing
15 that Penny wasn’t giving good effort on the tests. He noted in his report that “she appeared to 16 give her best efforts on all tasks, and the current measures of her abilities, strengths and 17 weaknesses appeared to be both valid and accurate.” 18 F. Methods of Neuropsychological Validity Testing 19 Based on the postgraduate instruction, in his neuropsychological testing Dr. Col does not 20 utilize specific tests designed to test for malingering; instead, he uses the methods taught by Dr. 21 Goldberg to interpret results from other tests in the battery and the patterns of scores to 22 determine whether a test subject is giving good effort or was being accurate in their answers. To 23 paraphrase, Dr. Col was taught to test specific areas of the brain with multiple different tests, 24 which would alert him to anomalous results, and in a way substituted for specific malingering 1 tests. In Dr. Col’s experience as a practitioner in the field, validity tests are generally not done in 2 clinical neuropsychology, whereas forensic psychologists always use them. Dr. Col avoids doing 3 forensic work. 4 As noted in Defendant’s supporting materials (in this instance the 2005 NAN position 5 paper published in the Archives of Clinical Neuropsychology, one of the purposes of which was
6 to offer “recommendations” for appropriate symptom validity assessment), although clinical 7 neuropsychologists are responsible for making determinations about the validity of the 8 information and test data obtained during evaluations, the manner in which such determinations 9 are made may vary considerably depending on the context. Symptom validity assessment “may 10 include” specific tests, indices and observations, but need not always include tests designed to 11 assess symptom validity. Commonly used methods for assessing symptom validity include 12 evaluating consistency of information obtained from interviews, observations and/or test results, 13 performance on neurocognitive and psychological tests, symptom validity tests, and forced- 14 choice tests. Determination of how to assess response validity is made by the clinician based on
15 the unique factors of the given evaluation. It is noted that the potential for symptom 16 fabrication/exaggeration is higher in forensic contexts than in many clinical contexts. 17 Administration of specific symptom validity tests are medically necessary “when determined by 18 the neuropsychologist to be necessary” for assessment of response validity. 19 Also, from Defendant’s supporting materials (in this instance the 2017 survey of INS 20 and NAN member neuropsychologists regarding their practices published in the Archives of 21 Clinical Neuropsychology), validity testing is described as including “administration of tasks that 22 appear difficult but are actually so cognitively simple that even neurologically damaged 23 individuals can successfully complete them.” Although the 2017 survey authors explain that 24 1 there is “emerging consensus” among experts that validity tests should be employed in every 2 assessment, in the practice of these professionals there is hardly uniform agreement on and 3 adherence to the recommendation that specific validity tests be utilized in all assessments. To 4 quote the authors: “there is still significant variability in the degree to which validity tests are 5 utilized during neuropsychological assessment.” Nearly 30% of U.S.-based respondents did not
6 agree that every test battery should include a measure of effort. If they suspected poor effort in 7 the testing, respondents who still sometimes (36.5%), most of the time (17.9%), or always 8 (13.6%) still went ahead and interpreted the cognitive test results of a test battery outnumbered 9 those who never (6.5%) or rarely (25.5%) did. Respondents who believed every battery should 10 include a measure of validity reported spending more of their clinical work time on forensic 11 evaluations relative to those who do not so believe. 12 II. ANALYSIS 13 Rule 702 of the Federal Rules of Evidence requires that "expert testimony must be both 14 reliable and relevant." FRE 702. The party offering the evidence—in this case, Penny—has the
15 burden to show that: (1) the expert is qualified due to having knowledge, skill, experience, 16 training or education in the field of said testimony; (2) such testimony will assist the trier of fact 17 to understand evidence or determine a fact in issue; (3) the testimony is based on sufficient facts 18 or data; (4) the testimony is the product of reliable principles and methods; and (5) the witness 19 reliably applies the principles and methods to the facts of the case. FRE 702; FRE 104(a); 20 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 21 (1993). 22 23 24 1 Daubert and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999) establish the 2 Court’s “gatekeeping” function with respect to the admissibility of expert testimony under Fed. 3 R. Evid. 702. Kumho included the following admonition: 4 We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will 5 help determine that testimony's reliability. But, as the Court stated in Daubert, the test of reliability is “flexible,” and Daubert’s list 6 of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court 7 the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability 8 determination. [bold emphasis added; “may” as in the original]
9 526 U.S. at 41-42. See also United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000) (Rule 702 is 10 construed liberally in considering admissibility of testimony based on other specialized 11 knowledge); Messick v. Novartis Pharm. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014), quoting 12 Daubert, 509 U.S. at 588 (Rule 702 should be applied with a “liberal thrust” favoring 13 admission). 14 Dr. Col is a qualified neuropsychologist trained as a clinician. In other words, he tries to 15 diagnose and treat patients. The forensic neuropsychologist evaluates and opines on the 16 existence, extent and the cause of the problem. There is ample room in the Courtroom for both 17 experts. The witnesses can be exposed to vigorous cross-examination and the jury can take the 18 resulting information and discern whether the plaintiff is faking or exaggerating her symptoms 19 and the genesis of any health issues related thereto. The only issue before the Court at this 20 // 21 // 22 // 23 24 1 juncture is whether Dr. Col’s testimony is based on sufficiently reliable methodology to render it 2 admissible. The Court is satisfied that it is. 3 This motion is DENIED. 4 IT IS SO ORDERED. 5 Dated this 24th day of July, 2020.
6 A 7 Ronald B. Leighton 8 United States District Judge
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