MENTAL DISABILITIES AND DUTY IN NEGLIGENCE 
LAW: 

WILL NEUROSCIENCE REFORM TORT DOCTRINE? 

Jean Macchiaroli Eggen∗ 
©   2015 

“There is no doubt that in many cases a man may be insane, 
and yet perfectly capable of taking the precautions, and of 
being influenced by the motives, which the circumstances 
demand.  But if insanity of a pronounced type exists, 
manifestly incapacitating the sufferer from complying with 
the rule which he has broken, good sense would require it to 
be admitted as an excuse.” 

Oliver Wendell Holmes, 18811 

I. INTRODUCTION .......................................................... 593 
II. THE BASICS OF MENTAL DISABILITIES IN TORT
LAW .................................................................................... 597 

A. Intentional Torts ........................................................ 598 
B. The Law of Negligence ............................................... 602 
C. Judicial Exceptions to the Bifurcated Rule ............... 613 

III. MENTAL DISABILITY IN TORT DOCTRINE:  IS
THERE A ROLE FOR NEUROSCIENCE? ....................... 617 

A. A Very Brief Look at the Advantages and Weaknesses 
of Functional Neuroimaging ........................................... 618 
B. Stigma and Stereotypes ............................................. 627 
C. Is Tort Law Ready for Neuroscience?:  Revisiting the 
Policies of the Bifurcated Rule ....................................... 629 

∗*  Distinguished Professor of Law, Widener University - Delaware 
Law School.  The author wishes to thank Dean Andrew Klein and 
Professors Nicolas Terry and Jennifer Drobac of the Robert H. 
McKinney School of Law of Indiana University, Professor Tracy Gunter 
of Indiana University School of Medicine, and the many others involved 
in the planning of the symposium on “Neuroscience and Law:  Injury, 
Capacity and Illness” for bringing her into the fold of the neurolaw 
community and for providing a stimulating environment for the 
interdisciplinary exchange of ideas.  The author also wishes to thank 
Holly Frey for her research assistance. 

1  OLIVER WENDELL HOLMES, THE COMMON LAW 109 (1881). 

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592 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
IV. THE EVIDENTIARY CHALLENGES OF APPLYING 
NEUROSCIENCE TO TORT LAW .................................... 633 

A. The Intersection of Law and Science ......................... 634 
B. Neuroethics and the Search for Truth in the Courtroom
 ......................................................................................... 635 
C. Is Neuroscience Ready for Tort Law?:  Moving from the 
Laboratory to the Courtroom ......................................... 638 

V. A MODEST PROPOSAL WITH CAVEATS .................. 643 
A. A Framework for Commencing the Discourse .......... 644 

1. The duty rule for adults with mental disabilities 
should be consistent with the rule for physical 
disabilities. ................................................................... 644 
2. The unified subjective rule should expressly recognize 
that many mental disabilities are organic in nature. 644 
3. To be considered in determining liability, the mental 
disability must be “significant and objectively 
verifiable.” .................................................................... 645 
4. All expert evidence of mental disabilities, including 
all neuroscience evidence, will be subject to the 
applicable rules of evidence. ....................................... 645 
5. There should be no new defense for persons with 
mental disabilities. ...................................................... 646 
6. Existing privileges and defenses that involve mental 
conditions should remain in effect. ............................. 646 

B. Some Caveats ............................................................. 647 
1. Courts should be cognizant of the limitations of the 
technology. ................................................................... 647 
2. Courts should take care to apply the same 
evidentiary scrutiny to neuroscientific evidence as to 
other expert evidence, no more and no less. ............... 648 

VI. CONCLUSION ............................................................. 649 
 

 
 
 
 
 
 
 
 
 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              593 
 

 
 

 
I.  INTRODUCTION 

 
Tort doctrine is replete with mental states, some of 

which represent arbitrary policy decisions on complex 
matters, including mental disabilities.2  The traditional 
premise for tort liability is fault, or “blameworthiness” in 
the words of Holmes,3 and the broadest categories of torts—
intentional torts and negligence—define fault in the context 
of mental states.  Thus, for a defendant to be at fault, the 
defendant must make a decision to act in a certain manner 
that creates a specific risk of harm to the plaintiff’s person 
or property.  Generally, tort doctrine imposes the same set 
of rules on all actors, but allows subjective consideration of 
certain characteristics of the actor, such as physical 
disabilities or the age of a child, to be applied when 
determining liability.  One conspicuous exception is mental 
disabilities in negligence law, on which torts doctrine 
imposes an objective standard, holding persons with mental 
disabilities to the same duty standard as persons without 
such disabilities.  Some defendants, however, may not have 
the mental ability to act in a way that constitutes legally 
cognizable “fault.” 

Developments in neuroscience4 over the past two 
decades have inspired much speculation about the ability of 
                                                      

2  The Americans with Disabilities Act (ADA) defines “disability” as 
“a physical or mental impairment that substantially limits one or more 
major life activities of such individual.”  42 U.S.C. § 12102(1)(A) (2014).  
Among the activities the ADA identifies—in a nonexclusive list—as 
“major life activities” are “learning, reading, concentrating, thinking, 
[and] communicating.”  Id. § 12102(2)(A).  This Article will use the term 
“mental disability” in broadly the same way as the ADA and, unless 
otherwise indicated, without reference to the specific cause of the 
mental disability.  This Article does not intend, however, to use the term 
in a way that is consistent in all ways with the ADA and the cases that 
construe it. 

3  See Brown v. Kendall, 60 Mass. (6 Cush.) 292 (1850); HOLMES, 
supra note 1, at 108. 

4  This article uses the term “neuroscience” for the broad category of 
brain science, including the technologies of structural and functional 
neuroimaging.  Occasionally, “neuroimaging” or “structural” or 
“functional” neuroimaging will be used to designate more specific 



594 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
neuroscience to identify and understand the brain pathways 
associated with human behavior and the utility of that 
information for making normative legal decisions about 
fault.  As a result, neuroscience has become an increasingly 
seductive adjunct to the law, offering the promise of 
explaining actors’ decisions, actions, emotions, moral 
positions, and motivations.  Tort law, based as it is on 
human behavior, is an especially fertile area for interest in 
these developments.  Commentators have warned, however, 
that the science is nascent, its utility problematic, and its 
application to the law conjectural.5  Although advancements 
in functional neuroimaging have accessed the brain in ways 
previously unimagined and offered data on activity in the 
brain in real time, it is unclear at present whether 
neuroscience will be capable of fulfilling the inflated 
promises.  What is apparent, however, is that 
notwithstanding these concerns neuroscience may have 
much to offer tort law, both in individual cases and in the 
reform of tort doctrine. 

The criminal justice system has begun to take notice of 
neuroscience in all aspects of the adjudicatory process, from 
pre-trial through post-conviction,6 but the civil justice 
system has been slower to embrace the possibilities of 
neuroscience.  The U.S. Supreme Court in several recent 

                                                                                                                           
technologies.  See generally infra notes 104-09 and accompanying text 
(identifying the technologies). 

5  See, e.g., Owen D. Jones et al., Law and Neuroscience, 33 J. 
NEUROSCI. 17624, 17624-25 (2013) (stating that some of the possible 
uses of neuroscience in the law are “more theoretical than current,” but 
recognizing that neuroscience can make important contributions to the 
law).  One writer has stated that using neuroimaging to help resolve 
legal issues may allow courts “to directly inspect people’s brains and to 
bypass the filter of their own and other people’s agendas.”  Nicole A. 
Vincent, Neuroimaging and Responsibility Assessments, 4 
NEUROETHICS 35, 38 (2011). 

6  See Scott T. Grafton, Has Neuroscience Already Appeared in the 
Courtroom?, in A JUDGE’S GUIDE TO NEUROSCIENCE:  A CONCISE 
INTRODUCTION 54, 55 (Law & Neuroscience Project & SAGE Ctr. for the 
Study of Mind 2011).  Grafton has referred to the introduction of 
mitigating evidence in capital cases as the “front line” for testing 
neuroscience evidence in the courtroom because of the courts’ 
willingness to admit more evidence for that purpose.  See id. 

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2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              595 
 

 
 

decisions has taken note of advancements in neuroscience to 
shape criminal law doctrine on the punishment of juveniles.  
The Court referred to the developmental immaturity of the 
brains of juveniles in these decisions.7  In contrast, tort law 
follows a splintered and inconsistent approach to mental 
states, including mental disabilities.  Although mental 
disability is a factor in determining the liability of adults 
and children for intentional torts, it is only considered for 
children under the law of negligence.  Furthermore, 
negligence law imposes a bifurcated rule for adult 
tortfeasors, according to which physical disabilities of adults 
are considered in determining liability, but mental 
disabilities are ignored.  This rule continues to be the 
majority rule despite regular criticism over many decades, 
not because it is a good rule but because it is a familiar and 
convenient rule.  As a result, there is a longstanding 
tradition of mixed messages in tort law, created by an 
illogical set of policy-laden rules.  For decades 
commentators have noted that the bifurcated rule does not 
comport with modern medical understanding and 
psychiatric views of mental illness and other mental 
disabilities.8  Neuroscience adds a new dimension to these 
voices, as new developments in neuroimaging may provide 
greater insight into the relationship between organic brain 
function and human behavior.  Developments in 
neuroscience invite a fresh examination of the bifurcated 
                                                      

7  See, e.g., Alabama v. Miller, 132 U.S. 2455 (2012).  The Court 
noted that “‘brain science continues to show fundamental differences 
between juvenile and adult minds,’” and held that mandatory life 
imprisonment without parole for persons under the age of eighteen was 
unconstitutional.  Id. at 2464-65; see also Roper v. Simmons, 543 U.S. 
551, 578 (2005) (referencing neuroscientific studies and holding that the 
death penalty for persons under the age of eighteen at the time of the 
capital crime is unconstitutional). 

8  See, e.g., Robert M. Ague, Jr., The Liability of Insane Persons in 
Tort Actions, 60 DICK. L. REV. 211 (1956); William B. Hornblower, 
Insanity and the Law of Negligence, 5 COLUM. L. REV. 278 (1905); Henry 
J.F. Korrell, The Liability of Mentally Disabled Tort Defendants, 19 L. 
& PSYCHOLOGY REV. 1 (1995); David E. Seidelson, Reasonable 
Expectations and Subjective Standards in Negligence Law:  The Minor, 
the Mentally Impaired, and the Mentally Incompetent, 50 GEO. WASH. 
L. REV. 17 (1981). 

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596 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
rule to determine whether an alternative rule better serves 
parties and society in general. 

Tort law is entrenched in the tradition of the common 
law and has been slow to reflect contemporary 
advancements and social patterns.  Thus, resistance to 
change is to be expected, and change can only come about 
jurisdiction by jurisdiction and issue by issue.  This Article 
takes the position that it is time to begin a reasoned 
discourse about the possibility of integrating new 
developments in neuroscience into tort law in ways that can 
ameliorate, augment, and ultimately transform tort 
doctrine.  The bifurcated rule presents a logical point to 
initiate this discourse.  As neuroscience provides increasing 
information about the basis of mental illness and other 
causes of mental disabilities, the traditional bifurcated rule 
has become an anachronism.  Ongoing advancements in 
neuroscience may have the ability to clarify the factual 
bases underlying the traditional rule and determine 
whether the rule continues to be justified.  In this way, 
neuroscience may be a useful tool to influence the 
development of substantive tort doctrine.9 

This Article begins in Part II with an overview of the 
role of mental states in intentional torts and negligence.  
This section first discusses the basic asymmetry between 
intentional torts and negligence, with intentional torts 
employing a subjective mental state rule for all adults and 
children, but with the law of negligence imposing an 
objective rule for adults with mental disabilities while 
maintaining a subjective rule for children.  This section 
proceeds to focus on the bifurcated rule in negligence, which 
establishes a subjective rule for persons with physical 
disabilities but an objective rule for those with mental 
disabilities.  Attention is given to some judicial exceptions 
that suggest a path toward transforming the traditional 
                                                      

9  For a broad overview of the tort doctrines, the science, and the 
potential uses of and likely challenges to the introduction of 
neuroscience in tort cases, see Jean Macchiaroli Eggen & Eric J. Laury, 
Toward a Neuroscience Model of Tort Law:  How Functional 
Neuroimaging Will Transform Tort Doctrine, 13 COLUM. SCI. & TECH. L. 
REV. 235 (2012). 

