Tuesday, May 11, 2021
A Florida trial court has denied a defendant’s Daubert motion to strike the plaintiff’s expert’s testimony regarding qEEG testing. In Snyder v. ESURANCE Property and Casualty Insurance Company, Case No. 01-2018-CA-2651 (8th Judicial Circ. Ala. Chua. Cty., FL), the defendant sought to bar the testimony of Dr. Lisa Avery, an eligible board neurologist, from testifying regarding her interpretation of a quantitative electroencephalogram (qEEG). To support its motion, the defendant submitted “only” three articles and argued at a hearing that using qEEG for diagnosing mild traumatic brain injury had been prohibited by the American Academy of Neurology (AAN) for over 20 years. Noteworthy in the court’s opinion was that the AAN guideline relied upon by the defense was “retired” in January 2020 and was no longer the official position of the Academy.
The defendant presented two expert witnesses: Dr. Mary Schriver, a board- certified neurologist with a sub-specialty in neurophysiology, and Dr. Jason Demery, a board-certified neuropsychologist. While Dr. Schriver testified that she did not believe qEEG was a valid test for the diagnosis of traumatic brain injury, she did acknowledge that other doctors did use the test for that purpose. During the cross-examination, the plaintiff demonstrated that Dr. Schriver was unfamiliar with the software utilized by Dr. Avery, who was not an expert in interpreting it, and did not examine the raw data generated by the qEEG.
Dr. Demery also admitted that he was not qualified to administer or utilize a qEEG, nor was he an expert in qEEG in general. Dr. Demery disputed some findings in the numerous peer reviewed articles submitted by the plaintiff and raised false positives due to sleep apnea or medication, but did not produce, cite or reference any additional peer reviewed articles to support his position.
Contrasting the defendant’s presentation, the plaintiff submitted numerous peer-reviewed articles comprising over 140 pages, including book chapters and scientific journals supporting the use of qEEG in TBI diagnosis. The peer-review literature produced by the plaintiff denied the error rate argument supported by the defendant and established the wide-spread use of qEEG in diagnosing traumatic brain injury throughout the VA Hospital system. The plaintiff’s experts, Dr. Avery and Dr. Richard Boehme, M.D., testified that they used qEEG in their everyday practices and were familiar with the literature and its use. Due to their clinical experience, the court found the plaintiff’s witnesses to be persuasive.
After the court conducted a Daubert analysis, they found Dr. Avery was qualified, her testimony was based upon sufficient facts and data, and that utilizing qEEG as a tool to help diagnose traumatic brain injury was sufficiently reliable, scientific, and valid. The court also found that Dr. Avery reliably applied the qEEG to the specific case before it.
The court found that the case law presented by the defendant was not controlling as the cases cited were decided before the retirement of the AAN position and most were decided under a Frye standard. Based on the evidence offered at two hearings, the court concluded that qEEG testing related to traumatic brain injury was reliable and scientific when used with other tests or data, rejecting and denying defendant’s motion to strike.
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