2007-102, SHELBY BAXTER, BY HER MOTHER AND NEXT FRIEND, PATRICIA BAXTER v. CHARLES TEMPLE & a.

The minor plaintiff, Shelby Baxter, by and through her

amicus curiae. brief and orally), for the American Academy of Clinical Neuropsychology, as Hall, Stewart & Murphy, P.A., of Manchester (Francis G. Murphy on the

Connor on the brief, and Mr. Burt orally), for the defendants. Wiggin & Nourie, P.A., of Manchester (Gary M. Burt and Doreen F.

plaintiff. Leifer and Andrew S. Wainwright on the brief, and Mr. Leifer orally), for the the brief), and Thornton & Naumes, LLP, of Boston, Massachusetts (Neil T. to press. Errors may be reported by E-mail at the following address: Seufert Professional Association, of Franklin (Christopher J. Seufert on

page is: http://www.courts.state.nh.us/supreme. v.

SHELBY BAXTER, BY HER MOTHER AND NEXT FRIEND, PATRICIA BAXTER

editorial errors in order that corrections may be made before the opinion goes No. 2007-102 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as specialist. On the day of trial, the defendants moved

p. 2 found substantial evidence of lead paint contamination.

expected earnings capacity . . . .”

inadmissible. lead poisoning; and (3) Arthur Kaufman, M.Ed., a vocational rehabilitation lengthy order, subsequently ruled that Dr. Bruno-Golden’s testimony was concluded that the plaintiff suffers from organic brain syndrome caused by and behavioral status; (2) William Bithoney, M.D., a pediatrician who

expectancy, brain damage, past and future pain and suffering, and loss of poisoning and the effects thereof including but not limited to: reduced life lead paint present in the apartment caused her to suffer from “lead paint

the defendants to criticize Dr. Bruno-Golden’s testimony. The trial court, in a

by administering a series of neuropsychological tests to determine her cognitive

six micrograms per deciliter. On September 26, 1995, the New Hampshire paint poisoning. The test results revealed an elevated blood lead level of thirty- allow Dr. Bruno-Golden to testify to her administration and scoring of three plaintiff, who was almost fourteen months old at the time, was tested for lead Evidence 702, RSA 516:29-a (2007), and The plaintiff moved for reconsideration, requesting that the trial court

paint. She contended that her exposure to and ingestion of the high levels of

Golden’s testimony; and (3) David Faust, Ph.D., a psychologist presented by pediatric neuropsychologist introduced by the plaintiff to support Dr. Bruno- Barbara Bruno-Golden, Ed.D., a neuropsychologist who evaluated the plaintiff heard testimony from: (1) Dr. Bruno-Golden; (2) Sandra J. Shaheen, Ph.D., a Thereafter, the trial court held a six-day Daubert hearing. The trial court

Pharmaceuticals, Inc., 509 U.S. 579 (1993).

that the defendants failed to warn her of the presence and dangers of the lead

To prove her case, the plaintiff designated three expert witnesses: (1)

and May 11, 1996, the plaintiff and her parents resided in an apartment in

The plaintiff subsequently filed this action, alleging, among other things,

and remand.

The record supports the following relevant facts. Between May 11, 1995,

resulted in dismissal of the plaintiff’s case. We reverse in part, vacate in part, defendants, Charles and Kelly Temple. The exclusion of these witnesses not proceed and dismissed the case.

p. 3 opinion or otherwise. 3

an expert to prove her case, the trial court concluded that the plaintiff could testimony was unreliable and inadmissible. Because the plaintiff no longer had Dr. Bruno-Golden’s reports. The trial court found that Dr. Bithoney’s Golden’s testimony as unreliable. education, may testify thereto in the form of an argument because we agree that the trial court erred in excluding Dr. Brunothe legislature enacted RSA 516:29-a, which provides: reliability of expert testimony to Rule 702. Id. at 614. Subsequently, in 2004, In Baker Valley, we applied the Daubert framework for evaluating the

609, 613 (2002). defendants and denied the plaintiff’s motion. reliability to be admissible. Baker Valley Lumber v. Ingersoll-Rand, 148 N.H. N.H. R. Ev. 702. Thus, expert testimony must rise to a threshold level of

admissible because it was based upon sufficient information independent from

an expert by knowledge, skill, experience, training, or

and (3) excluding Dr. Bithoney’s testimony. We address only the first or to determine a fact in issue, a witness qualified as

will assist the trier of fact to understand the evidence If scientific, technical, or other specialized knowledge

Rule 702 states:

would “confuse the jury, not assist it.” The trial court agreed with the II. Standards for Admissibility of Expert Testimony

from testifying at trial, but contended that Dr. Bithoney’s testimony was unreliable findings.” The plaintiff conceded that Mr. Kaufman was precluded Bruno-Golden to testify to the results of the two IQ tests and the attention test; unreliable because they were “based almost exclusively on Dr. Bruno-Golden’s excluding Dr. Bruno-Golden’s testimony as unreliable; (2) not permitting Dr. On appeal, the plaintiff contends that the trial court erred by: (1)

that Dr. Bruno-Golden administered and, further, that such limited testimony not properly and reliably be extracted from the comprehensive battery of tests the defendants.” The defendants objected, arguing that these three tests could

of Dr. Bithoney and Mr. Kaufman, arguing that both experts’ opinions were Subsequently, the defendants moved in limine to exclude the testimony

the plaintiff alleged were “not subject to the methodological objections raised by specific tests – two tests measuring IQ and one test measuring attention – that p. 4 4

methodology underlying the testimony is scientifically valid.’” which the reliability of scientific testimony is challenged.” Kumho Tire Co., Ltd. Indeed, those factors do not all necessarily apply even in every instance in Moreover, the list of Daubert factors are “meant to be helpful, not definitive. they generate.” State v. Dahood, 1 p. 4 48 N.H. 723, 727 (2002) (quotation omitted). “must be solely on the principles and methodology, not on the conclusions that other factors specific to the proffered testimony. N.H. at 616 (citation omitted). The inquiry is a flexible one, and t he focus weight and credibility to be afforded an expert’s testimony.” Baker Valley, 148 methodology’s reliability before permitting the fact-finder to determine the scientific literature. citation omitted). “The trial court functions only as a gatekeeper, ensuring a ___ N.H. ___, ___ (decided April 4, 2008) (quoting Daubert, 509 U.S. at 592-93;

requirement that the court preliminarily assess ‘whether the reasoning or factors we applied in publication; Baker Valley, and section I(b) codifies Daubert ’s “Section II of RSA 516:29-a unambiguously codifies the four Daubert

(b) In making its findings, the court may consider supported by theories or techniques that: circumstances, whether the expert’s opinions were ( p. 4 4) Are generally accepted in the appropriate

(3) Have a known or potential rate of error; and

(2) Have been subjected to peer review and and methods; and (1) Have been or can be tested;

data;

testimony, the court shall consider, if appropriate to the II. (a) In evaluating the basis for proffered expert

methods reliably to the facts of the case. (c) The witness has applied the principles and

(b) Such testimony is the product of reliable principles

(a) Such testimony is based upon sufficient facts or

unless the court finds: I. A witness shall not be allowed to offer expert testimony plaintiff was not reliable.

p. 5 court concluded that Dr. Bruno-Golden’s methodology as administered to the

publication, or has a known or potential rate of error. Additionally, the trial Golden in this case was, or could be, tested, was subject to peer review and battery – the entire series of tests viewed as a whole – employed by Dr. Bruno-

trial court focused upon the plaintiff’s failure to demonstrate that the specific

literature as reliable in a legal proceeding.” In reaching this conclusion, the Bruno-Golden’s methodology “is generally accepted in the appropriate scientific Therefore, the trial court found that the plaintiff had not shown that Dr.

that it is “generally accepted . . . in the making of a forensic assessment.”

brain injury.” However, the court concluded that the evidence failed to show scientific literature as a sound clinical approach to evaluating individuals for Approach as used by Dr. Bruno-Golden is generally accepted in the appropriate

Approach (BPA) in evaluating the plaintiff. It found that “the Boston Process

the weight and credibility of the expert’s conclusions.” complexities or satisfactorily weigh its inadequacies.” procedure as to skew the methodology itself.

The trial court found that Dr. Bruno-Golden used the Boston Process

III. Admissibility of Dr. Bruno-Golden’s Testimony

process is available to highlight the errors and permit the fact-finder to assess rather than excluded from jurors’ scrutiny for fear that they will not grasp its Id. Otherwise, “the adversary testimony to be inadmissible, the flaws in application must so infect the adversary process – competing expert testimony and active cross-examination – methodology to the facts of the case.” Langill, ___ N.H. at ___. However, for the to also “examine whether a witness has in actuality reliably applied the In Langill, we interpreted RSA 516:29-a, I(c) as requiring the trial court

(citation omitted). the evidence but do not determine its admissibility.” Dahood, 148 N.H. at 727 deficiencies or weaknesses are a matter of defense, which affect the weight of (quotation omitted). Thus, “[i]f [the evidence] is of aid to a judge or jury, its

scientific testimony rests upon good grounds, . . . it should be tested by the based on what is known.” Id. (quotation omitted). “[A] s long as an expert’s testimony must be supported by appropriate validation – i.e., good grounds, certainties in science.” Id. (quotation omitted). Rather, “the proposed scientific scientific testimony must be known to a certainty; arguably, there are no 727. To be sure, “i t would be unreasonable to conclude that the subject of scientific knowledge must be absolute or irrefutable.” Dahood, 148 N.H. at “Importantly, the Daubert test does not stand for the proposition that

relevant only “if appropriate to the circumstances.” RSA 51 p. 6 6:29-a, II(a). v. Carmichael, 526 U.S. 137, 151 (1999). Thus, one or more of these factors is 6

and to prescribe rehabilitation strategies for their remediation.’”