 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              597 
 

 
 

doctrine.  Part III then examines the role that neuroscience 
may be able to play in understanding mental disabilities 
and, ultimately, duty in tort law.  Part IV takes a closer look 
at some of the global challenges to using neuroscience in 
tort actions and as a vehicle for transforming tort doctrine.  
This part focuses separately on the law-science distinction, 
the ethical considerations of using neuroscience in the law, 
and the evidentiary challenges of moving neuroscience into 
the courtroom.  Finally, in Part V this Article offers a 
modest proposal for understanding how neuroscience may 
contribute to eliminating the bifurcated rule in tort law.  
This proposal is intended as a means to initiate a broader 
discourse about neuroscience and other aspects of tort 
doctrine.  This Article concludes that on balance the 
bifurcated rule is no longer tenable in the era of 
neuroscience, and that with appropriate caution 
neuroscience may play a key role in transforming tort 
doctrine to allow mental disabilities of all people to be a 
factor in determining tort liability. 

 
II. THE BASICS OF MENTAL DISABILITIES IN TORT 

LAW 
 

The long-standing rule in tort law has been that a 
defendant may not rely on his or her insanity or diminished 
mental state to escape liability in tort.10   In the early case 
of Williams v. Hays, the New York Court of Appeals held 
that “[t]he general rule is that an insane person is just as 
responsible for his torts as a sane person, and the rule 
applies to all torts,” with specific limited exceptions.11  This 
rule, the court said, was grounded in several policies.  First, 
as between two innocent parties, the loss must be borne by 

                                                      
10  The Second Restatement of Torts notes that “[t]he rule that a 

mentally deficient adult is liable for his torts is an old one, dating back 
at least to 1616 . . . .”  RESTATEMENT (SECOND) OF TORTS § 283B, cmt. b 
(1965). 

11 Williams v. Hays, 38 N.E. 449, 450 (N.Y. 1894).  The court 
indicated that an exception would apply in torts “in which malice, and 
therefore intention, actual or imputed, is a necessary ingredient, like 
libel, slander, and malicious prosecution.” Id. 



598 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
the person who caused the injury.12  Second, public policy 
favors a rule that will encourage the persons with an 
interest in the estate of a mentally ill person to take 
measures to prevent the person from harming others.13  
And third, such a rule discourages persons from feigning 
mental illness so as to avoid liability for their tortious 
conduct.14  Although more than a century has transpired 
since the Williams decision, the basic doctrine has not 
changed.15  Indeed, both the Second and Third 
Restatements of Torts reaffirmed its prevalence along with 
the underlying policy justifications.16  While mental 
disability is not a defense to or excuse from tort liability in a 
general sense, courts have sometimes allowed mental 
disabilities to be considered as one factor among many in 
determining liability for both intentional torts and 
negligence.  The result, however, has been an arbitrary and 
fragmented set of rules. 

 
A. Intentional Torts 

 
For intentional torts, a plaintiff must show that the 

defendant satisfies the requirement of intent, which the 
Third Restatement of Torts defines as a mental state in 
which “the person acts with the purpose of producing that 
consequence; or the person acts knowing that the 
consequence is substantially certain to result.”17  Both parts 
of this definition could be in play when the mental ability of 
the defendant is an issue.  The basic rule, which is 
subjective in nature, incorporates the need to show that the 
                                                      

12  Id. 
13  Id. 
14  Id. 
15  See, e.g., Delahanty v. Hinckley, 799 F. Supp. 184, 186 (D.D.C. 

1992) (“An insane person is liable for compensatory damages for his 
torts where express malice or evil intent is not a necessary element of 
the tort. . . . The primary purpose of such a rule is to compensate the 
victims for their loss.”). 

16  See RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 
EMOTIONAL HARM § 11 (2010); RESTATEMENT (SECOND) OF TORTS § 283B 
(1965). 

17 RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 
EMOTIONAL HARM § 1 (2010). 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              599 
 

 
 

defendant had the mental capability to know that a 
particular result was substantially certain to occur.  A 
defendant who is mentally ill or otherwise mentally 
disabled at the time of the tortious act may be held liable, 
provided that he or she was capable of forming the requisite 
intent for the particular tort.18   

This rule became ingrained in tort law early.  In the 
1887 case of McIntyre v. Sholty, the Illinois Supreme Court 
held that the mentally ill defendant could be liable in tort 
under the traditional rule,19 while acknowledging that 
criticisms of the rule had some legitimacy.  The court relied 
on the weight of the majority rule and stated:  “However 
justly this doctrine may have been originally subject to 
criticism, on the grounds of reason and principle, it is now 
too firmly supported by the weight of authority to be 
disturbed.”20  The court emphasized that because the 
remedy in tort is “mere compensation,” and not criminal 
punishment, holding the mentally ill defendant liable would 
be fair.21  The court also relied on the standard public-policy 
justifications that would be echoed in Williams and in 
numerous cases for more than a century.22 

                                                      
18  This traditional rule dates back (at least) to the case of Weaver v. 

Ward, (1616) 80 Eng.Rep. 284 (K.B.).  See Francis H. Bohlen, Liability 
in Tort of Infants and Insane Persons, 23 MICH. L. REV. 9, 31-32 (1924-
25). 

19  McIntyre v. Sholty, 13 N.E. 239, 240 (Ill. 1887) (“It is well settled 
that, though a lunatic is not punishable criminally, he is liable in a civil 
action for any tort he may commit.”). 

20  Id. 
21  See id.  The court stated:  “There certainly can be nothing wrong 

or unjust in a verdict which merely gives compensation for the actual 
loss resulting from an injury inflicted by a lunatic.”  Id. 

22  See id.; see also Williams v. Hays, 38 N.E. 449, 450 (N.Y. 1894).  
These policies included:  (1) encouraging family members (i.e. “those 
interested in his estate”) to be vigilant in supervising the mentally ill 
person; (2) shifting compensation to the person responsible for the 
injury rather than burdening the innocent injured person; (3) 
encouraging appropriate guardianship processes for the mentally ill 
who may pose a danger to others; and (4) discouraging tortfeasors from 
fabricating symptoms to avoid liability.  McIntyre, 13 N.E. at 240; see 
RESTATEMENT (SECOND) OF TORTS § 283B cmt. b (1965). 

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600 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 

Because the concept of intent in tort law differs from 
mens rea in criminal law, the traditional rule may lead to a 
different result in a tort action than in a criminal 
prosecution based upon the same incident.  This distinction 
is well-illustrated by Polmatier v. Russ,23 in which the 
defendant had been charged in a criminal proceeding with 
the death of his father-in-law, but was adjudicated not 
guilty by reason of insanity.  In the subsequent civil 
wrongful death action for the torts of assault and battery, 
the defendant’s attorney argued that the defendant had 
been incapable of forming the requisite intent to commit the 
intentional torts alleged.24  The evidence in both the 
criminal and civil actions showed that the defendant had 
been suffering from severe paranoid schizophrenia at the 
time of the incident.25  The Connecticut Supreme Court 
applied the traditional subjective rule for intentional torts 
and held that the record demonstrated sufficient evidence of 
intent for the defendant to be held liable under the basic 
rule, stating that “it is not necessary for a defendant’s 
reasons and motives for forming his intention to be rational 
in order for him to have the intent to invade the interests of 
another.”26  The court so ruled notwithstanding the 
evidence that the defendant had offered various and 
conflicting irrational reasons for his attack on the 
decedent.27  As cases such as Polmatier demonstrate—and 
the persistence of the traditional rule in the Restatements 
of Torts confirms—the majority rule has held fast. 

The same rule of intent applies to children.  The 
frequently studied case of Garratt v. Dailey28 illustrates this 
rule as it applied to a five-year-old child who had moved a 
lawn chair just at the moment when the plaintiff attempted 
                                                      

23  537 A.2d 468 (Conn. 1988). 
24  Id. at 469. 
25  Id. 
26  Id. at 473.   
27  See id. at 472.  The court emphasized that the evidence showed 

that the defendant had made statements to law enforcement and 
medical authorities “that he intended to punish Polmatier and to kill 
him,” thereby establishing the ability to formulate the intent to commit 
the torts of assault and battery.  Id. at 473. 

28  Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955). 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              601 
 

 
 

to sit on it.  As a result, the plaintiff suffered serious 
injuries and brought a battery action against the child 
defendant.  The court defined the main issue in the case as 
whether the defendant knew with substantial certainty that 
the plaintiff had been in the act of sitting at the time he 
moved the chair, thereby having the requisite knowledge 
that the plaintiff would make contact with the ground.29  
The court emphasized that “[t]he only circumstance where 
[the defendant’s] age is of any consequence is in 
determining what he knew, and there his experience, 
capacity, and understanding are of course material.”30  
Thus, a subjective standard is routinely applied to children 
in intentional tort cases. 

The consent privilege may invoke similar issues when 
the plaintiff argues that he or she was incapable of 
consenting to an act because of a mental disability.  A valid 
defense of consent has the effect of negating the intent of 
the defendant to commit the intentional tort.31  As a general 
rule, for the plaintiff’s consent to bar liability for intentional 
torts, the plaintiff must only have consented to the act.32  
No requirement exists that the plaintiff consent to the 
resulting harm.33  The mental disability or other incapacity 
of the plaintiff may render consent ineffective, however.  
The rules of consent for both adults and children who lack 
capacity, including intoxicated persons, are similar to the 
subjective rule for intent.  Thus, if the plaintiff was capable 
of understanding the act to which he or she consented and 
its likely consequences, consent will be legally effective.34  
                                                      

29  Id. at 1093. 
30  Id. at 1094.  Because the trial court’s findings were not clear, the 

court remanded for clarification of the findings.  Id. 
31  See DAN B. DOBBS ET AL., DOBBS’ LAW OF TORTS § 106 (2d ed. 

2014) (discussing the various ways that consent may be manifested by 
the plaintiff). 

32  See Hellriegel v. Tholl, 417 P.2d 362, 367 (Wash. 1966); DOBBS ET 
AL., supra note 31, § 105. 

33  DOBBS ET AL., supra note 31, § 105. 
34 See RESTATEMENT (SECOND) OF TORTS § 892A cmt. b (1979); 

DOBBS ET AL., supra note 31, § 109 (stating that “mental limitations are 
not equivalent to incapacity”).  The Second Restatement notes:  “If the 
person consenting is a child or one of deficient mental capacity, the 



602 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
In addition, the defendant must have known, or had reason 
to know, of the plaintiff’s incapacity.35  This rule raises an 
additional mental state question—the defendant’s actual or 
constructive knowledge of the incapacity of the plaintiff.  
Whether the defendant should have known could become a 
complex question, requiring the defendant to be capable of 
understanding subtle nuances of behavior. 

 
B. The Law of Negligence 

 
In contrast to intentional torts, negligence doctrine 

contains more complex and fragmented rules regarding 
persons with mental disabilities.  Although defendants36 
have a duty to exercise reasonable care to avoid injury to 
the plaintiff,37 the parameters of the duty in a particular 
case are set by the factual circumstances.  Moreover, certain 
subjective characteristics of the defendant may be factors in 
determining duty and breach.  Both mental and physical 
disabilities are considered when the actor is a child, along 
with the child’s age and experience.  With regard to adults a 
bifurcated rule applies, however, according to which 
                                                                                                                           
consent may still be effective if he is capable of appreciating the nature, 
extent and probable consequences of the conduct consented to . . . .”  
RESTATEMENT (SECOND) OF TORTS § 892A cmt. b (1979).  Where a law 
has been enacted to protect children from the harmful effects of 
consent—such as statutory rape laws—consent will not be effective as a 
matter of law.  See id. 

35  See Reavis v. Slominski, 551 N.W.2d 528, 538 (Neb. 1996).  In 
situations where the defendant had no reason to know of the existence 
of the incapacity, the reasonable appearance of consent, coupled with 
the defendant’s reasonable belief that the plaintiff consented, suffices to 
render the consent legally effective.  RESTATEMENT (SECOND) OF TORTS § 
892A(2) (1979). 

36 This Article primarily uses the designations “defendant” or 
“tortfeasor” when referring to the duty rules in negligence.  These terms 
are intended to encompass the plaintiff when the plaintiff’s contributory 
or comparative negligence is at issue in the case.  Generally, the duty of 
the plaintiff to avoid causing injury to herself parallels the duty of the 
defendant to avoid causing injury to a third person (the plaintiff).  See 
RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND EMOTIONAL 
HARM § 3 cmt. b (2010). 

