Neurolaw and Traumatic Brain Injury: Principles for Trial Lawyers
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NEUROLAW AND TRAUMATIC BRAIN INJURY:
PRINCIPLES FOR TRIAL LAWYERS
J. Sherrod Taylor*
Traumatic brain injury (TBI) spawned the first branch of the neurolaw
revolution in 1991.' Inspired by the classic work Neurophilosophy,2 neurolaw
constituted a synthesis of law, medicine, and rehabilitation that dealt with the
medicolegal implications of neurological injury-most notably, acquired brain
damage.' After almost twenty-five years, neurolaw continues to impact
neurological injury litigation.4 Neurolaw, as originally conceived, now stands at
the frontier of law and neuroscience, as a second branch of neurolegal inquiry
emerges. Largely due to the advent of improved neuroimaging techniques (e.g.,
functional magnetic resonance imaging or jMRI),I this new prong of neurolaw
explores whether, when, and how brain science should be, and will be,
incorporated into legal proceedings. I In 2007, The John D. and Catherine T
MacArthur Foundation established its Law and Neuroscience Project and now
generously funds much important research in this new branch of neurolaw.
Additionally, the coursebook-Law and Neuroscience-offers the first
comprehensive review of this branch.7
This article examines both branches of neurolaw and emphasizes those
aspects of each that impact TBI litigation. Specifically, Part I of this article
recalls the early years of the Congressionally-declared Decade of the Brain
(1990-1999) and looks at the development of neurolaw as a recognized area of
* J. Sherrod Taylor, a graduate of the University of Georgia School of Law, coined the terms
neurolaw and neurolawyer in 1991. He is an independent scholar residing in Kansas City,
Missouri, where he focuses on neurolaw as a social determinant of health. The author would like to
thank Eugenia Smithwick (Gena) Taylor, his wife of almost a half-century, for her steadfast
encouragement, valuable insights, and technical assistance.
I See J. Sherrod Taylor, J. Anderson Harp, & Tyron Elliott, Neuropsychologists and Neurolawyers,
5 NEUROPSYCHOLOGY 293, 294 (1991) [hereinafter Taylor, Harp, & Elliott, Neuropsychologists and
Neurolawyers]; J. Sherrod Taylor, Meeting the Legal Challenge, 1 THE NEUROLAw LETTER I
(1991).
2 PATRICIA SMITH CHURCHLAND, NEUROPHILOSOPHY: TOWARD A UNIFIED SCIENCE OF THE MIND-
BRAIN (1986).
3 J. Sherrod Taylor, Neurorehabilitation and Neurolaw, 7 NEUROREHABILITATION 3, 4 (1996).
4 See generally Paul M. Kaufmann, Neuropsychologist Experts and Neurolaw: Cases,
Controversies, and Admissibility Challenges, 31 BEHAVIOR SCIENCES & THE LAw 739 (2013) (a
thorough review of the issues confronted by neuropsychologists in today's legal environment);
NIKOLAS ROSE & JOELLE M. ABI-RACHED, NEURO: THE NEW BRAIN SCIENCES AND THE
MANAGEMENT OF THE MIND 177 (2013) (. . . neurolaw was initially focused on the question of
traumatic brain injury and the role of neuropsychologists as expert witnesses in the increasing
number of cases involving claims for damages).
5 Steven K. Erickson, Blaming the Brain, 11 MINN. J. L. SCI. & TECH. 27, 34-35 (2010); see
generally Owen D. Jones et al., Brain Imaging for Judges: An Introduction to Law and
Neuroscience, 50 COURT REV. 44 (2014) (explaining inter alia how various neuroimaging
procedures work, e.g., fMRI).
6 Francis X. Shen & Dena M. Gromet, Red States, Blue States, and Brain States: Issue Framing,
Partisanship, and the Future of Neurolaw in the United States, 658 ANN. AM. ACAD. POL. & SOC.
ScI. 86, 87 (2015).
1 Owen D. Jones et al., Law and Neuroscience, 33 J. OFNEUROSCIENCE 45 (2013).](ViewImageLocal?handle=hein.journals/umkc84&div=19&collection=&method=preview&ext=.png&size=3)
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Neurolaw and Traumatic Brain Injury: Principles for Trial Lawyers
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