“subjected to the traditional testing mechanisms of the adversary process.”). Ballew, 435 U.S. at 24 p. 6 6 (Powell, J. concurring) (criticizing majority’s “heavy reliance” upon studies not courts have sought out research data on their own when the parties have failed to provide them.”). But see Social Science Research, 15 Law & Hum. Behav. 571, 571 (1991) (“Increasingly in recent decades, research” and “numerous other sources” not in the record); see also Monahan & Walker, Judicial Use of 1995) (en banc) (evaluating the reliability of the Horizontal Gaze Nystagmus test based partly upon its “own provide[d] the only basis, besides judicial hunch, for a decision”); standardized) battery approach and the flexible battery approach. State v. O’Key, 899 P.2d 663, 682, 686 (Or. upon [the Court] by the parties,” the Court considered all of the cited sources “carefully because they U.S. 223, 231-32 n.10, 232-39 (1978) (noting that although only “some” of the studies “ha[d] been pressed we may consider it to fully understand the science at issue in this case. See, e.g., Ballew v. Georgia, 435 We note that, although this particular source is not in the record, consistent with the practice of other courts, 1 determination without regard to the trial court’s findings. assessment techniques to diagnose specific cognitive and behavioral deficits case, we review its scientific reliability independently and make our own the brain and behavior, including the use of psychological tests and Neuropsychological Testing, 51 Archives of Neurology 854 (1994)). But see specialty of psychology concerned with the study of the relationships between Medical Advisor § 23:17, at 23-20 (2005) (citing Levin, A Guide to Clinical Guar. Co., 791 A.2d 826, 869 (Del. Super. Ct. 2000); 2 L. Russ et al., Attorneys NeuroRehabilitation 93, 95-96 (2001); see also Minner v. American Mortg. & 1 Admissibility of Neuropsychological Testimony After Daubert and Kumho, 16 particular case, however, we review that evidence independently.” See Stern, two major approaches to the selection of neuropsychological tests: the fixed (or discretion. Dictionary 1049 (25th ed. 1969)). The field of neuropsychology has developed State, 702 So. 2d 202, 209 n.5 (Fla. 1997) (quoting Stedman’s Medical

Golden, the BPA, is not likely to vary according to the circumstances of each record and pertinent legal and scientific sources. Neuropsychology is “‘a We derive the following facts from our review of the evidence in the

A. Overview of the BPA and Dr. Bruno-Golden’s Testimony scientific evidence is not likely to vary according to the circumstances of a See Langill, ___ N.H. at ___. that methodology to the facts of this case for an unsustainable exercise of review the trial court’s finding that Dr. Bruno-Golden did not reliably apply

Here, because the reliability of the methodology used by Dr. Bruno-

N.H. at 72 p. 6 6 (citation omitted).

149 N.H. 243, 251 (2003). “When the reliability or general acceptance of novel under Rule 702 for an unsustainable exercise of discretion. State v. Pelletier, We generally review a trial court’s determination of expert reliability conjunction with information from parents or teachers, to determine whether

p. 7 neuropsychologist evaluates the results of an initial cognitive battery test, in also uses the concept of hypothesis testing, pursuant to which the good sampling of that behavior. Like the flexible battery approach, the BPA

perception, academic performance, and self-control. W.P. Milberg verbal memory, visual memory, planning, attention span, language, visual satellite tests to assess various domains of cognitive functioning, such as

examiner may choose from a number of published tests that will each provide a

battery approach, the BPA, in most instances, uses a collection of core and

are not predetermined; the approach is to look at domains of behavior and an Grant & Kenneth M. Adams eds., 1986). These core or satellite tests, however, Neuropsychological Assessment of Neuropsychiatric Disorders 65, 67 (Igor Boston Process Approach to Neuropsychological Assessment, in

qualitative element to evaluating brain function. Consistent with the flexible The BPA is a variation of the flexible battery approach that adds a of functioning. A.2d at 86 (quotation omitted). injury is recent or has had an opportunity to stabilize. Stern, thus providing more “in-depth testing in areas of specific deficits,” Minner, 791 impairment, identify the area of the brain involved, and assess whether the nature of the impairments resulting from that damage, Stern, supra at 96, examiner to not only identify brain damage, but also better define the specific L. Russ contrast to the fixed battery approach, the flexible battery approach allows the Battery, to all patients, regardless of their complaints or the referral question. supra §§ 23:17, :19, at 23-20 to -21, 23-22; see also Stern, supra at 95-96. In Neuropsychological Test Battery or the Luria-Nebraska Neuropsychological Test deficits identified by the core tests and test the hypothesis. L. Russ et al., administers additional specially selected tests to further explore cognitive formulate a hypothesis concerning the patient’s cognitive functioning, and then group of core tests, uses the results in conjunction with the patient’s history to Under the flexible battery approach, the neuropsychologist administers a approach). A battery is a group of tests used to evaluate neurological domains

neuropsychologist to identify the presence or absence of brain damage or et al., supra §§ 23:17, :18, at 23-20, 23-21. This approach allows a

administers a uniform series of tests, such as the Halstead-Reitan Pursuant to the fixed battery approach, the neuropsychologist

approaches: a fixed battery approach, a flexible battery approach, or a flexible survey requesting that neuropsychologists self-identify as using one of three Archives of Clinical Neuropsychology 33, 48 (2004) (presenting results of a States and Canada: A Survey of INS, NAN, and APA Division 40 Members, 20 Rabin et al., Assessment Practices of Clinical Neuropsychologists in the United concentration as it would be during a normal school day.

p. 8 The WISC test serves as both an intellectual measure and as a screening tool

because it provides her with an opportunity to observe the child’s attention and neuropsychological battery, which she prefers to administer in one full day flexible battery approach, she then administers a comprehensive the Wechsler Intelligence Scale for Children (WISC), which yields a full scale IQ. relative to others in the child’s age group. Generally, Dr. Bruno-Golden uses test, normally an intelligence test, that allows her to screen the child’s abilities

percent adult. When conducting neuropsychological assessments of children,

complete while she is administering tests to the child. Consistent with the

presented in the test. W.P. Milberg approach to the testing situation. She then administers a standardized core

clinical practice was approximately seventy-percent pediatric and thirty-

gives the child’s parents a behavioral screening questionnaire for them to

behavior the patient demonstrates in attempting to solve the problems child to draw a picture of herself for the purpose of observing the child’s Dr. Bruno-Golden begins the morning session of testing by asking the information concerning the patient’s life situation, Stern,

or tested well over 200 children with lead paint exposure. As of 2005, her

with the person referring the child. At the beginning of the testing day, she associated with the test-score approach, Stern, diagnostic interview, reviews available medical and school records, and speaks conclusions, and recommendations that result from the one-sided database on a particular test, but also the qualitative nature and effectiveness of the Before beginning any testing, Dr. Bruno-Golden conducts a clinical

BPA. taking behavior, purportedly allows a neuropsychologist to obtain significant i.e., the

Dr. Bruno-Golden is a neuropsychologist who has supervised, reviewed

the fixed battery approach, including the distortions in the interpretations, neuropsychologist assesses not only the quantitative scores a patient achieves

Instead, because qualitative data, such as direct observation of a patient’s test- BPA rejects a completely quantitative approach to neuropsychological testing. 66. Thus, in an effort to provide a more precise delineation of functions, the behavior, cf. Minner, 791 A.2d at 869. See also W.P Milberg et al., supra at 65precision and sensitivity in observing and assessing particular domains of

associated with a purely test-score approach to psychological assessment, like The BPA was developed in response to the perceived disadvantages

exploration. and to what extent additional areas of brain function require further judgment, academic performance, memory and learning, and problem solving.

p. 9 psychosocial history as provided by her parents as well as the plaintiff’s

domains of functioning, including sensory-motor, language, visual-spatial tests allow Dr. Bruno-Golden to obtain information concerning various provide a more comprehensive neuropsychological assessment. These specific known error rate. Dr. Bruno-Golden also reviewed the plaintiff’s medical and

tests for the afternoon session that will measure these potential deficits and and satellite tests, each of which has been tested and peer reviewed, and has a session, Dr. Bruno-Golden followed the methodology outlined above, using core old, and in 2004, when she was approximately nine years old. During each

completed behavioral screening questionnaire. 9 ROCF test and breaks for lunch. At this time, the parents return the After the CCPT, Dr. Bruno-Golden completes the delay recall portion of the figure for a third time. thirty minutes after the copy, the administrator instructs the child to draw the

behavioral issues that require further exploration. She then selects specific

two evaluations – in 2002, when the plaintiff was approximately seven years

screen. The computer scores the test and interprets the child’s performance.