37  Id. § 7 (noting that in exceptional cases a court may impose a no-
duty rule). 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              603 
 

 
 

physical disabilities, but not mental disabilities, may be 
considered in determining duty and breach.  The same 
bifurcated rule applies to plaintiffs who are alleged to have 
been contributorily negligent in causing their own 
injuries.38 

The bifurcated rule has had a long and dubious pedigree 
in negligence law.39  In Johnson v. Lambotte,40 the adult 
defendant, a hospital inpatient, had been treated without 
improvement for chronic paranoid schizophrenia.  At the 
time of the accident, and on the date in question in the case, 
she was receiving frequent high doses of thorazine.41  Upon 
leaving the hospital without being properly discharged, she 
walked eight blocks, entered an empty car with the motor 
running, and began driving, whereupon she collided with 
the plaintiff’s car.  She continued on, and another accident 
occurred in which she was injured.42  In the plaintiff’s 
                                                      

38  Id. § 3 cmt. b (“The definition of negligence set forth in this 
Section applies whether the issue is the negligence of the defendant or 
the contributory negligence of the plaintiff.”).  The Third Restatement of 
Torts:  Apportionment of Liability posits the adoption of comparative 
negligence principles for intentional torts, with apportionment of 
liability between parties found to be at fault, including the plaintiff.  See 
RESTATEMENT (THIRD) OF TORTS:  APPORTIONMENT OF LIAB. § 1 cmt. c 
(2000).  Comment c states:  “Although some courts have held that a 
plaintiff's negligence may serve as a comparative defense to an 
intentional tort, most have not. This Restatement takes no position on 
that issue.”  Id.  Although the Restatement explicitly acknowledges the 
complexity of the issues involved in allowing the plaintiff’s negligence to 
reduce her recovery for an intentional tort, it does not attempt to fully 
analyze or solve those issues.  Id.  For the moment, there does not 
appear to be a trend toward allowing the comparative negligence of the 
plaintiff to reduce recovery in an intentional tort case.  The Third 
Restatement Reporters state that most jurisdictions allowing 
comparative negligence principles for apportionment of fault in 
intentional tort cases do so only among defendants, not as between the 
plaintiff and the defendant.  Id.  reporters’ note to cmt. c & cases cited 
therein.  Allowing evidence of the plaintiff’s negligence to impact the 
plaintiff’s recovery in an intentional tort action would likely invoke the 
rules of duty discussed in this Article and would raise the potential for a 
conflicting set of rules when the plaintiff is mentally disabled. 

39  See Williams v. Hays, 38 N.E. 449, 450 (N.Y. 1894). 
40  363 P.2d 165, 165 (Colo. 1961). 
41  Id. 
42  Id. at 166. 



604 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
personal injury action, the defendant argued that she 
should not be held liable because she had no ability to 
distinguish between right and wrong at the time of the 
accident and because she had not acted negligently.  At 
trial, the plaintiff recovered a judgment.43  Applying the 
general rule, the Colorado Supreme Court held that the 
plaintiff could be held liable for her torts regardless of her 
mental condition and that the standard of care to which she 
must be held under the law of negligence was the same as a 
person without her mental condition.44  Cases such as 
Johnson impose an objective standard—the reasonable 
person without mental disabilities—on adults with mental 
disabilities. 

The Second Restatement articulated the reasons for the 
tenacity of this prevailing rule and cemented its underlying 
rationales.45  The Second Restatement relied on four 
familiar policies in sustaining the viability of the historical 
rule:  (1) the difficulty of distinguishing “mental deficiency” 
from lesser “variations of temperament, intellect, and 
emotional balance;” (2) the concern that—and “ease with 
which”—parties could fabricate symptoms of mental illness 
for the purpose of escaping liability; (3) requiring persons 
with mental conditions to compensate the persons they 
injure if they “are to live in the world;” and (4) encouraging 
caretakers to prevent mentally challenged family members 
from doing harm to others.46 
                                                      

43  Id. 
44  Id. 
45  Section 283B of the Second Restatement stated:  “Unless the 

actor is a child, his insanity or other mental deficiency does not relieve 
the actor from liability for conduct which does not conform to the 
standard of a reasonable man under like circumstances.”  RESTATEMENT 
(SECOND) OF TORTS § 283B (1965). 

46  The Second Restatement’s language reflects outmoded attitudes 
toward mentally ill or otherwise mentally challenged persons.  The rule 
contains such terms as “mental defectives.”  See id. cmt. b(3).  And the 
tone of the language is sometimes insensitive and reflects negative 
stereotypes.  For example, in stating the fourth policy noted in the text, 
the Restatement states:  “The belief that their liability will mean that 
those who have charge of them or their estates will be stimulated to look 
after them, keep them in order, and see that they do not do harm.”  Id. 
cmt. b(4). 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              605 
 

 
 

This objective rule for adults with mental disabilities 
contrasts sharply with the subjective rule for persons with 
physical disabilities.  The Third Restatement states:  “The 
conduct of an actor with a physical disability is negligent 
only if the conduct does not conform to that of a reasonably 
careful person with the same disability.”47  This subjective 
standard allows the particular defendant’s physical 
disability to be a factor in determining some important 
aspects of negligence—the nature of the duty owed, the 
amount of care required under the circumstances, and 
whether the duty was breached under the circumstances of 
the case.  Comment a indicates that for a physical disability 
to be considered it must be “significant and objectively 
verifiable.”48  While old age is not in itself a physical 
disability and would not fit the basic rule, age-related 
physical disabilities would be treated as any other physical 
disability under the rule.49 

The Third Restatement continues to espouse the 
majority bifurcated rule, however, which imposes an 
objective standard on adults with mental disabilities.50  
                                                      

47 RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 
EMOTIONAL HARM § 11(a) (2010). 

48  Id. § 11, cmt. a. 
49  Id. cmt. c. 
50 Id. § 11(c) (“An actor’s mental or emotional disability is not 

considered in determining whether conduct is negligent, unless the 
actor is a child.”).  The rule for mentally disabled persons is also applied 
to involuntarily intoxicated persons.  See id. § 12 cmt c.  A person who is 
involuntarily intoxicated is one who has not been drugged against his or 
her will.  DOBBS ET AL., supra note 31, § 133 n.1.  This rule also applies 
to persons who have not previously engaged in the particular activity 
involved in the tort, and to persons with poor memories.  In contrast, 
special skills or training are factors that should be considered in 
determining how the reasonable person with such skills or training 
would have acted under the circumstances.  Persons with special skills 
or training are held to exercise the care that a reasonable person with 
those skills would exercise—in other words, specialized care which often 
would mean more care than a person without those skills would 
exercise.  The Third Restatement states:  “If an actor has skills or 
knowledge that exceed those possessed by most others, these skills or 
knowledge are circumstances to be taken into account in determining 
whether the actor has behaved as a reasonably careful person.”  
RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND EMOTIONAL 



606 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
Although comment e recognizes the flaws in this traditional 
rule, the Restatement continues to embrace it because of 
perceived difficulties applying a rule that allows mental 
disabilities to be a factor.  The comment states that “limited 
or moderate mental disorders” should not be taken into 
consideration because such conditions do not generally 
account for a person’s actions and because of the difficulties 
of evaluating the impact of these conditions on the person’s 
behavior under the relevant circumstances.51  The American 
Law Institute (ALI) does not dispute that the more severe 
mental conditions may have behavioral ramifications, but 
expresses the opinion that administrative difficulties—such 
as the “awkwardness experienced by the criminal-justice 
system in attempting to litigate the insanity defense”—
support retaining the bifurcated rule.52  The ALI also cites 
difficulties in determining whether there was a causal 
connection between the condition and the conduct of the 
person.  Finally, the comment emphasizes the deterrent 
value of holding liable persons within the entire range of 
mental and emotional disabilities.  Liability, at least 
theoretically, would raise questions about the person’s 
ability “to engage in the normal range of society’s activities.”  
Recognizing that modern social policy favors 
deinstitutionalization of persons with mental disabilities, 
making available compensation for their injured victims 
becomes a preferred goal.53 
                                                                                                                           
HARM § 12 (2010).  Clearly the Restatement contemplates the exercise of 
more care—or at least more specialized care—by such persons, not less 
care.  In contrast, the Third Restatement notes the refusal to allow 
below-average skills or knowledge to be considered when determining 
the duty owed.  For one thing, “the acquisition of knowledge and skills is 
a process that is generally within a person’s control.”  Id. cmt. b.   

51 RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 
EMOTIONAL HARM § 11 cmt. e (2010). 

52  Id. 
53  The comment states: 

[T]here is nothing especially harsh in at least 
holding such a person responsible for those harms that 
the  person’s clearly substandard conduct causes.  
The theory of deinstitutionalization implies that even 
persons with severe mental disorders can adequately 
comply with society’s norms; while reality may fall short 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              607 
 

 
 

More importantly, the Third Restatement acknowledges 
the known organic basis for many mental conditions, yet 
chooses to disregard that fact in endorsing the bifurcated 
rule.  Comment e to Section 11 states:  “To be sure, modern 
society is increasingly inclined to treat physical disabilities 
and mental disabilities similarly, and this inclination is 
supported by the recognition that many mental disabilities 
have organic causes.”54  Nonetheless, the Restatement and 
the courts have reached the perverse conclusion that the 
legal duties of persons with mental disabilities under 
negligence law should be different from those of persons 
with physical disabilities. 

Burch v. American Family Mutual Insurance Co.55 is a 
classic illustration of the bifurcated rule’s contradictions.  In 
Burch, the plaintiff was the father of the mentally 
challenged minor defendant.  The plaintiff was injured 
when he left the defendant sitting in the front seat of his 
pickup truck with the engine off and the key in the ignition.  
When the plaintiff was behind the truck, the truck lurched 
backward, allegedly by a negligent act of the defendant, 
injuring the plaintiff.56  In the court’s words, the fifteen-
year-old defendant was born with “cerebral palsy and 
mental retardation with autistic tendencies and 
function[ed] at the cognitive level of a preschooler.”57  The 
Wisconsin Supreme Court held that the traditional rule 
barring consideration of the defendant’s mental condition 
applied in the case.58  The court observed that the 

                                                                                                                           
of theory, deinstitutionalization becomes more socially 
acceptable if innocent victims are at least assured of 
opportunity for compensation when they suffer injury. 

Id. 
54  Id. 
55  543 N.W.2d 277 (Wis. 1996). 
56  Id. at 278-79. 
57  Id. at 278. 
58 Id. at 280.  The court distinguished a simultaneously issued 

decision which held that under certain circumstances an 
institutionalized mentally disabled person will not be held liable in tort 
to a paid caretaker.  See Gould v. Am. Family Mut. Ins. Co., 543 N.W.3d 
277, 283 (Wis. 1996) (holding that “an individual institutionalized, as 
here, with a mental disability, and who does not have the capacity to 



608 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
defendant’s mental conditions were “physical/organic in 
nature and have been present since her birth.”59  
Nevertheless, the court held that the defendant’s mental 
condition could not be considered in determining whether 
she breached a duty of care.60  The court noted, however, 
that the defendant’s mental condition, and her father’s 
knowledge of the condition, could be taken into 
consideration in determining whether the plaintiff was 
contributorily negligent in leaving his daughter in the car 
with the key in the ignition.61  Thus, the court’s application 
of the traditional rule was doubly perverse in the Burch 
case.  First, the court acknowledged the “physical/organic” 
basis of the defendant’s mental condition, yet steadfastly 
refused to allow the mental disability to be treated like a 
physical disability when determining duty and breach of 
duty.  Second, the court turned around and allowed the 
mental condition of the defendant to be considered for 
purposes of determining whether the plaintiff was 
contributorily negligent. 

Notwithstanding such inconsistencies, courts often state 
that they adhere to the bifurcated rule because allowing 
mental disabilities to be considered would be “one-sided” 
and would invariably result in a lesser standard of care as a 
matter of law—and therefore fewer instances of liability—
for persons with mental conditions than those with physical 
conditions.62  Physical disabilities may require the actor to 
exercise more care or less care depending upon the 
disability and the circumstances.  In Roberts v. State, a 
blind defendant collided with the plaintiff in the lobby of a 
post office.63  The defendant, who operated a concession 

                                                                                                                           
control or appreciate his or her conduct cannot be liable for injuries 
caused to caretakers who are employed for financial compensation”); 
infra notes 94-102 and accompanying text. 

