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On September 13, 2010, a Massachusetts trial court in the matter of Sawski v. Gigs, LLC held a Daubert/Lanigan II hearing with regard to the admissibility or non admissibility of diffusion tensor imaging (DTI).

 

The parties did not request an evidentiary hearing but submitted over 3000 pages of affidavits, medical articles and memorandum.

 

In Massachusetts, the court adopted the Daubert standard in the matter of Commonwealth v. Lanigan.  Under this standard, a party seeking to introduce scientific evidence must lay a foundation either by showing that the underlying scientific theory is generally accepted within the relevant scientific community or by showing the theory is reliable and valid through other means. 
The Court noted that as a result of the parties' decision not to produce expert testimony at the preliminary hearing, the Court was faced with a difficult decision.  Nevertheless, based on the materials submitted, the Court denied defendant's motion to preclude evidence relating to the admissibility of diffusion tensor imaging.

 

Defendant's motion to exclude the testimony of plaintiff's neuropsychologist on the basis that she was not a medical physician was also denied.  The Court noted that there is no 'hard and fast rule that only a physician may give medical testimony.  In this day and time, science, including medical science is advancing so fast that different areas of expertise overlap.  It will depend on the witness' expertise.  From the Court's reading of her education, training and experience, and from the substance of her opinion, it appears that the expert witness is qualified to render opinions in the areas discussed in the plaintiff's opposition to the motion.'

 

Finally, the Court granted plaintiff's motion to exclude any reference to the 1997 AAN position paper on QEEG and to exclude any testimony upon which relies on the position paper.  The Court found that the AAN position paper was written some thirteen years ago and was replete with errors as pointed out in many of the articles submitted by plaintiff's counsel. 

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