child to draw what she remembers. The materials are again taken away, and,

morning tests, which together indicate whether the child exhibits cognitive or

issues that might be associated with her lead paint exposure. She conducted In this case, Dr. Bruno-Golden evaluated the plaintiff for neurological

child to press a button every time she sees any letter that is not an “X” on the computerized test that measures a child’s attention. The test instructs the away from the child, and after a few minutes, the administrator instructs the (CCPT) during this thirty-minute interval. The CCPT is a fifteen-minute figure and asks the child to copy that figure. The materials are then taken immediate recall, and delayed recall. First, the administrator shows the child a the responses to the screening questionnaire and evaluating the results of the During lunch, Dr. Bruno-Golden formulates a hypothesis by considering stimuli,” but may administer a verbal test. J.E. Meyers & K.R. Meyers,

language sample and administers the Connors Continuous Performance Test Assess. Resources, Inc. 1995). Dr. Bruno-Golden generally obtains a written language-based issues. The ROCF test consists of three steps: copy, Complex Figure Test and Recognition Trial: Professional Manual 8 (Psych.

recall trial, the examiner may not administer tasks involving “visuospatial During the thirty-minute interval between the copy trial and the delayed

(ROCF) test, which assesses visual construction skills, non-verbal memory, and Next, Dr. Bruno-Golden administers the Rey-Osterrieth Complex Figure

versions and has been updated through the years. that identifies potential neurological issues. The WISC test has several organic mental disorder.

p. 10 Bruno-Golden diagnosed the plaintiff with, among other things, an unspecified

current WISC-IV scores with respect to her 2002 WISC-III scores.” Thus, Dr. general intellectual decline since her 2002 assessment, as indicated in her developing language based learning problems, particularly in light of her overall

ROCF, and CCPT tests, which she found to be critical to her opinion. tests. Ultimately, her conclusions were grounded in the results of the WISC III, Golden ruled out potential problems based upon the results of these additional

paint exposure, and opined that the plaintiff “continue[d] to be at risk for

and the CCPT to be critical in reaching her conclusions.

comprehensive assessment. Consistent with hypothesis testing, Dr. Bruno-

neurobehavioral presentation was consistent with her known history of lead lengthy and more complex information.” She noted that the plaintiff’s associated with memory and retrieval problems with both verbal and nonverbal

Range Achievement Test (WRAT)–Decoding, ROCF, Children’s Memory Scale,

tests in language and motor skills because they were important to provide a

Bruno-Golden found the results of the WISC IV, WISC III–Digital Span, Wide with slight variations to account for the difference in age. Ultimately, Dr. and the directions. Dr. Bruno-Golden also decided to conduct additional core selected tests that evaluated the same cognitive or behavioral constructs, but morning session, the plaintiff had frequently asked the doctor to repeat herself that this part of the plaintiff’s working memory was intact because, during the

concluded that the plaintiff had “impairments in the areas of visual dysgraphia

Scales. California Verbal Learning Test-Children’s Version, and the Children Memory Range Achievement Test-Third Revision, the Wisconsin Card Sorting Test, the

extensive memory testing than she had administered in 2002. Otherwise, she

measures verbal working memory for structured linguistic material to ensure

Based upon the results of these assessments, Dr. Bruno-Golden

the Grip Strength Test, the Peabody Picture Vocabulary Test III, the Wide

plaintiff’s parents and teachers, Dr. Bruno-Golden gave the plaintiff more her IQ in 2002. As a result of this decline and reported concerns from the learning, required more testing. For example, she selected a test that In 2004, the plaintiff’s IQ was approximately twenty points lower than

afternoon sessions, including the Finger Tapping (or Finger Oscillation) Test, the CCPT. She then evaluated the results and selected additional tests for the administered the ROCF test, obtained a language sample, and administered

Golden determined that the areas of attention, problem solving, memory, and In 2002, after evaluating the results of the morning tests, Dr. Bruno-

to draw a picture of herself, administered a version of the WISC test, medical and school records. On both testing days, she instructed the plaintiff p. 11 [plaintiff]’s presentation and age parameters

a distinction between the two approaches. that defense counsel elicited this testimony in the context of an article drawing Golden, as the defendants assert, “self-select[ed] tests according to the for the afternoon session. Nothing in this procedure suggests that Dr. Bruno- 516:29-a. The defendants assert that for Dr. Bruno-Golden’s testimony to be based upon those results, developed a hypothesis and selected satellite tests

BPA in a manner consistent with the flexible battery approach.

admitted that Dr. Bruno-Golden used a “completely flexible approach,” we note battery approach, as Dr. Bruno-Golden did, the BPA is admissible under RSA children; that is, she administered a core set of tests in the morning, and then,

when testing for lead paint exposure. Accordingly, Dr. Bruno-Golden used the

that the defendants are correct that Dr. Shaheen or Dr. Bruno-Golden distinction exists, and, if it does, the nature of that distinction. To the extent We now address whether, if used in a manner consistent with the flexible approach, or a flexible approach). Thus, we question whether such a she used the same methodology that she normally uses when evaluating

tested the same cognitive and behavioral constructs, that she always uses battery approach, Dr. Bruno-Golden used the same set of core tests, which (Emphasis added.) Rather, in line with the defendants’ definition of the flexible

selection.

using one of three approaches: a fixed battery approach, a flexible battery plaintiff, Dr. Bruno-Golden employed the Boston Process Approach.” Indeed, “in administering the 2002 and the 2004 neuropsychological tests on the although not further describing the BPA), that the BPA is a flexible battery approach. Further, as the trial court found, battery approach, but noting that the BPA is another school of thought, Second, even assuming such a distinction exists, the defendants agree neuropsychological testing are the fixed battery approach and the flexible

uniformly distinguish between these approaches to neuropsychological test

(presenting results of survey requesting that neuropsychologists self-identify as approach.” We disagree. and Rabin et al., supra at 48

22 to -23 (explaining that the two major approaches to clinical battery approach), with L. Russ et al., supra §§ 23:17, :20, at 23-20 to -21, 23flexible approach, and then comparing the fixed battery approach to the flexible thought regarding test selection are the fixed battery approach and a more

Compare Stern, supra at 95 (explaining that the two schools of

First, as Dr. Shaheen testified, the field of neuropsychology does not

approach” to neuropsychological assessment, not the “flexible battery The defendants assert that Dr. Bruno-Golden used a “completely flexible

B. Reliability of the BPA and Dr. Bruno-Golden’s Methodology combined scores.

p. 12 scores should be available.

justification of the interpretation based on the

supporting validity data for such combinations of or a neuropsychological battery is being applied, then measures to suggest a requisite combination of scores,

to this case.

for the specific combination of tests and the

section in those standards discussing “test interpretation.” abilities) or personality are packaged with interest

these provisions in context, we find that the defendants have misapplied them own battery consistent with the BPA. that arise with the administration of non-standardized batteries.” Reviewing Id. at 131. combination”; and (2) “[t]he Standards . . . expressly address the validity issues

combining tests is based and determine the rationale review the evidence on which the procedures for combination with one another, the professional should

American Psychological Association (APA) has approved, and language from a abilities (e.g., achievement or specific or general

Comment: For example, if measures of developed

fixed battery, such as the Halstead-Reitan battery, rather than devising her essence, the defendants’ position is that Dr. Bruno-Golden should have used a when there is identifiable literature that assesses the validity of the the trial court found, that her testimony is inadmissible. Distilled to its

If a publisher suggests that tests are to be used in

Standard 12.4 states: of the Standards for Educational and Psychological Testing, which the

then argue: (1) “the APA Standards allow practitioners to combine tests only arguably did not meet these three requirements, the defendants contend, and Psychological Testing 117, 120-22 (1999) (APA Standards). The defendants Educational Research Association et al., Standards for Educational and

In support of this position, the defendants cite provisions 12.4 and 12.5

testimony. Because the specific combination of tests Dr. Bruno-Golden used this proposition as true in evaluating the admissibility of Dr. Bruno-Golden’s peer review, and have a known or potential error rate. The trial court accepted evaluating the plaintiff as a whole must have been tested, have been subject to admissible, the comprehensive neuropsychological batteries that she used in p. 13 Bruno-Golden used in her assessment.

domains of cognitive functioning, and used many of the same tests that Dr.

effects of lead in children used groupings of tests that examined various evaluating children with lead poisoning. He agreed that a valuable study of the individual tests she found to be critical to her conclusions for the purpose of

Faust, agreed that it was proper for Dr. Bruno-Golden to administer each of the

required to administer and interpret the selected tests. commensurate with the test user qualifications training and supervised experience also should be

various regions of the cerebral hemispheres.

individual tests selected by a neuropsychologist in combination be valid and tested in order for it to be used to make a neuropsychological assessment. battery as a whole, that is, the combination of all the core and satellite tests, be Neuropsychological Society 261, 264-66 (2004). and Neuropsychological Outcome in Adolescence, 10 J. Int’l

and specificity to impairments arising from trauma to

this standard. As the comment indicates, this standard requires that the Contrary to the defendants’ assertions, Dr. Bruno-Golden complied with does not mandate, as the defendants suggest, that Dr. Bruno-Golden’s specific APA Standards, supra at 132.