59  Burch, 543 N.W.3d at 281. 
60  This rule was especially harsh considering that the defendant 

was a minor. 
61  Burch, 543 N.W.3d at 280 n.4. 
62  See RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 

EMOTIONAL HARM § 11 cmt. e (2010). 
63  Roberts v. State, 396 So.2d 566, 566 (La. Ct. App.), aff’d, 404 

So.2d 1221 (La. 1981). 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              609 
 

 
 

stand in the lobby, was walking down the hall toward the 
restroom without the use of a cane and without holding his 
hand in front of him.  The plaintiff claimed that the 
defendant was negligent in failing to use a cane, even 
though he had the cane available at his concession stand.64  
The court upheld the trial court’s dismissal of the action.65  
Noting that “it is not uncommon for blind people to rely on 
other techniques when moving around in a familiar 
setting,”66 the court did not require a blind defendant to use 
a cane as a matter of law.  The record showed that the 
defendant had undertaken mobility training and had 
testified that on this particular occasion he relied on his 
“facial sense” without a cane, which he frequently used in 
moving around familiar surroundings.  The reasonableness 
of this technique was supported by the testimony of 
witnesses from the Division of Blind Services.67  The court 
concluded that he “was acting as a reasonably prudent blind 
person would under these particular circumstances.”68  
Roberts suggests, however, that in other circumstances 
reasonableness would require a blind defendant to use a 
cane.  The reasonableness of the physically disabled person 
is generally a question of fact for the jury, and the outcome 
will depend on the detailed interaction of the nature and 
extent of the individual party’s physical condition compared 
to the circumstances of the case.69  Thus, the presence of a 
                                                      

64  Id. at 567. 
65  Id. at 569. 
66  Id. at 568. 
67  Id. at 567-68. 
68  Id. at 567. 
69  See Shepherd v. Gardner Wholesale, Inc., 256 So.2d 877 (Ala. 

1972).  The plaintiff in Shepherd tripped and fell on a public sidewalk 
abutting the defendant’s business.  Id. at 878.  The question was the 
contributory negligence of the plaintiff, a person with a vision 
impairment due to cataracts.  The court stated: 

While the law requires a pedestrian to make reasonable 
use of his sense of sight, a person with impaired vision is 
not required to see what a person with normal vision 
could see. . . . A person laboring under a physical 
disability such as defective vision is not required to 
exercise a higher degree of care to avoid injury than is 
required of a person under no disability. 



610 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
physical disability may in some circumstances require more 
care than would be required in the absence of the disability, 
depending upon what the particular physical limitation 
allows. 

The Third Restatement reflects cases such as Roberts:  
“Physical disability can both advantage and disadvantage 
actors at trial . . . . It can advantage the actor by 
establishing that the actor neither knew nor should have 
known of dangers that would have been known by others.”70  
On the other hand, “persons with particular disabilities can 
appreciate that some conduct on their part will foreseeably 
entail a greater risk than the same conduct engaged in by 
able-bodied persons.”71  When such risks are foreseeable, a 
person “can be found negligent for not adopting special 
precautions that can reasonably reduce the special dangers 
that the actor’s conduct involves.”72  Persons with physical 

                                                                                                                           
Id. at 882.   

The Third Restatement expands upon this point: 
With physical disabilities . . . tort law tailors the 
negligence standard to acknowledge the individual 
situation of the actor.  To this extent, tort law employs 
what can be called a subjective rather than a fully 
objective standard of care.  Of course, the weight to be 
attached to the subjective fact of disability depends on 
the contents of the particular claim of negligence. 

RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND EMOTIONAL 
HARM § 11 cmt.b (2010).  This is substantively different from the 
treatment of mentally challenged persons. 

70 RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 
EMOTIONAL HARM § 11 cmt.b (2010). 

71  Id. 
72  Id.  The example presented in the Third Restatement is that of a 

blind person who is incapable of seeing certain hazards.  He or she 
would not be required to avoid the unseen hazard in the same manner 
as a fully sighted person.  In contrast, a blind person may be required to 
exercise a greater amount of care under some circumstances, such as 
traversing unfamiliar territory. See id; see also Hosmer v. Distler, 541 
N.Y.S.2d 650 (N.Y. App. Div. 1989).  The Hosmer case involved an 
injured pedestrian hit by a motorist who at the time of the accident was 
wearing bifocals, wore a left leg prosthesis, and was taking medication 
for various ailments, including diabetes.  The court stated that because 
he “chose to drive with full knowledge of his disabilities he is to be held 
to the standard of a reasonable licensed driver [and that he] had the 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              611 
 

 
 

disabilities are expected only to adopt appropriate safety 
precautions given the increased risks associated with their 
physical conditions.73  Persons with mental disabilities, by 
contrast, must adopt any and all safety precautions 
expected of a person without their mental conditions. 

A special rule applies to children.  When the mentally 
disabled person is a child, the applicable rule is a fully 
subjective one whereby the mental disability will be a factor 
in the duty analysis.74  The Second and Third Restatements 
of Torts are consistent on the duty of children:  “A child’s 
conduct is negligent if it does not conform to that of a 
reasonably careful person of the same age, intelligence, and 
experience.”75  Very young children are generally deemed to 
be incapable of negligence.76  Logical reasons exist for the 
                                                                                                                           
additional responsibility of exercising caution to compensate for any 
increased hazard occasioned by his known disabilities.”  Id. at 652. 

73 RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 
EMOTIONAL HARM § 11 cmt.b (2010) (“While it is sometimes said that an 
actor with a disability must adopt precautions that “compensate” for 
that disability, obviously complete compensation is often impracticable; 
what is required is the adoption of reasonable precautions such that 
their safety advantages outbalance their disadvantages and 
inconveniences.”). 

74  See id. § 11(c).  Section 11(c) provides:  “An actor’s mental or 
emotional disability is not considered in determining whether conduct is 
negligent, unless the actor is a child.” 

75  Id. § 10(a); see Sherry v. Asing, 531 P.2d 648, 661 (Haw. 1975) 
(stating that “[t]he rule in this and a clear majority of jurisdictions is 
that a minor is required to exercise care appropriate to his age, 
experience and mental capacity”); RESTATEMENT (SECOND) OF TORTS § 
283A (1965). 

76 RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 
EMOTIONAL HARM § 10(b) (2010) (“A child less than five years of age is 
incapable of negligence.”); see, e.g., Taylor v. Armiger, 358 A.2d 883, 889 
(Md. 1976); Mathis v. Massachusetts Elec. Co., 565 N.E.2d 1180, 1184 
(Mass. 1991).  Children approaching the age of majority may present a 
special challenge.  In Dorais v. Paquin, a case involving the question of 
the contributory negligence of a 17-year-old child, the New Hampshire 
Supreme Court applied the subjective standard for children on the 
ground that “[c]hildren generally do not have the same capacity to 
perceive, appreciate and avoid dangerous situations which is possessed 
by the ordinary, prudent adult.”  Dorais v. Paquin, 304 A.2d 369, 371 
(N.H. 1973).  Because of the near-majority age of the child in the case, 
however, the court held that the plaintiff child’s duty to avoid injury 



612 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
subjective rule, including that “children are less able than 
adults to understand risks, to appreciate alternative courses 
of conduct with respect to risks, and to make appropriate 
choices from among those alternatives.”77  This rule, along 
with its underlying policies, applies equally to children of all 
mental capabilities.78  Once the circumstances are proved, 
the child must demonstrate conformity with the judgment of 
a reasonable person with the particular mental condition.79  
A universally recognized and common exception involves a 
child engaged in an adult activity, in which case the child 
will be held to the standard of an adult engaged in that 
activity.80 

An example of the application of the subjective rule to a 
child is Lafayette Parish School Board v. Cormier ex rel. 
Cormier.81  The school board brought suit against the 
mother of an eleven-year-old special education student, 
claiming that the student had caused a teaching assistant 
to suffer emotional distress by pointing a toy gun at her and 
yelling “bang.”82  The court agreed with the trial court that 
the student had not breached the applicable duty of care, 
which was that of “‘a reasonably prudent 11-year-old boy 
                                                                                                                           
was the same as an adult.  The court noted that “[t]he closer a child 
comes to majority, and the more common and obvious the risk . . . the 
more likely it is that the youth will be held to the adult standard of 
care.”  Id. at 372 (internal citation omitted).  But cf. Alabama v. Miller, 
132 U.S. 2455, 2464-65 (2012) (stating that fundamental differences 
exists between juvenile and adult minds so as to preclude mandatory 
life imprisonment without parole for persons under the age of eighteen); 
Roper v. Simmons, 543 U.S. 551, 578 (2005) (referencing neuroscientific 
studies in holding that the death penalty for persons under the age of 
eighteen at the time of the capital crime is unconstitutional). 

77 RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 
EMOTIONAL HARM § 10 cmt. b (2010). 

78  Id. § 10(a) & cmt c (stating that “any evidence of mental or 
emotional deficit can be considered”). 

79  RESTATEMENT (SECOND) OF TORTS § 283A cmt. b (1965). 
80 See Dellwo v. Pearson, 107 N.W.2d 859, 863 (Minn. 1961); 

RESTATEMENT (SECOND) OF TORTS § 283A cmt.c (1965). 
81  Lafayette Parish School Bd. v. Cormier ex rel. Cormier, 901 So. 

2d 1197 (La. Ct. App. 2005). 
82  Id. at 1198-99.  The record indicated that the student’s challenges 

were “emotional disturbance” and “impulsive and aggressive behavior.”  
Id. at 1199. 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              613 
 

 
 

who has the same exceptionalities’” as the student whose 
conduct was at issue in the case.83  In Young v. Grant, the 
subjective standard cut the other way, however.  In Young, 
the plaintiffs’ minor daughter was injured riding her bicycle 
when she was struck by a car driven by the defendant.84  
The defendant alleged the contributory negligence of the 
minor plaintiff, who was ten years old and mentally 
challenged.  The court stated that although questions of fact 
may have existed, “all of the evidence in the record (and 
particularly the testimony of her mother . . .) supports the 
conclusion that she was a competent cyclist and that she 
appreciated the dangers of city traffic.”85  Accordingly, it 
was not error to conclude, as had the trial court, that she 
had not exercised the judgment of a reasonable child of her 
age, intelligence, and experience and was therefore 
contributorily negligent in the accident.86 

The Restatement explains that the special rule for 
children is justified by public concern for their safety and 
welfare.  Moreover, the Restatement notes that 
understanding the behavior of children of all ages, 
experience, and mental ability is within the apprehension of 
the general public.87  But could not the same arguments be 
made to justify applying the subjective rule to adults with 
mental disabilities?  The variations in abilities and 
temperaments of adults with mental disabilities are surely 
no greater than among children.  And predicting the 
behavior of children with mental disabilities is outside the 
basic understanding of most members of the public. 

 
C. Judicial Exceptions to the Bifurcated Rule 

 
                                                      

83  Id., at 1203 (quoting the trial court). 
84  Young v. Grant, 290 So. 2d 706, 707 (La. Ct. App. 1974). 
85  Id. at 710-11.  The court stated further that the record indicated 

that “this child, ten years of age, and having about six years’ experience 
in handling a bicycle was of sufficient capacity to realize the obvious 
danger of turning her bicycle into the path of an oncoming automobile 
only ten feet away from her despite her mentally retarded condition.”  
Id. at 710. 

86  Id. at 711. 
87  RESTATEMENT (SECOND) OF TORTS § 283A cmt. b (1965). 



614 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 

Some courts have recognized that the bifurcated rule for 
adults achieves anomalous or unfair results under certain 
circumstances and have developed exceptions on public 
policy grounds.  The Supreme Court of Wisconsin has been 
especially active in this respect.  In Breunig v. American 
Family Insurance Co.,88 the Wisconsin Supreme Court 
expanded the “sudden incapacitation” defense in negligence 
law to encompass at least some mental conditions.  In so 
doing, the court departed from the majority rule which the 
Third Restatement states as follows:  “The conduct of an 
actor during a period of sudden incapacitation or loss of 
consciousness resulting from physical illness is negligent 
only if the sudden incapacitation or loss of consciousness 
was reasonably foreseeable to the actor.”89  The defense as 
so stated applies only when the sudden incapacitation is 
due to “physical illness,” not mental illness.  And liability is 
foreclosed only if the party could not have reasonably 
foreseen the onset of the incapacitation. 

