Envision a plaintiff who was injured on the job at a construction site due to his employer’s negligence. The plaintiff has chronic back pain, but it is not verifiable on an X-ray, nor is a physical injury readily discernible by any other technology. Presently, fact finders are given the broad discretion to decide whether they find this plaintiff credible, and accordingly, whether they believe he is truly in pain and deserves damages for pain and suffering. However, neuroimaging—specifically functional magnetic resonance imaging (fMRI)—could allow those fact finders to visualize whether this plaintiff was hurting by depicting the unique signatures that are activated in the brain when the plaintiff experiences pain. Accordingly, the use of fMRI imaging would potentially provide a more objective basis through which fact finders could decide whether this plaintiff was legitimately suffering from chronic pain. This Note discusses the pros, cons, and feasibility of a pain and suffering award system that incorporates neuroimaging evidence, where a floors and caps system would be largely unnecessary and plaintiffs would be able to collect the awards they deserve while still operating within a system based on narrowed jury discretion. This Note argues that, while holding promise for the near future, the current pain neuroimaging technology is not sufficiently reliable nor accepted in the scientific community to warrant widespread use in litigation to prove pain and suffering injuries, and at present, courts are likely to exclude pain scans because of their prejudicial nature. First, Part I provides a brief background of current structural and functional neuroimaging technology and whether the technology can be used to prove pain and suffering. Next, Part II discusses the evidentiary hurdles for getting neuroimages admitted as evidence as seen in a wide variety of cases where courts have admitted or denied neuroimaging evidence. Part III analyzes the potential uses of neuroimaging evidence in proving pain and suffering and the implicit problems with its admission into the courtroom. Finally, this Note ultimately concludes that because the technology is not presently generally accepted in the scientific community as a verifiable method to prove pain, the judicial system is not currently prepared for the broad-scale admission of neuroimaging evidence to prove pain and suffering.
Brady Somers, Neuroimaging Evidence: A Solution to the Problem of Proving Pain and Suffering?, 39 SEATTLE U. L. REV. 1391 (2016).