NEPSY battery discussed below, since the purposes of the assessment as determined by available

combination of tests of known diagnostic sensitivity area of the brain, it is necessary to select a assessment for evidence of an injury to a particular Comment: For example, in a neuropsychological

battery results in a requisite combination of scores. The standard, however,

if Dr. Bruno-Golden had administered an entire published battery, such as the complex diagnosis should be appropriate for the

The selection of a combination of tests to address a

Standard 12.5 provides:

particular combination of measures for various domains and suggests that the

combined scores. As the example indicates, this standard would have applied and a justification for her interpretation of those tests based upon the battery, she needed to have a rationale for the specific combination of tests, in combination with one another as suggested by the publisher of a particular This standard requires that, when Dr. Bruno-Golden administered tests tests, such as the Halstead-Reitan battery.

p. 14 administered a comprehensive set of neuropsychologic

neuropsychologic test batteries, . . . none have

Although some investigators have used sections of 14 obtained may thus represent false-negative errors. were used and in which nonsignificant findings were clinically assessing whether a particular child’s exposure to lead has resulted everyday functional capacity. it does not sensitively examine specific domains of functioning such as

moderately increased blood levels and fifteen “control” children. neuropsychological battery by administering the tests to fifteen children with

attention and concentration, and reasoning.” memory, visual-motor and spatial, language and associated functions . . . ,

increased lead levels in which less sensitive techniques However, nothing in the record indicates that a neuropsychologist who is impairment index. As discussed above, this battery is limited in usage because Id. at 624.

research study, he standardized the results of his self-selected Notably, since Dr. Faust administered the foregoing tests as part of a

did, Dr. Faust tested general areas of functioning, including “psychomotor, [was] available on all of the tests and items.” Id. at 625. As Dr. Bruno-Golden well as “a number of clinical tests,” noting that “[e]xtensive normative data prominent neuropsychologist, and used “standardized psychometric tests” as tests alone or limited cognitive batteries. Studies on study, Dr. Faust, like Dr. Bruno-Golden, adopted a battery from the work of a sensitive to cognitive deficit than standard intelligence provides a broad-based definition of brain damage by yielding a brain damage Id. at 623-24. Rather than administer the Halstead-Reitan battery in his were proper, he would use the Halstead-Reitan battery, a fixed battery that Dr. Faust testified that if he had to evaluate the child, and the circumstances

Neuropsychologic assessment methods are more

Pediatrics 623 (1987). In the study, Dr. Faust noted: what group of tests he would give to evaluate a child with elevated lead levels, Blood Lead Levels: Effects on Neuropsychologic Functioning in Children, 80 developed his own battery of tests. See Faust & Brown, Moderately Elevated In fact, in a study he conducted of lead poisoning in children, Dr. Faust

Evidence in Brain Damage Litigation, For the Defense, June 1994, at 8.

tests is more reliable than another for evaluating lead poisoning. When asked battery of tests that is proper for this evaluation; and no particular battery of poisoning in children; there is no consensus in the field as to a particular reasonably and justifiably select different groups of tests for evaluating lead Dr. Faust also conceded that different neuropsychologists may functioning.

p. 15 properly address the problem presented by evaluating the relevant domains of

batteries are frequently used.”

reliable for admissibility.”).

examiner with some latitude to use her judgment and select tests that may validated as a whole. required set of tests for evaluating a question. Instead, it provides the trained definition, the flexible battery approach does not require the examiner to use a

select tests to evaluate those domains. Furthermore, the purposes, including career counseling and neuropsychological assessment, test APA Standards, supra at 121-22. The paragraph cited begins: “For some APA Standards entitled “Test Interpretation” in support of their position. See Rabin The defendants also rely upon certain language found in a section of the

her initial results on a sufficient battery of tests,” her “results are sufficiently

proper context, Dr. Bruno-Golden’s specific battery was not required to be testing, Standards, supra at 121. Accordingly, when Standard 12.5 is viewed in its battery approach is the generally accepted approach for neuropsychological to the plaintiff in a manner consistent with the flexible battery approach. By encourage examiners to conduct individualized assessments. See APA violate this standard. Underscoring this conclusion is the fact that the flexible APA Standards hypothesis concerning which domains of behavior may be affected, and then upon the individual and the initial general testing, e.g., the IQ test, form a The concept of hypothesis testing itself requires the examiner to, based “flexible” approach, and seven percent used a “standardized battery approach”);

favored a “standardized battery”), and Dr. Bruno-Golden administered the BPA suitable for evaluating lead poisoning in children, Dr. Bruno-Golden did not approach,” twenty percent favored a “flexible approach,” and eleven percent that sixty-eight percent of clinical neuropsychologists favored a “flexible battery et al., supra at 48 (providing results of a similar 2004 survey showing

conceded that the Halstead-Reitan battery was a compromised choice. “flexible battery approach” toward test selection, eighteen percent used a of clinical neuropsychologists, and showing that seventy-six percent used a Clinical Neuropsychologist 325, 333 (2006) (providing results of a 2005 survey Professional Practices, Beliefs, and Incomes of U.S. Neuropsychologists, 20 The see, e.g., Sweet et al., The TCN/AACN 2005 “Salary Survey”:

poisoning, and Dr. Bruno-Golden’s selection of tests that were individually In light of the lack of a discrete combination of tests sensitive to lead

exposure resulted in any cognitive and behavioral deficits. Indeed, Dr. Faust never been proven to be suitable for sensitively detecting whether lead demonstrate that a neuropsychologist must follow a fixed battery that has the battery of tests he or she uses for the particular child. Nor does the record in any cognitive deficits, even in the context of a lawsuit, must “standardize” imply some known validity evidence.

p. 16 in her left hemisphere. Pursuant to the above language in the verification rather than probabilistic statements that needed further verbal testing to clearly understand how the plaintiff functions qualification that they are hypotheses for future not sensitively measure. Dr. Bruno-Golden therefore determined that she the resulting inferences may be presented with the

indicates a weakness in the plaintiff’s verbal performance that the WISC III did should be identifiable. If the literature is incomplete,

examining the specific construct.

the verbal portion of the WISC III. The literature indicated that this variation validity that supports the proposed interpretations Golden noticed a scatter or variation in the plaintiff’s scores on two subtests of The literature reporting evidence of reliability and neuropsychological battery used for assessment. For example, Dr. Bruno- may be postulated on the basis of test score patterns. interpretation of the interaction between the WISC and the individual test Dr. Bruno-Golden did not need further literature to then validate her the context of a clinical evaluation, as opposed perhaps to a research study,

battery, not the interaction between every test of a comprehensive constructs underlying configurations of test outcomes

Dr. Bruno-Golden properly used literature to interpret the intertest scatter. In

standardized batteries. Further, this section addresses the language, however, does not distinguish between standardized and non-

interpretation of the interactions between the subtests of an individual test performances. Higher order interactions among the seemingly requires that evidence of reliability and validity support a proposed interaction among constructs underlying test Even so, if interpreted in the context of flexible batteries, the language are interpreted to reflect a construct or even an

Bruno-Golden’s conclusions, not her methodology. test score patterns, and, if it applies at all, would likely be relevant to Dr.

issues . . . arise with the administration of non-standardized batteries.” The The defendants argue that this language demonstrates that “validity

Id.

methods and scores, patterns of test results frequently

spatial ability, and language usage.”

When psychological test batteries incorporate multiple

nonverbal reasoning, mechanical reasoning, clerical speed and accuracy, cognitive domains and “often include tests of verbal ability, numerical ability, conducting neuropsychological assessments.

p. 17 poisoning, it seems to no longer be the generally accepted methodology for

to be validated and reliable, could ever assist a trier of fact in a legal case.

the concept of hypothesis testing.