The Wisconsin Supreme Court, however, broadened the 
rule to encompass sudden mental incapacitation.  Breunig 
involved a motor vehicle accident in which the alleged 
tortfeasor’s insurer argued that its insured could not be 
found negligent because “just prior to the collision she 
suddenly and without warning was seized with a mental 
aberration or delusion which rendered her unable to operate 
the automobile with her conscious mind.”90  Extending the 
traditional rule, the court held that the jury should have 
been allowed to consider the evidence of the insured’s 
mental illness.91  The court stated this broader rule as 
follows: 

                                                      
88  173 N.W.2d 619 (Wis. 1970). 
89 RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 

EMOTIONAL HARM § 11(b) (2010). 
90  Breunig, 173 N.W.2d at 621-22. 
91  On appeal from a jury verdict for the plaintiff, the Wisconsin 

Supreme Court began its opinion by stating that at the time of the 
accident, the insured was in the throes of “an insane delusion” that 
interfered with her ability to drive the automobile as a reasonably 
prudent person would.  Id. at 622.  The conclusion was supported by the 
testimony of the insured’s treating psychiatrist, who stated that at the 
time of the accident she suffered from acute paranoid schizophrenia and 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              615 
 

 
 

 
The effect of the mental illness or mental 
hallucinations or disorder must be such as to 
affect the person’s ability to understand and 
appreciate the duty which rests upon him to 
drive his car with ordinary care, or . . . it must 
affect his ability to control his car in an 
ordinarily prudent manner.92 
 

The court saw no valid legal distinction between physical 
and mental incapacitation that would merit a different 
result, provided that the incapacitation was unforeseeable.93  
This rule implicitly acknowledges that, at least in some tort 
contexts, a distinction between the mentally disabled person 
and the physically disabled person is unwarranted.  It also 
suggests that a subjective standard for adult defendants is 
workable, regardless of whether the disability is physical or 
mental. 

Gould v. American Family Mutual Insurance Co. 
presented a different set of circumstances that warranted 
treating mental and physical disabilities the same under 
the law of negligence.  Gould involved a plaintiff who was 
the head nurse of a dementia unit in a health care facility 
and who was injured by the defendant’s insured, an 
Alzheimer’s patient in the facility.94  The trial court refused 
to give an instruction that would have required the jury to 
consider the insured’s mental state, and the jury found the 
insured one hundred percent negligent.95  The Wisconsin 
                                                                                                                           
had no advance warning that she would be overtaken by a delusion to 
the extent that she could not operate her automobile.  Id. at 622-23.  
The opinion contained nothing that would suggest that the 
psychiatrist’s testimony included any overt discussion of the physical 
basis of the insured’s mental illness. 

92  Id. at 623. 
93  One reason the court may have been willing to go the distance in 

applying the sudden incapacitation defense to a sudden mental 
disability was that the circumstances logically ruled out the possibility 
that the insured would have feigned her condition to avoid liability. 

94  Gould v. Am. Family Mut. Ins. Co., 543 N.W.2d 282, 283 (Wis. 
1996). 

95  Id. at 284. 



616 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
Supreme Court held, however, that where the alleged 
tortfeasor is institutionalized for a mental disability, and 
the plaintiff is his or her professional caretaker,96 the 
defendant’s mental disability must be considered.97 

The Gould court reasoned that three of the most often 
invoked policies to support the bifurcated rule failed in the 
caretaker context.98  First, the court noted that this was not 
a case between two “innocent” parties requiring that the 
loss shift to the defendant.  Rather, the plaintiff could not 
be considered “innocent” because she was employed as a 
caretaker, had professional training and held a supervisory 
position, and was familiar with the insured’s propensity for 
violent outbursts related to his mental condition.99  Second, 
the threat of liability would have no further deterrent value 
on those who may be interested in his estate, as his family 
had already made the ultimate decision to place him in a 
secure dementia facility.100  Third, the notion that a person 
would feign the symptoms of Alzheimer’s disease and 
undergo institutionalization simply to avoid the possibility 
of tort liability in the future was “incredible.”101  Courts in 
several other jurisdictions have created a similar exception 
                                                      

96  Alternatively, the doctrine of primary assumption of the risk has 
been successfully invoked in some cases addressing similar factual 
circumstances.  For example, in Gregory v. Cott, 152 Cal. Rptr. 3d 304 
(Cal. Ct. App. 2013), aff’d, 331 P.3d 179 (Cal. 2014), a claim brought by 
an in-home caregiver against an Alzheimer’s patient was dismissed on 
summary judgment based upon the defense of assumption of the risk.  
The court stated the general rule that recovery will be denied to a 
plaintiff when “‘the nature of the activity involved and the parties’ 
relationship to the activity [establishes that] the defendant owed the 
plaintiff no duty of care.’”  Id. at 307 (quoting Neighbarger v. Irwin 
Indus., Inc., 882 P.2d 347, 351 (Cal. 1994)).  The court then concluded 
that a person hired to care for an Alzheimer’s patient, whether in the 
patient’s home or in a care facility, has assumed the risk of injury from 
the dangerous propensities of the patient.  Id. at 310. 

97  Gould,  543 N.W.2d 282 at 287. 
98  The court stated:  “[W]e conclude that this rule does not apply in 

this case because the circumstances totally negate the rationale behind 
the rule and would place an unreasonable burden on the negligent 
institutionalized mentally disabled.”  Id. 

99  Id. at 286-87. 
100  Id. at 287. 
101  Id. 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              617 
 

 
 

to the traditional bifurcated duty rule for the circumstances 
presented in the Gould case.102 

Such exceptions represent significant, if small, steps 
toward relieving persons with mental disabilities from the 
strictures of a bifurcated rule that no longer fits most 
situations.  These exceptions favor a case-by-case analysis of 
whether the circumstances of an individual case serve the 
policies underlying the traditional rule.  Thus, the nature 
and extent of the alleged tortfeasor’s disability would be a 
factor or circumstance—along with all the other relevant 
circumstances—in determining the nature of the duty owed, 
if any, to the plaintiff.  If rejection of the objective standard 
for persons with mental disabilities is appropriate in some 
situations, it is reasonable to ask whether the bifurcated 
rule has any continued viability.  Does an objective 
standard for persons with mental disabilities continue to 
make sense in an era in which neuroscientific technologies 
are capable of providing more information than ever about 
the link between the brain and behavior?  Would a 
subjective standard—and a unified one for all torts—better 
serve the interests of mentally disabled parties and society 
in general?  The remainder of this Article explores the role 
that neuroscience may play in answering these questions. 
 

III. MENTAL DISABILITY IN TORT DOCTRINE:  IS 
THERE A ROLE FOR NEUROSCIENCE? 

 
This Article argues that neuroscience provides crucial 

support for reforming negligence doctrine so as to create a 
subjective standard for mentally disabled parties in tort 
actions.  Neuroscience evidence, when appropriately 
admitted, may reduce guessing in the courtroom about the 
relationship between the person’s mental condition and his 
                                                      

102 See Colman v. Notre Dame Convalescent Home, Inc., 968 F. 
Supp. 809, 814 (D. Conn. 1997); Mujica v. Turner, 582 So. 2d 24, 25 (Fla. 
Dist. Ct. App. 1991); Anicet v. Gant, 580 So. 2d 273, 275 (Fla. Dist. Ct. 
App. 1991) (stating that the same rule and exception apply to 
intentional torts and negligence); Creasy v. Rusk, 730 N.E.2d 659, 667 
(Ind. 2000); Berberian v. Lynn, 845 A.2d 122, 123 (N.J. 2004). 

 



618 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
or her behavior in the circumstances of the case.  
Neuroscience may also play a role in correcting inaccurate 
stereotypes of the mentally disabled.  Most importantly, 
applying a subjective standard that allows neuroscientific 
evidence to demonstrate mental states would force courts to 
take a hard look at the policies underlying the bifurcated 
rule.  Courts likely will find that information obtained from 
neuroimaging could eschew an outmoded doctrine based 
upon obsolete or ineffectual policies.  But is neuroscience 
ready for legal prime time?  This is a vigorously debated 
question.  Many experts tout the value of neuroimaging 
studies while cautioning against an overly enthusiastic 
espousal of studies that may promise more than they can 
deliver.103 

 
A. A Very Brief Look at the Advantages and Weaknesses of 

Functional Neuroimaging 
 

Mental disability in tort cases may be explained by both 
traditional psychiatric diagnosis or by psychiatric diagnosis 
combined with information obtained from structural and 
functional neuroimaging.  Structural neuroimaging, such as 
the well-known techniques of magnetic resonance imaging 
(MRI) and computed tomography (CT) scans, and 
neurophysiological techniques such as the 
electroencephalogram (EEG) have been mainstays in 
identifying brain abnormalities.104  More recently, 
functional neuroimaging techniques have been able to 
provide psychiatrists with additional information about 

                                                      
103  See Geoffrey K. Aguirre, Functional Neuroimaging:  Technical, 

Logical, and Social Perspectives, in Special Report: Interpreting 
Neuroimages: An Introduction to the Technology and Its Limits, 
HASTINGS CTR. RPT. S8, S8 (Mar.-Apr. 2014).  Professor Aguirre 
expressed concern for the use of neuroimaging outside its home 
discipline:  “During its rapid growth, however, neuroimaging has made 
multiple lateral moves to new areas of intellectual investigation. A 
feature of this ‘imaging colonization’ is that the method has moved more 
quickly than the hard-won cautionary experience would recommend.”  
Id.  The law is one such new area requiring caution. 

104  See generally NANCY C. ANDREASEN & DONALD W. BLACK, 
INTRODUCTORY TEXTBOOK OF PSYCHIATRY 101-15 (3d ed. 2001). 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              619 
 

 
 

brain function and dysfunction in persons with mental 
illnesses.105  Functional neuroimaging incorporates 
technologies such as positron emission tomography (PET) 
scans,106 single photon emission computed tomography 
(SPECT) scans,107 and functional magnetic resonance 
imaging (fMRI)108 to observe brain function under certain 
controlled stimuli.109 

                                                      
105  Id. at 116 (“Through the extensive application of these functional 

imaging techniques . . . we have learned a great deal about dysfunctions 
in neural circuitry that occur in mental illnesses.”). 

106  The PET scan involves the use of small amounts of radioactive 
chemicals that are injected into the subject which allow the technician 
to observe brain function by detecting the collection of radioactivity in 
various parts of the brain.  The technician then analyzes this activity 
over time in a series of static images.  Owen D. Jones et al., Brain 
Imaging for Legal Thinkers:  A Guide for the Perplexed, 2009 STAN. 
TECH. L. REV. 5, ¶ 14 (2009). 

107 The SPECT scan combines the technology of the cranial 
computed tomography (CT) scan and the radioactive feature of the PET 
scan.  CT scans use a combination of X-rays and dyes to detect 
physiological anomalies in the brain.  See Henry T. Greely & Anthony 
D. Wagner, Reference Guide on Neuroscience, in REFERENCE MANUAL 
ON SCIENTIFIC EVIDENCE 747, 762-63 (Fed. Judicial Ctr. & Nat’l 
Research Council of the Nat’l Acads eds., 3d ed. 2011).  The SPECT 
process allows visualization of the flow of blood through the brain’s 
blood vessels to observe brain function.  See id. at 765.  Like the CT 
scan, a computer creates cross-sectional images of the brain, which may 
then be assembled into three-dimensional images. 

108  fMRI is a variation of the widely used magnetic resonance (MRI) 
technology, which uses a strong magnet and radio waves to obtain 
detailed structural images of the brain.  See What is fMRI?:  Imaging 
Brain Activity, U.C. SAN DIEGO SCH. OF MED., 
http://fmri.ucsd.edu/Research/whatisfmri.html (last visited May 18, 
2015).  fMRI technology examines brain function in real time.  The 
technician determines blood oxygen levels in part of the brain by 
detecting the activity of iron atoms in the blood.  Certain distortions in 
the magnetic field may indicate changes in the brain associated with the 
particular task in which the subject is engaged.  See Jones et al., supra 
note 106, ¶ 18.  The underlying physiological principle is that whenever 
a particular part of the brain becomes active, the small blood vessels in 
that region dilate, causing more oxygenated blood to rush in.  See 
Michael D. Fox & Marcus E. Raichle, Spontaneous Fluctuations in 
Brain Activity Observed with Functional Magnetic Resonance Imaging, 
8 NATURE REVS. NEUROSCI. 700, 701 (2007) (stating that the term 
“active” refers to the detected oxygen level in a particular region of the 

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620 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 

What applicability may these techniques have to tort 
actions?  Their potential is substantial.  Diagnosis of a 
mental illness or other mental condition has traditionally 
been made by a psychiatrist who interprets the symptoms 
presented by the patient in conjunction with any clinical 
medical tests and determines whether they fall within the 
accepted professional parameters of a known condition.110  
Although diagnoses serve a valuable purpose in the law—
particularly in medical malpractice litigation111 and in 
assessment of injury—diagnosis generally is not a 
prerequisite to a finding of tortious conduct.112  Some 
experts have suggested that functional neuroimaging may 
provide better information on behavior than reliance solely 
on psychiatric diagnosis.113  Both the psychiatric analysis of 
mental conditions and the physiological observation of 
functional brain systems may be applicable to a particular 
tortfeasor’s conduct.  Tort law—and much of law 
                                                                                                                           
brain in response to various stimuli).  The analytical process used to 
detect this function is known as blood oxygen level dependent (BOLD) 
contrast.  Daniel D. Langleben et al., True Lies:  Delusions and Lie-
Detection Technology, 34 J. PSYCHIATRY & L. 351, 359 (2006). 

