Is QEEG Evidence Admissible To Show A Brain Injury? A Washington State Court Says No

• Published date: 05 December 2021
• Subject Matter: Insurance, Litigation, Mediation & Arbitration, Insurance Laws and Products, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Cozen O'Connor
• Author: Mr Connor Rowinski and Robert D. Lee

In Washington, nearly every injury lawsuit now includes a traumatic brain injury claim. As brain MRIs and CT scans are almost always normal, plaintiffs' counsel are seeking new ways to "show" the jury "proof" of the brain dysfunction. One of the new trends is the use of quantitative electroencephalography (qEEG) testing, which produces ominous, multi-colored brain charts and graphs that purportedly show this brain injury. A King County Superior Court judge recently prohibited the use of qEEG evidence to establish the diagnosis of a traumatic brain injury, holding that qEEG evidence cannot satisfy the Frye standard.

Quantitative electroencephalography is a test used to measure electrical activity in the brain, where data is collected through small metal discs connected to the patient's scalp. The discs provide data that can be read through visual analysis. However, there is little consensus in the scientific community on the viability of qEEG as a tool to evaluate traumatic brain injuries. Particular issues with qEEG include that: (1) there is little agreement about the proper methods to analyze the data and conduct the statistical analysis; (2) it fails to account for potential covariates, including related diagnoses and medication; and (3) there is a significant potential for bias in analyzing the data.

In Habenicht v. Medina, et al., No. 20-2-17024-1-KNT (King County Sup. Ct., 2020), Judge Port granted the defendants' motion to exclude the plaintiff's qEEG evidence. The plaintiff alleged that she had experienced a history of head injuries and sought to produce records of her qEEG treatments and diagnoses.

In response, the defendants moved to exclude this evidence, first arguing that qEEG is not generally accepted by the relevant scientific community for the purpose of diagnosing traumatic brain injuries, and was therefore inadmissible under Frye v. United States, 293 F. 1013 (1923). Applying Frye, courts throughout the country have excluded qEEG evidence in the context of alleged brain trauma. For example, the Florida Supreme Court has noted that the relevant scientific community for purposes of Frye was neurologists, and that testimony showed how "qEEG is not a reliable method for determining brain damage and is not widely accepted by those who diagnose neurologic disease or brain damage." Hernandez v. State, 180 So. 3d 978, 1009 (Fla. 2015). And in an appeal from a jury verdict following a motor vehicle accident, the Colorado Court of Appeals reversed...