reviewed, and has known or potential error rates outside the context of lead defendants, the fixed battery approach, has been tested, has been peer experts have a reliable basis for their testimony.” neuropsychological assessment. Further, while the approach proffered by the

psychiatrist or psychologist since, in their view, all combinations of tests need

a known or potential error rate contravenes the flexible battery approach and

to resolve the scientific debate, but to determine whether [the] plaintiff[’s] approach is the prevalent and well-accepted methodology for However, “[t]he role of the Court when ruling on a Daubert motion is not

article” in an APA journal, the

implication of the defendants’ position is that no neuropsychologist, or even 333; Rabin et al., supra at 48; Faust et al., supra at 8. Therefore, the to have been tested, have been subject to peer review or publication, and have See, e.g., Sweet et al., supra at

flexible battery would qualify as an expert, even though the flexible battery approach to conducting neuropsychological assessments, the Moreover, under the defendants’ position, no psychologist who uses a that battery. Since the flexible battery approach is the generally accepted flexible-battery are scientifically valid or they are not.” Citing a “hallmark

defendants’ position that Dr. Bruno-Golden’s battery as a whole was required Issues, 56 American Psychologist 128, 154 (2001). Accordingly, the Psychological Testing and Psychological Assessment: A Review of Evidence and the basis of idiographic referral questions” is recommended. See Meyer et al., assessment battery using tests typically employed in practice and selected on batteries is a questionable practice, and that “a flexible, multimethod

battery since it would be unknown how it interacted with the other tests within not in ‘test batteries.’” “Either the individual tests selected for inclusion in a Similarly, for neuropsychological testing, “test validity lies in individual tests, chosen by the neurologist be studied as a whole with regard to validity.” that the specific battery of neurological exam procedures and diagnostic tests clinical medicine, the amicus curiae explains that “[t]here is no expectation The amicus curiae supports this conclusion. Drawing a comparison to

comprehensive test battery that is validated as a whole. could not logically mandate that a neuropsychologist always use a

updated, a clinical examiner could not use it as part of a comprehensive and reliable test or battery of tests, such as the NEPSY, is developed or even combinations for the interpretations to be reliable. Each time a new validated peer review, and calculate error rates for an infinite number of test To conclude otherwise would require the field of neuropsychology to test, review and publication. p. 18 areas. Additionally, as Dr. Shaheen testified, the BPA has been subject to peer session by conducting standardized tests that would identify any problem

demonstrate that the individual tests he or she administered as part of the

reliability.

results and form a hypothesis, and test that hypothesis in the afternoon

meet the threshold for reliability, a neuropsychologist applying the BPA must meets three of the four Daubert factors is the use of standardized tests. To generally accepted methodology for clinically evaluating children. However, we note that a critical component of our finding that the BPA

See RSA 516:29-a, II(a).

error rate factor is not an “appropriate” consideration in examining its inherently requires some level of flexibility, we find that the known or potential noting both the quantitative scores and the qualitative indicators, evaluate the 148 N.H. at 616. Given the nature of the BPA, and particularly that it information that is used clinically and . . . is a standard clinical approach.” applied with flexibility and in light of the proffered testimony. Baker Valley, 509 U.S. at 594); battery approach see also RSA 516:29-a, II. Rather, the factors must be applied in all circumstances. Kumho Tire, 526 U.S. at 150 (quoting Daubert, Daubert factors “do not constitute ‘a definitive checklist or test’” that must be While the BPA itself does not have a known or potential error rate, the

“potentially important,” and never refuted the notion that the BPA is a See RSA 516:29-a, II(a)(2).

could conceivably administer the same core tests in the morning session, neuropsychological assessment for children and [her] qualitative analysis lends can be tested. See RSA 516:29-a, II(a)(1). Another examiner conclusions, the evidence in the record indicates that the BPA as a flexible cognitive and behavioral deficits. Further, although another neuropsychologist may reach different

acceptable method for the evaluation of patients”). expert testified that qualitative indicators like those used in the BPA are Damage Defense, 14 Va. Envtl. L.J. 151, 156-57 (1994). The defendants’ own The Sevin Made Me Do It: Mental Non-Responsibility and the Neurotoxic See also L. Russ et al., supra §§ 23:9, 23:26, at 23-13, 23-25 to -26; Mcconnel,

of tests that [Dr. Bruno-Golden] employed followed the general guidelines for

scientific literature as a reliable method for clinically assessing children for We agree with the trial court that the BPA is generally accepted in the

approach was the better approach, the “‘flexible’ approach appears to be an A.2d at 869 (noting that, while the plaintiffs argued that the fixed battery methodology to conduct her neuropsychological assessments. See Minner, 791 plaintiff, the relevant inquiry is whether Dr. Bruno-Golden used a reliable whether the fixed battery approach was a better approach to evaluating the Incorporated, 510 F. Supp. 2d 519, 527 (N.D. Okla. 2007). Regardless of consideration.”

p. 19 court’s conclusion that the methodology was not sufficiently reliable for jury appropriate or acceptable for a published research paper, . . . confirms the trial her conclusions,” and her “admi[ssion] that her methodology . . . would not be

reliability of the methodology itself. selected subsets of the . . . Children’s Memory Scale”). administered a battery of tests to plaintiffs, including the WISC III “and suffered from certain neurocognitive deficits, where neuropsychologist

methodology for determining a person’s cognitive status. quantitative data with her subjective, qualitative observations when reaching a reliable approach to neuropsychological assessment, and is thus a reliable

for the individual tests administered by the neuropsychologist might affect the

testify to test results of plaintiffs with lead exposure, and that plaintiffs repeated, had reasonable confidence levels, and had been widely administered). Test-4, and Finger Tapping, was reliable because the individual tests could be Boston Naming Test, Wisconsin Card Sorting Test, Wide Range Achievement defendants assert that “Dr. Bruno-Golden[’s] admi[ssion] that she combined creating a new test to measure a particular deficit area. consistent with the flexible battery approach, as described above, it is generally reliable for clinical assessment, it is unreliable in the forensic context. The designing a set of tasks for the plaintiff that were not standardized, or by The defendants argue, and the trial court found, that, even if the BPA is

standardized test data). In those circumstances, the lack of validity evidence norms that were based upon his own collective data, as opposed to selected battery that had no basis or consistency, and compared the results to of plaintiffs’ neurocognitive injuries,” neuropsychologist had a reliable basis to Supp. 2d at 522, 524-25 (finding that, despite “the somewhat subjective nature

Accordingly, we find that, when the BPA is administered in a manner inconsistent with the flexible battery approach, such as by specifically

unreliable partly because he developed and administered a completely self- 1090, 1109-10, 1128 (E.D. Tenn. 1999) (excluding expert’s testimony as al., supra at 67; cf. Downs v. Perstorp Components, Inc., 126 F. Supp. 2d battery of tests administered by the neuropsychologist to measure defendant’s See W.P. Milberg et

it might be a different case if Dr. Bruno-Golden had used the BPA in a manner Bruno-Golden used to evaluate the plaintiff met these requirements. Notably, The defendants do not dispute that each of the individual tests Dr.

neuropsychologist’s opinion of insanity was not a reliable conclusion, the States v. Eff, 461 F. Supp. 2d 529, 531, 533 (E.D. Tex. 2006) (although review and publication, and have known or potential error rates. Cf. United battery, not the battery as a whole, have been tested, have been subject to peer was not to render an

p. 20 record suggests that her goal as both a clinical and forensic neuropsychologist

is at risk for cognitive or behavioral deficiencies. determining whether a particular plaintiff in a legal proceeding suffers from or

management, and educational program.”

to render her assessment, contrary to Dr. Faust’s assertion, nothing in the

which to make recommendations with respect to her overall care, clinical test, as well as background qualitative information

different kinds of scientific validation.” We agree.

Bruno-Golden to use and interpret both qualitative and quantitative measures to determine the plaintiff’s cognitive status. Although the BPA required Dr. Contrary to the defendants’ assertion, Dr. Bruno-Golden’s purpose was tests, scored those tests against published norms, and interpreted the results based upon their use in the clinical setting versus the forensic setting. neuropsychology recognizes a relevant distinction between methodologies

neuropsychologist. The subjectivity inherent in using the BPA to clinically

current level of cognitive and behavioral functioning and serve as a basis from test scores with observation of the patient during the was to determine the plaintiff’s cognitive status; specifically, to “assess her [t]he ability of the clinician to supplement the actual neuropsychology roles . . . require scientific validation, but not fundamentally results against a control group. Instead, her purpose in evaluating the plaintiff their characterization of an examinee’s cognitive status. . . . Both To be sure, situation-specific test batteries, and both strive to be objective and accurate in 42 (Tex. 1996) (Cornyn, J. concurring). upon the plaintiff’s presentation and history that consisted of standardized Cf. S.V. v. R.V., 933 S.W.2d 1,

patient’s interest, nothing in the record indicates that the field of

based upon those measures and her extensive clinical experience as a

a study similar to the one Dr. Faust has published, in which she standardized

subjectivity, by standards of logical proof, or by training.” Both “rely on

To this end, Dr. Bruno-Golden administered a flexible battery based

are not objective examiners because their apparent goal is to advance the

publish a research paper, which arguably would have required her to conduct

Besides Dr. Faust’s unsupported opinion that clinical neuropsychologists

neuropsychologist are not distinguishable by their testing approach, by the clinical setting. According to the amicus curiae, “the clinical and ‘forensic’ that any different standard exists for the forensic setting as opposed to the The plaintiff, amicus curiae, Dr. Bruno-Golden, and Dr. Shaheen dispute plaintiff’s cognitive and behavioral status. p. 21 methodology is unreliable for assisting a fact finder in understanding the

educational care as a result of that diagnosis, we do not see how that same determining certain fact issues”); reliable enough to assist a fact finder in understanding certain evidence or

fact finder in understanding the plaintiff’s neuropsychological status.

itself. the weight to be given her conclusions, not the reliability of the methodology plaintiff with particular injuries, and to prescribe her future clinical and experience of neuropsychology, treatment with potential life-or-death consequences, it should be considered BPA as a flexible battery approach has a reliable basis in the knowledge and clinically assessing patients with lead paint exposure. Moreover, because the

an expert in the relevant field.” flexible battery approach, is not a sufficiently reliable methodology to assist a the defendants’ assertion that Dr. Bruno-Golden’s methodology, the BPA as a Langill, ___ N.H. at ___; Dahood, 148 N.H. at 723. Accordingly, we reject

Bruno-Golden’s interpretation of the quantitative and qualitative results affect employs both quantitative and qualitative measures, is reliable to diagnose the see id. at 149, any alleged shortcomings in Dr. answer the question”). If the BPA as used by Dr. Bruno-Golden, which methodology “provides a sufficient basis on which to prescribe medical over what time frame?), the bare scores on the tests will not be sufficient to methodology to evaluate the plaintiff from that which she normally uses in reveals no evidence suggesting that Dr. Bruno-Golden used a different

courtroom the same level of intellectual rigor that characterizes the practice of Indeed, Daubert simply requires that an expert “employ[] in the

146, 155 (3d Cir. 1999).