109  See ANDREASEN & BLACK, supra note 104, at 115-21. 
110  Id. at 22-23. 
111  Id. at 29. 
112 See Paul S. Applebaum, Reference Guide on Mental Health 

Evidence, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 813, 819 
(Fed. Judicial Ctr. & Nat’l Research Council of the Nat’l Acads. eds., 3d 
ed. 2011).  Speaking generally about both civil and criminal law, Dr. 
Applebaum stated:  “A diagnosis of mental disorder per se will almost 
never settle the legal question in a case in which mental health evidence 
is presented. However, a diagnosis may play a role in determining 
whether a claim or proceeding can go forward.”  Id.  Yet, there are 
studies that have demonstrated a connection between organic brain 
damage or other brain condition and sociopathic behavior.  See Dean 
Mobbs et al., Law, Responsibility, and the Brain, 5 PLOS BIOL. 0693 
(2007), available at 
http://journals.plos.org/plosbiology/article?id=10.1371/journal.pbio.0050
103. 

113  See Lisa T. Eyler et al., Brain Response Correlates of Decisional 
Capacity in Schizophrenia:  A Preliminary fMRI Study, 19 J. 
NEUROPSYCHIATRY & CLINICAL NEUROSCI. 137, 138 (2007) (stating that 
“functional imaging may be a better tool for examining sources of 
variability in decisional capacity than neuropsychological measures 
alone”). 

http://dx.doi.org/10.1371/journal.pbio.0050103
http://dx.doi.org/10.1176/appi.neuropsych.19.2.137


2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              621 
 

 
 

generally—focuses on the ability of persons to function in a 
variety of social situations, both in terms of their capacity to 
make decisions and their ability to behave in socially and 
legally acceptable ways.114  Thus, theoretically at least, tort 
law could benefit from information obtained through the 
techniques of neuroimaging. 

Neuroscience evidence has appeared steadily in criminal 
law cases in recent decades at all phases of criminal 
adjudication—pre-trial, guilt, sentencing, and post-
conviction.115  In State v. Marshall, for example, the 
defendant moved to withdraw his guilty plea to aggravated 
first degree murder on the ground of incompetency, arguing 
that the trial court had erroneously declined to convene a 
competency hearing.116  The court held that the record 
showed sufficient evidence to call into question the 
competency of the defendant when he sought to withdraw 
the plea because there was proof of “long-standing brain 
dysfunction, with significant atrophy in the temporal and 
frontal lobes.”117  The neuroscientific evidence included an 
MRI, a SPECT scan, and an EEG, all of which revealed 
abnormalities that experts opined were associated with 
impaired cognitive abilities.118  The court vacated the plea 
and remanded the case.119  In matters related to sentencing, 
the U.S. Supreme Court has weighed in on the value it 
attaches to neuroscience studies, at least with regard to 
brain development in juveniles.  In Roper v. Simmons, the 
Supreme Court ruled that the Eighth and Fourteenth 
Amendments to the U.S. Constitution prohibit the death 
penalty for a person under the age of eighteen at the time of 

                                                      
114  See Applebaum, supra note 112, at 820. 
115  See Grafton, supra note 6, at 55. 
116  State v. Marshall, 27 P.3d 192, 198 (Wash. 2001). 
117  Id. at 199. 
118  Id. at 197. 
119  Id. at 200.  But see United States v. Hammer, 404 F. Supp. 2d 

676, 723 (M.D. Pa. 2005).  In Hammer, although the court allowed 
neuroscientific data obtained from MRI and PET scans to be considered 
on the issue of the defendant’s competence, the court ruled that the 
plaintiff’s expert’s opinion that the defendant was incompetent was not 
credible.  Id. at 792-93. 



622 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
the capital crime for which he or she was convicted.120  In 
its opinion, the Court favorably referenced the amicus brief 
of the American Medical Association, the American 
Psychiatric Association, and other professional 
organizations, which discussed neuroscience studies, 
including those conducted using fMRI, on adolescent brain 
development.  The amicus brief stated:  “To a degree never 
before understood, scientists can now demonstrate that 
adolescents are immature not only to the observer’s naked 
eye, but in the very fibers of their brains.”121  The Court 
adopted this view of the juvenile brain and concluded that it 
rendered the death penalty unconstitutional for juveniles.122 

By contrast, neuroscientific evidence in tort cases is 
scarce, except to prove damages.123  One reason for this may 
be practical.  Tort law does not involve incarceration or 
capital punishment, and thus there is less urgency to obtain 
and introduce evidence from new technologies which may be 

                                                      
120  Roper v. Simmons, 543 U.S. 551, 578 (2005). 
121 Brief for the American Medical Association et al. as Amici Curiae 

Supporting Respondent, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-
633), at 10. 

122  Roper, 543 U.S. at 568.  More recently, in Miller v. Alabama, 132 
S. Ct. 2455 (2012), the Court once again gave its attention to the 
neuroscience of the juvenile brain.  The Court held that mandatory life 
imprisonment without parole for persons under the age of eighteen 
violated the Eighth Amendment’s prohibition of cruel and unusual 
punishment, noting that “‘brain science continue[s] to show 
fundamental differences between juvenile and adult minds.’”  Id. at 
2464 (quoting Graham v. Florida, 560 U.S. 48, 68 (2010)).  Referencing 
the line of cases about punishment of juveniles, the Court declared:  
“Our decisions rested not only on common sense—on what ‘any parent 
knows’—but on science and social science as well.” Id.   

123  Clearly brain scans of various sorts prove useful in tort cases, 
mostly to identify structural problems, such as fractures, bleeding, or 
other anomalies.  What is more difficult is the task of determining the 
extent to which a plaintiff may be experiencing pain.  See generally 
Adam J. Kolber, The Experiential Future of the Law, 60 EMORY L.J. 
585, 608-13 (2011) (discussing the potential role of neuroimaging in 
compensation for pain in tort); Adam J. Kolber, Pain Detection and the 
Privacy of Subjective Experience, 33 AM. J.L. & MED. 433, 443-49 (2007) 
(discussing using neuroimaging techniques to measure pain and 
suffering). 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              623 
 

 
 

expensive.124  Another reason may be that neuroscience—
and any other area of scientific endeavor that seeks to 
provide a complete explanation of human behavior—may be 
viewed as antithetical to the social norms inherent in tort 
law.  Professor Stephen J. Morse has stated that criminal 
law is based on “folk psychology,” which views humans as 
rational beings and not “mechanical forces of nature.”125  
This same general concept lies at the foundation of tort law, 
and courts resist any model of tort law that views persons 
as acting without this element of reason and choice.126  But 
neuroscience need not be so viewed.127  Rather, neuroscience 
may be a means to advance the goals of tort law.  This 
Article urges courts to expand their notion of the traditional 
model of tort law to allow neuroscience to facilitate the 
accurate resolution of disputes and reform outmoded 
doctrines. 
                                                      

124  Cf. Stephen J. Morse, Neuroimaging Evidence in Law:  A Plea 
for Modesty and Relevance, in NEUROIMAGING IN FORENSIC PSYCHIATRY:  
FROM THE CLINIC TO THE COURTROOM 341, 342 (Joseph R. Simpson ed., 
2012) (stating that the use of neuroimaging in criminal cases appears to 
be scarce (though precise estimates of its use are difficult because of the 
propensity for criminal cases to end in plea bargains), in part because of 
the expense of the technology). 

125 See Stephen J. Morse, Determinism and the Death of Folk 
Psychology:  Two Challenges to Responsibility from Neuroscience, 9 
MINN. J.L. SCI. & TECH. 1, 4 (2008).  Morse focuses his discussion on 
responsibility in criminal law, but many of his points ring true for tort 
law as well. 

126 Even in the areas of tort law governed by strict liability, 
defendants have voluntarily chosen to engage in the activity, such as 
blasting (strict liability for an abnormally dangerous activity), knowing 
the risk of tort liability.  See, e.g., Sterling v. Velsicol Chem. Co., 647 F. 
Supp. 303, 315-16 (W.D. Tenn. 1986) (strict liability for disposing of 
toxic waste), aff’d in part, rev’d in part and remanded 855 F.2d 1188 
(6th Cir. 1988). 

127  In speaking of the relevance that neuroscience may have to the 
law (and to criminal law in particular) Professor Morse has stated:  “The 
question is whether the new neuroscience is legally relevant because it 
makes a proposition about responsibility or competence more or less 
likely to be true. Any legal criterion must be established independently, 
and biological evidence must be translated into the criminal law’s folk-
psychological criteria.”  Stephen J. Morse, Avoiding Irrational Neurolaw 
Exuberance:  A Plea for Neuromodesty, 62 MERCER L. REV. 837, 841 
(2011). 



624 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 

But courts must also exercise caution.  Commentators 
are not in agreement about either the meaning of the 
information obtained from neuroimaging or the utility of 
neuroscientific information in determining legal issues.128  
Indeed, disagreement exists within the neuroscience 
community on the interpretation of neuroimaging 
studies.129  One source of skepticism has been the fact that 
many brain functions are recruited to process the 
information relevant to the particular task a study subject 
is engaged in; accordingly, identification of the precise brain 
processes involved may be speculative.  This is particularly 
relevant to the kinds of normative judgments that the law 
makes.130  Moreover, individual results may vary from the 
averages employed in interpreting scan data.131  Concerns 
abound over the problems of reproducing results,132 and 
commentators have warned that the technology of brain 
imaging has all the hallmarks of an emerging science that 
has not yet achieved full reliability.133  Translating clinical 
                                                      

128  See Teneille Brown & Emily Murphy, Through a Scanner 
Darkly: Functional Neuroimaging as Evidence of a Criminal 
Defendant’s Past Mental States, 62 STAN. L. REV. 1119, 1162 (2010); 
Greely & Wagner, supra note 107, at 782. 

129  See, e.g., Brown & Murphy, supra note 128, at 1140-41 (stating 
that in fMRI studies there lacks scientific consensus on how to interpret 
the relationship between the observable BOLD response and 
conclusions about the brain activity or mental states of subjects). 

130  See Oliver R. Goodenough & Kristin Prehn, A Neuroscientific 
Approach to Normative Judgment in Law and Justice, 359 PHIL. TRANS. 
R. SOC’Y LOND. SERIES B, BIOL. SCI. 1709, 1717 (2005). 

131  Jones et al., supra note 106, ¶ 33.  Professors Greely and Iles 
have pointed out:  “It is . . . possible that two independent subjects will 
show different patterns of [brain] activation while their behavioral 
performances are comparable.  Although subjects perform the same 
behavioral task, they might employ different strategies, thereby 
recruiting different neural networks, resulting in different patterns of 
activation.”  Henry T. Greely & Judy Illes, Neuroscience-Based Lie 
Detection: The Urgent Need for Regulation, 33 AM. J.L. & MED. 377, 382 
(2007). 

132 See WILLIAM R. UTTAL, NEUROSCIENCE IN THE COURTROOM:  
WHAT EVERY LAWYER SHOULD KNOW ABOUT THE MIND AND THE BRAIN 
55-61 (2009). 

133  Morse, supra note 124, at 344 (stating that the “neuroscience of 
cognition and interpersonal behavior is largely in its infancy”); see 
Eggen & Laury, supra note 9, at 302-03 (noting that courts are likely to 

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2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              625 
 

 
 

studies conducted under artificial circumstances may not 
yet provide optimal—or even minimal—information on the 
real-world situations that tort cases address. 

