Plaintiffs' attorneys have become increasingly emboldened in their willingness to rely upon Diffusion Tensor Imaging ("DTI") test results to support traumatic brain injury ("TBI") claims where traditional brain MRI tests have failed to demonstrate evidence of actual damage or trauma. In simplest terms, DTI tests measure the movement (diffusion) of water molecules through brain tissue in order to identify disruptions in brain function. DTI tests are well-received by plaintiffs' attorneys whose clients have suspect TBI claims but normal brain MRI results. Initially, courts have been reluctant, for the most part, to admit DTI test results because the medical community has expressed serious reservations as to reliability.
However, as Marsh v. Celebrity Cruises, Inc. demonstrates, this may be changing. In the Marsh case the United States District Court for the Southern District of Florida ruled that DTI test data satisfied the Daubert standard for admissibility. (Case No. 1:17-CV-21097-UU).
In the Marsh case, the plaintiff sustained a mild TBI when she slipped and fell on water on the floor of a Celebrity Cruise ship. The plaintiff retained Gerald York, M.D., a board-certified neuro-radiologist and radiologist, as an expert who opined as to plaintiff's TBI. Dr. York reviewed the plaintiff's DTI and determined that the plaintiff did indeed suffer a mild TBI from the fall.
The defense counsel moved to bar Dr. York's testimony and findings, arguing that DTI was a "junk science" and that Dr. York's opinions were based upon "unsubstantiated speculation."
The Court rejected Celebrity Cruises' arguments, finding that DTI has been deemed reliable and admitted by courts across the country for almost a decade. It also found that DTI is a generally accepted method in the medical field for diagnosing TBI and has been subjected to the proper peer review and publication.
Comment: It is clear that the use of DTI to diagnose TBI is slowly gaining acceptance and the law is trending towards the admissibility of such evidence. While New Jersey and Pennsylvania state courts have yet to touch upon this issue, courts in New York have also admitted DTI evidence. Thus, it appears that a trend may be emerging. Since the value of a personal injury suit involving a TBI claim can escalate quickly, it is important for defense attorneys to be well-versed in recent developments regarding DTI technology and to be prepared for a protracted battle as to its admissibility at trial. The Marsh ruling suggests that DTI can no longer be summarily dismissed as junk science, at least in the view of some judges.
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