900 A.2d 103, 118-19 (Del. Super. Ct. 2006) (finding that if a particular ‘stability’ of the impairments (i.e., is the patient likely to get worse, and if so, use of the same methodologies in diagnosing patients.”); State v. McMullen, methodologies invalid and unreliable in light of the medical community’s daily Inc., 66 F.3d 1378, 1384 (4th Cir. 1995) (“We will not declare . . .

scores alone. by a simple mathematical calculation based on test make more informed diagnoses than would be possible

impairments, whether for purposes of treatment or litigation, or as to the such as “[w]hen there is any question as to the cause of the identified examination goes beyond merely identifying and quantifying impairments,” see also L. Russ et al., supra § 23:9, at 23-13 (“when the purpose of the

neuropsychologist is a critical part of the forensic evaluation and should be L. Russ et al., supra § 23:26, at 23-26. Thus, “[t]he clinical judgment of the

and family, are generally believed to allow clinicians to obtained from the patient, and the patient’s records complexities or satisfactorily weigh its inadequacies.

p. 22 reliability of testing and Dr. Bruno-Golden did not abide by the rules for the

scrutiny for fear that they will not grasp its examination – rather than excluded from jurors’ process – competing expert testimony and active cross-

because following test administration rules maintains the validity and

grounds, . . . it should be tested by the adversary

and two tests in 2004 in which she followed the rules of administration.” Thus, procedure,” and that “Dr. Bruno-Golden could only identify two tests in 2002 which Dr. Bruno-Golden created her own rules of administration or

an expert’s scientific testimony rests upon good credibility of the expert’s conclusions. . . . As long as and permit the fact-finder to assess the weight and

also noted that the defendants had pointed to five other tests or subtests “in

adversary process is available to highlight the errors

Golden erred in administering the Block Design subtest of the WISC. The court

procedure as to make the results unreliable.”

basis for the reliability of the principle itself, the Where errors do not rise to the level of negating the deficient application as to skew the methodology itself.

In its order, the trial court specifically found that, in 2004, Dr. Bruno-

omitted).

testimony to be inadmissible, the flaws in application must “so infect the Langill, ___ N.H. at ___ (quotations and citations omitted). Thus, for the

warranted only if the methodology was so altered by a

outright exclusion of the evidence in question is

administration for certain tests she used during her assessments. methodology itself is otherwise sufficiently reliable,

challenged as unreliable under Daubert and the when the application of a scientific methodology is

witness has met this requirement: case.” In Langill, we adopted the following standard for determining when a witness has applied the principles and methods reliably to the facts of the RSA 516:29-a, I(c) precludes expert testimony by a witness unless “[t]he

discretion. Langill, ___ N.H. at ___. 516:29-a, I(c). We review this finding for an unsustainable exercise of

reliably apply the BPA to this case because she failed to follow the rules of We now review the trial court’s finding that Dr. Bruno-Golden did not

C. Reliability of Dr. Bruno-Golden’s Application of the BPA to This Case completes in the two-minute time limit.

p. 23 the plaintiff wanted to stop, she allowed her to continue. time because the plaintiff was nearing completion of the task; on others, unless complete the subtest. The Coding subtest is scored based upon what the child

time limits.

to finish the tasks. On one occasion, Dr. Bruno-Golden gave the plaintiff more child understands the task, and then is provided two minutes in which to corresponding geometric shapes. The child is first given a sample so that the numbers are then listed in a random order, and the child must fill in the

completing the tasks early, and receives a zero if she does not finish within the Both subtests are timed tests in which the child is allotted more points for Similarly, the Object Assembly subtest requires the child to complete a puzzle. she wanted to observe whether, if given more time, the plaintiff would be able

numbers one through nine are matched with specific geometric shapes. The

child is instructed to arrange the cubes so that they match the picture. since the plaintiff had asked to continue the tasks, and secondarily because primarily because she did not want to disrupt her rapport with the plaintiff tasks past the time limits. Dr. Bruno-Golden gave the plaintiff more time subtest. In the Coding subtest, the child is presented with a code where the Design and Coding. The Coding subtest is administered after the Block Design

picture with a design on it and cubes that have the same design on them. The

plaintiff a score of zero, but allowed her to continue trying to complete the deviated from the manual’s administration standards for the subtests Block Similarly, in 2004, when administering the WISC IV, Dr. Bruno-Golden

and Object Assembly. In the Block Design subtest, a child is presented with a

or Object Assembly tasks within the allotted time, Dr. Bruno-Golden gave the On those occasions when the plaintiff did not complete the Block Design manual also contains standards for administration of the test. individually scored in accordance with age norms contained in a manual. The analyze various verbal and non-verbal constructs. The subtests are

to the level of negating the basis for the reliability of the methodology itself. from the manual’s standards of administration for two subtests: Block Design In 2002, when administering the WISC III, Dr. Bruno-Golden deviated

both the left and right hemispheres of the brain by incorporating subtests that The WISC provides a global picture of the brain’s processing. It assesses

1. WISC III and WISC IV

We address each cited error in turn to determine whether the errors rise

Golden’s methodology was not reliable.” cited tests, the trial court found that “as administered in this case, Dr. Brunovalidation and norming under the modified conditions.

p. 24 becomes widespread, consideration should be given to

have significant effects. When a given modification

administrative procedures can be assumed a priori to instances, however, changes in format or reliability, and appropriateness of norms. In other

spent on the subtest. Bruno-Golden, however, did not score the additional time that the plaintiff

reliability, and appropriateness of norms will not be compromised.”

administration may be reasonably expected, without

Id. However, the APA Standards also explain: flipped the subtest over and insisted upon attempting the next problem. Dr.

examiner “should have a sound rationale for concluding that validity, WISC III.

administration had upon the validity, reliability and appropriateness of norms.” more importantly, what effect the changes that Dr. Bruno-Golden made in test to complete the [Block-Design] test was an approved change in test format, or

In some instances, minor changes in format or mode of Relying upon the

Standards, supra at 117. The APA Standards comment: received three consecutive scores of zero, because the plaintiff impulsively APA the plaintiff to continue with the fourth task, even though the plaintiff had instructs the examiner to discontinue the subtest. Dr. Bruno-Golden allowed test format or mode of administration, but note that in these instances the The Coding subtest on the WISC IV was the same as the Coding subtest for the The APA Standards allow an examiner to make an approved change in limit. She scored, however, only the portion completed within the time limit.

not shown that Dr. Bruno-Golden’s decision to provide her with additional time

APA Standards, the trial court found that “the plaintiff ha[d]

limits for the foregoing WISC subtests rendered her entire testimony unreliable. The defendants argue that Dr. Bruno-Golden’s failure to follow the time

subtest, when a child obtains three consecutive scores of zero, the manual

allowed the plaintiff to continue for three minutes after the two-minute time Similarly, for the Coding subtest of the WISC IV, Dr. Bruno-Golden

to complete the tasks. Further, in the WISC IV version of the Block Design time limits for the tasks had expired because the plaintiff was highly motivated plaintiff a score of zero, but again allowed the plaintiff to continue after the For the Block Design subtest of the WISC IV, Dr. Bruno-Golden gave the the tasks would have had on subsequent tests. She agreed, however, that she

p. 25 rapport Dr. Bruno-Golden had with the plaintiff by not allowing her to complete

task. Dr. Shaheen also testified that it is unknown what effect disrupting the the clinician to determine whether the child is capable of succeeding on that problem and to see whether the child is persistent. These observations allow

process. weaknesses, and to make modifications in the testing at their answers, to identify personal strengths and 25

continue past the time limits to observe the process the child uses to solve the

understand better the manner in which persons arrive

information-processing ability.” performance need to be examined separately from the actual loss of

solution. W.P. Milberg

neuropsychologist, testified that a neuropsychologist may allow a child to allotted time. At the Daubert hearing, Dr. Shaheen, a qualified pediatric

problems no matter how much time is given. Id. between patients who work too slowly from those who cannot complete accurately record behaviors being assessed, to

example, their observations may allow them to more Id. Thus, it is important to distinguish of persons under standardized conditions. For