In addition to the problem of reliably applying 
neuroscientific data to real-world human interactions, 
neuroscience is incapable of demonstrating what a person 
was thinking or planning at the time of the alleged tort.134  
This historical problem—i.e. the inability of neuroimaging 
to provide information about brain activity retrospectively—
does not mean that neuroscience is useless in tort law, 
however.  A narrowly circumscribed example is the 
information gleaned from the studies of informed consent 
among persons diagnosed with schizophrenia.135  Those 
studies focused on the brain activity of the subjects when 
confronted with a task at the time of the clinical study.  
Because all subjects shared the same mental diagnosis, 
these studies could yield (1) current and prospective insight 
into the ability of schizophrenics, in general, to understand 
informed consent as well as (2) retrospective insight into 
how the subjects, and others similarly situated, may have 
acted in the past, provided that evidence of schizophrenia 
existed at the relevant point in time.  But here, too, caution 
is paramount.  Any attempt to generalize about a specific 

                                                                                                                           
treat neuroimaging evidence used in new and unprecedented ways as 
novel evidence, thereby making admissibility more problematic). 

134  See Greely & Wagner, supra note 107, at 797.  The authors offer 
a somewhat pessimistic view of the utility of neuroscience data in the 
legal context: 

[T]he best [neuroscience] may be able to do is to say 
that, based on your current mental condition or state, as 
shown by the current structure or functioning of your 
brain, you are more or less likely than average to have 
had a particular mental state or condition at the time of 
the relevant event. 

Id.; cf. Elizabeth Ford & Neil Aggarwal, Neuroethics of Functional 
Neuroimaging in the Courtroom, in NEUROIMAGING IN FORENSIC 
PSYCHIATRY:  FROM THE CLINIC TO THE COURTROOM 325, 327 (Joseph R. 
Simpson ed., 2012) (stating that “neuroscientists can explain the neural 
processes of behavior, but not the presence of intentionality during a 
criminal act”). 

135  See Eyler et al., supra note 113, at 141-43. 



626 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
event in the past would require expert extrapolation, which 
may or may not be admissible in court.136 

Thus, even from the perspective of a nonscientist, it is 
clear that neuroimaging is not ready to answer many 
behavioral questions with certainty.  Efforts to use 
neuroscience for such varied concepts as lie detection,137 
product marketing,138 and emotional distress damages139 
are more aspirational than factual at the present time.  But 
this does not mean that neuroscience has no use in the 
courtroom generally or in tort law specifically.  Professor 
Martha J. Farah has called for a balanced approach to the 
shortcomings and vulnerabilities of neuroimaging studies.  
She has pointed to issues in cognitive psychology that 
neuroimaging studies have in fact been useful in 
answering.140  She notes—as this Article explains more fully 
in Part IV—that concerns about the accurate statistical 
analyses of brain imaging data are generally no different 
than concerns about statistical information in other 

                                                      
136  Researchers have also noted that human brains simply change 

over time, and an fMRI scan conducted at some point in time after the 
event under scrutiny (such as a criminal act) does not necessarily allow 
for a conclusion that the same results would have been seen at the 
earlier date.  Jones et al., supra note 106, ¶ 39. 

137 See, e.g., Daniel D. Langleben, Detection of Deception with fMRI: 
Are We There Yet?, 13 LEGAL & CRIMINOLOGICAL PSYCHOL. 1 (2008); 
Jane Campbell Moriarty, Visions of Deception: Neuroimages and the 
Search for Truth, 42 AKRON L. REV. 739 (2009); Frederick Schauer, 
Neuroscience, Lie-detection, and the Law, 14 TRENDS IN COGNITIVE SCI. 
101 (2010); Joseph R. Simpson, Functional MRI Lie Detection: Too Good 
to be True?, 36 J. AM. ACAD. PSYCHIATRY & L. 491 (2008). 

138 See Maggie Fox, Now Scientists Read Your Mind Better Than 
You Can, Reuters (June 22, 2010, 5:00 PM), 
http://www.reuters.com/article/2010/06/22/brain-reading-
idUSN2214937420100622 (reporting a study showing that fMRI scans 
predicted consumer choices 75% of the time, while consumers 
consciously predicted their behavior only 50% of the time). 

139  See Greely & Wagner, supra note 107, at 810 (suggesting that 
such research could become useful in cases involving emotional distress, 
but noting that the accuracy of current studies in unknown). 

140 Martha J. Farah, Brain Images, Babies, and Bathwater:  
Critiquing Critiques of Functional Neuroimaging, in Special Report: 
Interpreting Neuroimages: An Introduction to the Technology and Its 
Limits, HASTINGS CTR. RPT. S19, S23 (Mar.-Apr. 2014). 

http://dx.doi.org/10.1348/135532507x251641
http://dx.doi.org/10.2139/ssrn.2165391


2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              627 
 

 
 

disciplines.141  Nevertheless close scrutiny of neuroscience, 
especially when used in non-scientific disciplines such as 
the law, remains warranted. 

 
B. Stigma and Stereotypes 

 
The law is a function of its time and place.  Tort law has 

been especially slow to relinquish older concepts of human 
behavior, which may contribute to lingering and misleading 
views of persons with mental disabilities.  Public 
perceptions of mental illness and other mental disorders 
often contain negative stereotypes, which may include low 
intelligence, lack of control, and violent behavior.142  Such 
stereotypes have created a legal stigma that is difficult to 
overcome.  In a study published in 1999, the researchers 
observed that their results “reflect an underlying negative 
attitude [of the general public] toward persons with mental 
health problems, an exaggeration of the impairments or 
‘threat’ associated with these disorders, and a startling 
negativity toward individuals with substance dependence 
problems.”143  Tort law incorporates and perpetuates such 
stereotypes in subtle and not-so-subtle ways by clinging to 
legal doctrines such as the bifurcated rule of duty. 

Although public education about the realities of mental 
disabilities is the primary vehicle for correcting negative 
stereotypes, it is not unreasonable to ask the law to do its 
part and reject the adherence to negative stereotypes.  
Neuroscientific evidence of mental conditions could be a 
step toward correcting inaccurate assumptions and 
                                                      

141  Id. at S24.  Professor Farah also cautioned:  “As we apply such 
scrutiny, it is important to distinguish between specific criticisms of 
particular applications or specific studies and wholesale criticisms of the 
entire enterprise of functional neuroimaging.”  Id. at S28. 

142 See Bernice A. Pescosolido et al., The Public’s View of the 
Competence, Dangerousness, and Need for Legal Coercion of Persons 
with Mental Health Problems, 89 AM. J. PUB. HEALTH 1339, 1339 (1999) 
(noting, among other things, that mental health law in the United 
States is based on an assumption that “mental disorders may place a 
person at increased risk of physically harming himself or herself or 
others”). 

143  Id. at 1345. 

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628 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
stereotypes about mental illness.  The existing legal 
decisions are replete with archaic and negative terminology 
about mentally challenged parties.144  Neuroscience is 
poised to provide courts—and by extension the general 
public—with more accurate information about mental 
conditions, thereby leading to more accurate results in 
individual cases. 

One commentator has suggested, however, that allowing 
mental health evidence in the courtroom could actually 
perpetuate the stigma associated with mental conditions, 
rather than erase it.  Professor Paul S. Appelbaum has 
observed: 

 
Diagnoses of mental disorders often are 
perceived to be less reliable and more 
subjective than diagnoses of other medical 
conditions.  Symptoms of mental disorders may 
be seen as reflections of moral weakness or 
lack of will, and the impact of disorders on 
functional abilities may not be recognized, or 
occasionally may be exaggerated.  The 
potential impact and limits of current 
treatments are not widely understood.  Indeed, 
even the various types of mental health 
professionals are frequently confused.145 

 
These observations raise the question whether tort law 
should delve into the mental conditions of alleged 
tortfeasors at all.  Would establishing a subjective rule for 
                                                      

144 The language employed in many cases and the Restatements 
contains extreme terminology, such as referring to a mentally disabled 
person as a “lunatic,” see, e.g., McIntyre v. Sholty, 13 N.E. 239, 240 (Ill. 
1887); or “insane,” see, e.g., Johnson v. Lambotte, 363 P.2d 165, 166 
(Colo. 1961).  The Restatement has grouped all mental conditions under 
the label “mental defectives.”  See RESTATEMENT (SECOND) OF TORTS § 
283B cmt. b(3) (1965).  Given the age of some of these sources—or the 
fact that legal doctrines contain similar language, such as the insanity 
defense in criminal law—some of these terms could be viewed as archaic 
terminology.  But what is not appropriate is that they represent 
negative stereotypes that have persisted in substantive legal doctrine. 

145  Appelbaum, supra note 112, at 821 (footnotes omitted). 
 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              629 
 

 
 

mentally challenged adult defendants in negligence actions 
ingrain in the tort system the notion that all persons with 
mental conditions lack control, harm others and themselves, 
or worse?  Would the rule erase stigma or increase stigma?  
This Article has taken the position that more information is 
superior to mere conjecture and that, on balance, reforming 
the bifurcated rule to treat mentally disabled adults the 
same as other adults and children is the better course in the 
age of neuroscience. 
 

C. Is Tort Law Ready for Neuroscience?:  Revisiting the 
Policies of the Bifurcated Rule 

 
Social policy driven rules always represent a balance of 

various goals, all of which are beneficial but some of which 
may conflict in particular circumstances.  In tort law, which 
is heavily driven by social policy, courts are forced to decide 
which goals to favor over the others.  In considering the 
bifurcated rule in relation to neuroscience, it is appropriate 
at this juncture to revisit the traditional policy justifications 
for the rule and reconsider that balance.146 

One policy justification for the bifurcated rule has been 
that if mentally disabled persons are to “live in the world”—
i.e. the prevailing social policy in favor of 
deinstitutionalization—they should compensate those whom 
they injure.147  Those who favor an objective standard for 
persons with mental disabilities have argued that an 
objective rule not only protects members of the community 
but also encourages equal treatment of the mentally 

                                                      
146  In the 20th century, several commentators examined in detail 

the policies underlying the bifurcated rule and concluded that they are 
not justified in modern society.  See, e.g., Korrell, supra note 8, at 27-46; 
see also other articles cited supra note 8.  Accordingly, this Article will 
not undertake that level of detailed policy analysis, but instead will add 
the neuroscience component to the policy discussion. 

147  See Creasy v. Rusk, 730 N.E.2d 659, 664 (Ind. 2000) (stating:  “It 
is clear . . . that contemporary public policy has rejected 
institutionalization and confinement for a ‘strong professional 
consensus in favor of . . . community treatment . . . and integration into 
the least restrictive . . . environment.’”). 



630 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
disabled in the community.148  There is little proof, however, 
that tort law’s treatment of mentally disabled persons 
differently from persons with physical disabilities achieves 
any of the goals of full assimilation into society.149  Indeed, a 
rule that treats the mentally disabled differently from the 
physically disabled or children identifies them as different 
and threatens to prolong the stigma and accentuate the 
negative stereotypes experienced by them. 

A second and related policy rationale for the bifurcated 
rule is the fundamental premise of tort law that  the cost of 
losses should be shifted from the injured party to the person 
who caused the injury.  In many cases, this policy is 
expressed as the notion that as between two “innocent” 
parties, the person who caused the injury should pay.  A 
more accurate statement of this policy, and one that is more 
consistent with tort doctrine, is that the person whose fault 
caused the injury should pay.  The corollary to this 
statement is that a person incapable of being deemed at 
fault, whether because of physical or mental disabilities, 
should not be required to pay for the injury he or she 
caused.150  Although modern tort doctrine incorporates 
pockets of strict liability,151 the broad categories of 
intentional torts and negligence are firmly fault-based 
aspects of tort law.  The bifurcated rule ignores the fault 
basis of tort law for a segment of the population. 

Third, courts have expressed concern that a subjective 
rule for persons with mental disabilities would encourage 
others to feign the symptoms of mental disabilities to escape 
their own tort liability.  This policy rationale may have had 
some force in an era when psychiatric diagnosis functioned 
without the assistance of technology.152  With the evolution 
                                                      

148  See Stephanie I. Splane, Note, Tort Liability of the Mentally Ill 
in Negligence Actions, 93 YALE L.J. 153, 163-64 (1983). 

149  Korrell, supra note 8, at 40-41. 
150  See HOLMES, supra note 1, at 109. 
151  See, e.g., Dyer v. Maine Drilling & Blasting, Inc., 984 A.2d 210, 

219 (Me. 2009) (strict liability for abnormally dangerous activities); 
Burley v. Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397, 408-09 
(S.D. 2007) (strict liability for a product manufacturing defect). 

152  See generally ANDREASEN & BLACK, supra note 104, at 7-19 
(providing a brief history of scientific psychiatry). 

http://dx.doi.org/10.2307/796248


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of technologies that examine the brain both structurally and 
functionally and that may be used as diagnostic tools to 
identify functional impairments in the brain, the possibility 
of widespread fabrication of symptoms is diminished, 
though not eliminated. 