“[r]esponse slowing often accompanies brain damage, and its effects on test

allowed additional time to complete the problem at hand when she is near a Finally, literature on the BPA indicates that in most cases, a patient is

administrator scores, however, only that work that is completed within the to finish in the interest of maintaining rapport with the child. The completion of an item when the time limit expires, the child should be allowed Moreover, the WISC III manual states that if the child is nearing the

Id. at 120-21 (emphasis added). skilled examiners to carefully observe the performance

use. professionals can be important to all aspects of test

test administration may provide the opportunity for testing conditions as needed. In some circumstances, measures is the opportunity to observe and adjust One advantage of individually administered needed, they are to be described and justified. . . . When nonstandard administration procedures are test administration procedures should be followed. When conducting psychological testing, standardized level of negating the basis of reliability for the BPA itself.

p. 26 such a slight deviation from the rules of administration does not rise to the

time for the permissible purposes of maintaining her rapport with the plaintiff, Golden to maintain her rapport with the plaintiff at this early stage. plaintiff in accordance with the time limits, and that she gave the plaintiff more procedure as to skew the reliability of the BPA itself.

behavior based upon the examiner’s expertise and published literature.

determine what effect, if any, the increased time on the subtests had on the consists of numerous subtests that examine various cognitive domains, full day of tests, it would have been particularly important for Dr. Bruno- Neuropsychological Assessment: Manual 45 (The Psychological Corp. 1998). It nearing a solution. However, given that Dr. Bruno-Golden always scored the the human figure drawing. Thus, since Dr. Bruno-Golden had planned for a the WISC III and two of the WISC IV subtests could not have so infected the designed for children. Korkman et al., NEPSY, A Developmental Bruno-Golden administered the WISC tests in the morning, and second only to The NEPSY test is a battery of neuropsychological tests specifically patient’s behavior.

2. NEPSY

deviation from the WISC time limits. the examiner to observe a child’s behavior and draw conclusions from that court erred in excluding Dr. Bruno-Golden’s testimony based upon her

Rather, it was for the jury to resolve the dispute in the testimony and

some of the WISC subtests even in those instances where the plaintiff was not BPA, Dr. Bruno-Golden’s failure to stop the plaintiff at the time limits for two of Dr. Bruno-Golden appears to have given the plaintiff more time to complete importance of an examiner’s rapport with the child. In 2002 and 2004, Dr. APA Standards, supra at 121. Thus, in the context of the completion of a test, so long as she scored the plaintiff within the time limits. importance of an examiner’s observations for the accurate recording of the e.g., W.P. Milberg et al., supra at 67-69. The APA Standards also note the

Further, the BPA itself includes a qualitative component that requires

Indeed, both the WISC manual and the BPA literature emphasize the permitted to exceed the time limits of subtests when the plaintiff was nearing ___.

The foregoing evidence demonstrates that Dr. Bruno-Golden was

upon the plaintiff’s performance on later subtests, but opined that the also did not know what effect extending the time limit on these subtests had those in the Core. The following sections present

p. 27 in a certain domain, it is

and consists of selected subtests—generally beyond

which includes all subtests.

previous diagnosis indicates the presence of a problem

more thorough analysis of specific cognitive disorders, status. An Expanded or Selective Assessment allows a provides an overview of a child’s neuropsychological same constructs.

appropriate. In those instances, she selected other tests that examined the depth. . . .

in order to investigate the problem in greater evaluation can be completed using the Full NEPSY, and Expanded subtests in a domain—be administered Expanded Assessment —the administration of all Core

Supplemental Score, the referral question, or a When a Core Domain Score, a subtest or

. . . . composed of selected subtests from each domain, of subtests that must be administered to every child. administered in 2002, except for those subtests that were no longer age- There is no prescribed set

assessment. A comprehensive neuropsychological recommendations for subtest selection and levels of

NEPSY manual states, in pertinent part:

assessment takes place. A Core Assessment, which is child, time constraints, and the setting in which the afternoon session, Dr. Bruno-Golden repeated the NEPSY subtests she had basis of age, the referral question, the needs of the at a variety of levels. Subtests are selected on the

memory as “recommended” by the manual. The NEPSY can be used as an assessment tool

to “administer[] the entire NEPSY battery as recommended in the manual.” The The trial court based its decision in part upon Dr. Bruno-Golden’s failure

Golden followed the manual’s instructions for administration. In the 2004

memory. She did not administer all the core and expanded subtests for administered certain NEPSY subtests designed to measure verbal working In the 2002 afternoon session, Dr. Bruno-Golden selected and

standardized and is independently scored. including memory. Id. at 45-48. Each subtest has been individually recommendations. p. 28 Golden’s testimony in light of her failure to follow the NEPSY manual’s

methodology. Instead, it was for the jury to assess the weight of Dr. Bruno-

an administration error that could have altered the reliability of the

requirements.” Accordingly, her failure to administer the Full NEPSY was not to the defendants’ assertion, she did not contravene the “manual not completely follow all the recommendations of the NEPSY manual, contrary

issue. in question when the core assessment suggests the presence of a particular allows a neuropsychologist to select pertinent subtests examining the domain Bruno-Golden repeat herself and the directions. While Dr. Bruno-Golden did

based upon the results of the morning tests. The NEPSY manual specifically during the morning session, the plaintiff had frequently requested that Dr. measure verbal working memory for structured linguistic material because, example, Dr. Bruno-Golden selected the Sentence Repetition subtest to

functions. D. Sheslow & W. Adams, Wide Range Assessment of Memory and The WRAML is a battery designed to examine memory and learning

3. Wide Range Assessment of Memory and Learning (WRAML) However, Dr. Bruno-Golden explained that she selected the particular subtests

the trial court’s reliance upon this failure was misplaced. subtests that examined specific domains that required further analysis. For Langill, ___ N.H. at ___; Dahood, 148 N.H. at 723. Thus,

administer the Full NEPSY or the entire battery for each domain she tested. subtests as well as

Based upon this core assessment, Dr. Bruno-Golden selected pertinent NEPSY individually selected for the particular child being tested. assessment”; that is, an overview of the plaintiff’s neuropsychological status. Dr. Bruno-Golden used the WISC III to obtain the plaintiff’s “core

Dr. Bruno-Golden administered several NEPSY subtests, but did not continuation of testing using the pertinent Expanded

recommended order in which subtests should be administered if they are Id. at 45-47 (emphases added). The NEPSY manual also delineates a

question. that assess subcomponents of the capacity in assessment involves the administration of subtests domains is recommended. . . . In these cases, the

involve or affect components from several domains, presence of a disorder of a complex function that may evaluation. When the Core Assessment suggests the additional subtests across domains as part of an A Selective Assessment involves choosing the BPA itself.

p. 29 error could not have risen to the level of negating the basis for the reliability of

manual. The relevant portion of the WRAML manual provides:

one of the subtests instead of the entire battery or the screening portion, this WRAML:

Bruno-Golden may not have adhered to certain time limits in the WRAML

in the WRAML manual.” result that she could not say whether or not she had adhered to the time limits

conclusions. Thus, even if Dr. Bruno-Golden erroneously administered only Do observe these additional guidelines when using the

Moreover, the record does not support the trial court’s finding that Dr. first 4 WRAML subtests. failure to follow the WRAML manual’s recommendations. Id. the jury to determine the weight of Dr. Bruno-Golden’s testimony given her found that Dr. Bruno-Golden “did not record the time limits she used, with the Langill, ___ N.H. at ___. Again, as with the NEPSY, it was for investigations are complete, the examiner is

the WRAML was not a critical test upon which Dr. Bruno-Golden based her administer the entire WRAML or the screening version of the WRAML. Further, entire WRAML in the order presented, it does not require the examiner to While the WRAML manual encourages an examiner to administer the

Screening Form of the battery, administer only the

error Dr. Bruno-Golden’s administration of only portions of the WRAML. It also the recall of narrative information. The trial court cited as an administration is administered alone. However, until such of the WRAML. The Story Memory subtest consists of two stories and examines In 2002, Dr. Bruno-Golden administered only the Story Memory subtest

Id. at 14 (emphasis added).

presented in this manual. If the examiner is using the encouraged to administer the test in the order

affected if taken out of sequence or if a specific subtest subtests, the level of performance is not significantly Preliminary investigations suggest that for many of the

14. It further states: examiner to administer the standard battery in the order presented. Id. at 13administered for screening purposes. Id. The WRAML manual instructs the battery, a shorter form of the WRAML consisting of four subtests may also be Learning: Administration Manual 13 (1990). In addition to the complete to adhere to “the time limits in the WRAML manual.”

p. 30 unsustainably exercised its discretion in finding that Dr. Bruno-Golden failed

that the Story Memory subtest was subject to time limits, the trial court interview[s].” failure as an administration error. Accordingly, since no evidence indicated subtest had precise time limits. Notably, Dr. Faust did not cite this alleged The ROCF manual instructs:

interval.

visuospatial stimuli should

Id. Examples of tasks involving visuospatial stimuli include “the

“time estimation, controlled verbal fluency, temporal orientation, or . . . clinical Meyers & Meyers, supra at 8. As examples of verbal tasks, the manual cites subtests. The record reveals no evidence indicating that the Story Memory the ROCF test examines visual construction skills and non-verbal memory.

actively performing a verbal task during the delay is important that the respondent is engaged and between the Copy trial and the Delayed Recall trial. It

trial and the Delayed Recall trial. Tasks involving interval between completion of the Immediate Recall Administer verbal tasks to the respondent during the be exact . . . .

not timed on any subtest except the Picture Memory and Design Memory administered the ROCF test to the plaintiff after the WISC. As stated earlier, In 2002 and 2004, pursuant to her usual practice, Dr. Bruno-Golden

4. ROCF

specified amount of time. These time intervals should subtests require the examiner to expose materials for a timed, but the Picture Memory and Design Memory

particularly since the manual specifically states that the child’s performance is clear that the WRAML manual required her to adhere to certain time limits, subtests (Picture Memory and Design WRAML, not the Picture Memory or Design Memory subtests. Thus, it is not Dr. Bruno-Golden only administered the Story Memory subtest of the

Sheslow & Adams, supra at 14.

Memory). . . . On no subtest is the child’s performance

2. Adhere to the time limits associated with the 2 timed paraphrase, adapt or add. 1. Use the directions exactly as written. Do not than “X” flashed on the screen.

p. 31 motor function.

and required the plaintiff to click a button on a computer when a letter other also administered the CCPT during the interval. This test measures attention She did not administer or score the Cookie Theft Test itself. Dr. Bruno-Golden tests as part of her hypothesis testing to rule out potential issues with pure

construction of spatial relationships.

administering a “visuospatial” test during the thirty-minute interval.

defendants’ contention and resolved the conflicting testimony to actually to her administration of the ROCF. The trial court, however, never adopted the expression were commensurate with her grade level and chronological age. Dr. Bruno-Golden administered both the Finger Tapping and Grip Strength

spatials task.” She testified that the task must not disrupt the child’s visual

Faust’s testimony, the defendants assert that Dr. Bruno-Golden erred by administering the ROCF, we decline to consider this alleged error on appeal.

[ROCF] test,” and summarized some of Dr. Bruno-Golden’s testimony relating to observe whether the plaintiff’s written language arts and written language Halstead-Reitan battery that measure pure p. 31 motor function. In 2002 and 2004, that she used the Cookie Theft Test picture as an academic screening measure The Finger Tapping and Grip Strength tests are two subtests of the instructing her to write a story about the picture. Dr. Bruno-Golden testified task where she had to do visual construction skills, or a psycho or a visual

5. Finger Tapping and Grip Strength Tests

and opined that visuospatial “means basically visual stimuli.” Based upon Dr. because the trial court did not find that Dr. Bruno-Golden erred in disagreed with Dr. Bruno-Golden’s interpretation of the term “visuospatial,” that Dr. Bruno-Golden improperly administered the ROCF. Accordingly, administered the CCPT during the interval between the recall trials. He

“Dr. Bruno-Golden administered inappropriate tests following first half of the In its order, the trial court summarized the defendants’ argument that

picture from an aphasia screening exam, called the Cookie Theft Test, and explained that a visuospatial task would have involved giving the plaintiff “a

when she used the Cookie Theft Test to obtain a written language sample and Dr. Faust testified that Dr. Bruno-Golden violated the ROCF manual

language sample from the plaintiff by handing her a complex standardized Dr. Bruno-Golden testified that neither test was “visuospatial.” She

During the delay interval, Dr. Bruno-Golden first obtained a written

the WMS-R.” Id. Benton Judgment of Line Orientation” and “the Visual Reproduction subtest of tests improperly, such errors did not skew the methodology itself. p. 32 out potential issues. Accordingly, even if Dr. Bruno-Golden administered these

plaintiff three times and then averaged the results. within normal limits on both tests, and Dr. Bruno-Golden used the tests to rule 2002 or 2004, or in both years, Dr. Bruno-Golden administered the test to the five points of each other. points of each other, but the second two consecutive finger tap trials are within 32 decline to rely upon these alleged errors on appeal.

critical to Dr. Bruno-Golden’s conclusions. Indeed, the plaintiff performed perform the test two times unless the first is not properly performed. In either

finger thirty times, the first two consecutive finger tap trials are not within five improperly administered either the Finger Tapping or the Grip Strength test, we the ROCF, because the trial court never found that Dr. Bruno-Golden but never explicitly found that the tests were administered improperly. As with N.H. at ___.

Moreover, neither the Finger Tapping nor the Grip Strength tests were of the brain. For the Grip Strength test, the manual instructs the examiner to

taps his or her finger twenty-eight times, and on the third trial, taps his or her tap trial, the child taps his or her finger twenty-two times, on the second trial, each ten-second period differs by five or less. For example, if on the first finger Dr. Bruno-Golden failed to follow the instructions with regard” to these tests, In its order, the trial court noted that the defendants “contend[ed] that

provides information concerning the behavior of the left and right hemispheres The Grip Strength test measures a child’s strength, which in turn

that were within five points of each other. tap trials” are within “five points” of each other when the number of taps in properly obtained five consecutive finger tap trials on the plaintiff’s left hand consistently went slower each time. Dr. Bruno-Golden also may not have plaintiff to perform only three finger tap trials on one of her hands because she Either in 2002 or 2004, or in both years, Dr. Bruno-Golden asked the elicited at the

counting the number of taps the child does in ten seconds. Consecutive “finger “five points” of each other. Each “finger tap trial” consists of the examiner examiner to have the child do five consecutive “finger tap trials” that are within

Daubert hearing seems to indicate that the manual requires the

neither party has provided the Finger Tapping test manual, the testimony standardized rates of other individuals in the same age group. Although certain fingers on each hand in ten seconds. The results are compared with The Finger Tapping test measures the number of times a child taps child?

p. 33 better left to the determination of the fact finder.

appropriate description to the performance of the

administration errors. Such issues affecting the weight of the evidence are in score calculation, which the trial court properly did not consider as simply to the methodology, but also to her ultimate conclusions, such as errors

and that you applied the proper norms and

technically correct, is misleading. Her answer considers issues relating not

or didn’t complete the test? That were scored correctly

[and] the Hooper [Visual Organization Test].” your word to tell us that the child completed the test

to the manual, and that is, we don’t have to rely upon 33

testimony, Dr. Bruno-Golden’s answer to this question, while perhaps Bruno-Golden’s administration errors rendered her testimony unreliable. erred in relying upon this misleading answer to support its finding that Dr.

learning test,” and, in 2004, the “Peabody picture book vocabulary test, . . . vocabulary test, which we haven’t discussed. . . . [and] the California verbal deviation? That were recorded correctly and according Bruno-Golden answered: “Well, [in 2002,] there’s the Peabody picture as a whole, the evidence does not support a finding that these errors so altered Furthermore, even considering Dr. Bruno-Golden’s administration errors

highlighted in a summary fashion weaknesses in Dr. Bruno-Golden’s and to tests that were not critical to her conclusions. Thus, the trial court Golden was required to administer all the subtests of a particular test battery), reality not have been errors at all (e.g., the question presumes that Dr. Bruno- Bruno-Golden’s answer also includes reference to alleged errors that may in

discounting certain tests for not meeting the question’s requirements, Dr. sub-tests as required by the test publisher, that were was administered entirely, that is, administered all the

defense counsel. The question was: Although defense counsel’s excellent cross-examination certainly

Ultimately, after some clarification of the question and defense counsel in 2002, 2004, that is current, that is up-to-date, that

upon Dr. Bruno-Golden’s answer to a long, multi-part question posed by

Can you identify for me any test that you administered

2004 in which she followed the rules of administration.” This finding is based that “Dr. Bruno-Golden could only identify two tests in 2002 and two tests in The defendants assert in their brief, and the trial court ultimately found,

6. Collective Impact of Errors consistent with this opinion.

excluding Dr. Bithoney’s testimony and remand for further proceedings arguments concerning Dr. Bithoney’s testimony. We vacate the court’s ruling testimony is reliable and admissible, we do not reach the plaintiff’s remaining

it found to be unreliable. Given our conclusion that Dr. Bruno-Golden’s

of this case,

was based almost entirely upon Dr. Bruno-Golden’s proposed testimony, which BRODERICK, C.J., and DALIANIS and GALWAY, JJ., concurred.

finding that Dr. Bruno-Golden unreliably applied the methodology to the facts

conclusions, The trial court excluded Dr. Bithoney’s testimony because his testimony

dismissing the plaintiff’s writ.

see RSA 516:29-a, I(c), and its orders excluding her testimony and

not render the entire methodology unreliable, we reverse the trial court’s have already found that Dr. Bruno-Golden’s errors on the WISC subtests did evidence did not support a finding that they were in fact errors. Because we

i.e., tests that she used to eliminate certain hypotheses; or (3) the

errors; (2) they occurred on tests that were not critical to Dr. Bruno-Golden’s defendants, either: (1) the trial court did not explicitly find that they were for certain of the WISC subtests. As for the other errors cited by the that Dr. Bruno-Golden’s only arguably true error was exceeding the time limits the BPA as to skew the methodology itself. Id. Notably, the evidence reveals