Fourth, as the Second Restatement stated, courts 
continue to disregard the mental disabilities of adult tort 
defendants because of the courts’ own difficulties 
distinguishing clinical mental conditions from “variations in 
temperament, intellect, and emotional balance.”153  This 
concern is coupled with a concern for the “unsatisfactory 
character of the evidence of mental deficiency in many 
cases” which could lead to inaccuracies.154  In contrast, 
courts do not express the same concerns about 
distinguishing variations in physical abilities.  Modern 
developments in mental diagnosis and functional 
neuroimaging are making this distinction increasingly 
difficult to sustain for mental disabilities.  Indeed, one value 
of using functional neuroimaging in conjunction with 
traditional psychiatric diagnosis may be to achieve more 
accurate diagnoses and treatments and greater 
predictability of behavioral abnormalities.155 

Finally, the Restatement has expressed strong concern 
that abrogating the bifurcated rule will lead to relief from 
liability for all mentally disabled adults as a matter of law, 
creating an inequity between physically and mentally 
disabled persons.  The Third Restatement articulates this 
rationale: 

 
[T]o recognize mental disability as a factor 
bearing on findings of negligence would be one-
sided in a way that recognizing physical 
disability is not. . . . [W]hen the disability is 
mental or emotional, the disability directly 
affects the person’s rationality and judgment; 
because of this, it frequently will be the case 

                                                      
153  RESTATEMENT (SECOND) OF TORTS § 283B cmt. b(1) (1965). 
154  Id. cmt. b(2). 
155  See ANDREASEN & BLACK, supra note 104, at 116. 



632 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 

that the law cannot expect the person wisely 
and appropriately to moderate conduct choices 
so as to take the person’s disability into 
account. Therefore, in mental-disability cases 
the law is often unable to implement the 
balanced approach that it applies to problems 
of physical disability.156 

 
It is inescapable that application of a subjective rule of duty 
to mentally disabled persons would result in non-liability 
more often than use of the same rule for physically disabled 
persons.  The Restatement correctly postulates that to the 
extent that a proven mental disability interferes with the 
person’s ability to make a reasoned choice to act, he or she 
would likely not be liable under a subjective rule.  This 
Article argues that accepting this result is preferable to the 
current practice of imposing a version of strict liability on 
mentally disabled adults by ignoring their mental 
conditions in negligence cases. 

Implicit in the Restatement’s comment is the concern 
that use of a subjective rule would lead to a doctrinal 
change—a lesser duty of care for mentally challenged 
persons that would evolve into an absolute defense upon the 
mere proof of the mental condition.  This feared doctrinal 
shift is not inevitable, however.  In the context of physical 
disabilities, the Third Restatement emphasizes that only 
“significant and objectively verifiable” conditions would 
warrant consideration in the duty analysis.  Minor 
conditions would not be taken into consideration.157 The 

                                                      
156 RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 

EMOTIONAL HARM § 11 cmt. e (2010). 
157  Comment a provides: 

The physical disabilities this Section takes into account 
generally need to be significant and objectively 
verifiable. For reasons relating to convenience of 
administration, it is not worthwhile to attempt to take 
into account disabilities that are minor or not 
susceptible to objective verification. Thus, a person’s 
claim of being born clumsy would not be regarded as 
relevant. 

Id. cmt. a. 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              633 
 

 
 

Restatement also emphasizes that “physical disability is 
neither a ‘justification’ nor an ‘excuse’ for what is otherwise 
negligent conduct,” but rather “an actor’s significant 
physical disability should be taken into account in 
determining whether the actor’s conduct lacks reasonable 
care.”158  These same qualifications could and should be 
applied to mental disabilities.  With neuroscientific 
evidence, greater accuracy of diagnosis and understanding 
of the behavioral implications of a mental condition would 
become available.  Accordingly, what is “significant and 
objectively verifiable” is a standard that could be met with 
appropriate evidence. 

Thus, the policies advanced in favor of the bifurcated 
rule do not fully hold up in the era of neuroscience.  
Reforming the bifurcated rule also requires an 
understanding of the limitations of the evidence—both how 
it can assist and what it cannot show.  The next Part 
addresses the challenges of using neuroscientific 
information as evidence in a tort action. 

 
IV. THE EVIDENTIARY CHALLENGES OF APPLYING 

NEUROSCIENCE TO TORT LAW 
 

Courts are in the process of expanding their 
understanding of the mental health and neuroscience 
evidence presented to them in all types of cases.  One 
indication of this transformation is that both subject areas 
have been included in the third edition of the Reference 
Manual on Scientific Evidence published by the Federal 
Judicial Center and the National Research Council of the 
National Academies.159  Still, common sense cautions 
against allowing the “wow factor” of neuroscience—a series 
of state-of-the-art technologies with the ability to dazzle 
courts and juries with colorful images and exciting 
information—to overtake the legal system.160  Undeniably, 
                                                      

158  Id. at cmt. b. 
159  See Appelbaum, supra note 112; Greely & Wagner, supra note 

107. 
160  See MICHAEL S. GAZZANIGA, WHO’S IN CHARGE:  FREE WILL AND 

THE SCIENCE OF THE BRAIN 190 (2011) (“Many neuroscientists worry 



634 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
developing an effective interface between the systems of law 
and science is not an easy task.  Nevertheless, it is not an 
impossible task if undertaken incrementally and for 
constructive reasons, not simply for the sake of seizing the 
next new idea.  If the law proceeds with caution, 
neuroscience—just as any other area of scientific or 
technological endeavor—offers great promise for resolving 
issues in tort law.161   

 
A. The Intersection of Law and Science 

  
The integration of science into legal doctrine has been 

slow to develop because of the seeming incongruity of the 
two disciplines.  Science is process based, while the law 
demands finality.  Incorporating neuroscientific 
developments into substantive tort law to explain human 
behavior necessarily requires an overlay of normative 
judgments on the ever-evolving background of scientific 
knowledge and theories.162  The U.S. Supreme Court has 
said that “it would be unreasonable to conclude that the 
subject of scientific testimony must be ‘known’ to a 
certainty; arguably, there are no certainties in science.”163  
Science in general, and the scientific method in particular, 
constitutes “‘a process for proposing and refining theoretical 
explanations about the world that are subject to further 

                                                                                                                           
that a scientist who walks into a courtroom, shows a series of brain 
scans, and says this is why the defendant shouldn’t be held responsible, 
is overly influential.”); Ford & Aggarwal, supra note 134, at 332. 

161  Professor Martha J. Farah has recently reviewed some of the 
critiques of the broad use of neuroscience, including those that argue 
that neuroscience evidence is “overly convincing” and “overly 
appealing.”  She concluded that “[n]one of the criticisms reviewed here 
constitute reasons to reject or even drastically curtail the use of 
neuroimaging.”  Farah, supra note 140, at S28; see also Morse, supra 
note 124, at 345 (“For now, however, the potential of undue influence of 
images does not seem sufficient to weigh strongly against 
admissibility.”). 

162  See generally Goodenough & Prehn, supra note 130, at 1710-13 
(discussing the philosophical and historical basis of normative thinking 
in the law). 

163  Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993). 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              635 
 

 
 

testing and refinement.’”164  Accordingly, scientific 
investigation is progressive, and scientific fact is not finite 
fact, even when consensus is reached.  In the words of the 
Supreme Court, “[s]cientific conclusions are subject to 
perpetual revision.”165  As tort law examines human 
behavior to determine which behaviors are outside the 
bounds of acceptable norms, thereby leading to tort liability, 
there is no current consensus about the precise relationship 
between the structure and function of the brain and 
normative choices.166  But that does not mean that the brain 
could not or should not enter the legal conversation. 

As previously stated, the law accepts the premise that a 
person’s choices of action are driven by multiple factors, 
some of which may be due to neural connections and others 
that are influenced by genes expressing themselves during a 
person’s lifetime or by the cumulative impact of an 
individual’s experiences.  Thus, mere diagnosis of a mental 
disorder will never be sufficient without biological, 
experiential, and circumstantial context.  Layered over 
these factors are legal norms.  Courts, and the experts 
offering evidence, will continue to have difficulty correlating 
functional imaging findings with actual functional 
impairment.  Information about a person’s brain may help 
to explain the person’s actions, but it does not answer the 
legal question of liability.167  That is the domain of tort law 
and its varied rules. 
 
B. Neuroethics and the Search for Truth in the Courtroom 

  
This Article has addressed the question whether the 

existing bifurcated tort rule should be changed.  Even 
                                                      

164 Id. (quoting the Brief for the American Association for the 
Advancement of Science et al. as Amici Curiae at 7–8). 

165  Id. at 597. 
166  See Goodenough & Prehn, supra note 130, at 1717;  Stephen J. 

Morse, Brain Overclaim Syndrome and Criminal Responsibility:  A 
Diagnostic Note, 3 OHIO ST. J. CRIM. L. 397, 405 (2006). 

167  See MICHAEL S. GAZZANIGA, THE ETHICAL BRAIN 89-90 (2005) 
(stating that “ultimately we must realize that even if the cause of an act 
(criminal or otherwise) is explainable in terms of brain function, this 
does not mean that the person who carries out the act is exculpable”). 



636 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
assuming that the brain will eventually be found to explain 
all human behavior, neuroethicists have stressed the need 
for legal institutions to use that information in an ethical 
way.168  If there is such a concept as neurological 
determinism, it does not follow that legal determinism or 
absolute legal rules would or should ensue.169  As 
neuroscience moves closer to explaining all human 
perception and behavior in biological terms, it is 
nevertheless unlikely that the law will relinquish notions of 
the “self” or the “mind”—in other words human reason and 
choice.170  Tort law is firmly wedded to the latter concepts. 

The ways in which neuroscience could be used and 
abused in the legal system are no different from the ways 
other types of technological and expert evidence may be 
used and misused.  Does this mean the legal system should 
place an absolute bar on neuroscience?  This is essentially a 
moot question because “the genie is already out of the 
bottle” due to the extensive exposure developments in 
neuroscience have received beyond the medical 
                                                      

168 Martha J. Farah, Neuroethics: The Practical and the 
Philosophical, 9 TRENDS IN COGNITIVE SCI. 34, 38-39 (2005), available at 
http://dx.doi.org/10.1016/j.tics.2004.12.001. 

169  See GAZZANIGA, supra note 167, at 101. 
170  See Morse, supra note 127, at 841.  Professor Morse observed: 

For the foreseeable future, . . . the law will be based on 
the folk-psychological model of the person and behavior . 
. . . Until and unless scientific discoveries convince us 
that our view of ourselves is radically wrong, the basic 
explanatory apparatus of folk psychology will remain 
central. It is vital that we not lose sight of this model 
lest we fall into confusion when various claims based on 
neuroscience are made. 

Id. Some commentators have stated that neuroscience is not 
incompatible with the notion of free will, but rather will lead to a 
different understanding of the relationship between the neuroscientific 
view of the brain and traditional notions of intuition and legal 
responsibility.  See, e.g., Adina Roskies, Neuroscientific Challenges to 
Free Will and Responsibility, 10 TRENDS IN COGNITIVE SCI. 419, 423 
(2006); cf. Read Montague, How is Neuroscience Likely to Impact Law 
in the Near Future?, in A JUDGE’S GUIDE TO NEUROSCIENCE: A CONCISE 
INTRODUCTION 60, 61 (Law and Neuroscience Project & SAGE Ctr. for 
the Study of the Mind eds., 2011) (stating that the gap between 
cognitive variables and fMRI data is “a crucially underdeveloped area of 
human neuroscience”). 

http://dx.doi.org/10.1016/j.tics.2004.12.001
http://dx.doi.org/10.1016/j.tics.2006.07.011


2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              637 
 

 
 

community.171  Professor Martha J. Farah has summed up 
society’s dilemma, stating that the influx of neuroscience 
information may forge “a more understanding and humane 
society, as people’s behavior is seen as part of the larger 
picture of causal forces surrounding them and acting 
through them.  But it could also reduce us to machines in 
each other’s eyes, mere clockwork devoid of moral agency 
and moral value.”172  Tort law already involves traditional 
ethical notions of responsibility and fairness,173 making tort 
law well-positioned to address the need for balance between 
the organic bases of human behavioral choices and the 
traditional notions of self and the mind.174 

 

                                                      
171  See Martha J. Farah, Neuroscience and Neuroethics in the 21st 

Century, in THE OXFORD HANDBOOK OF NEUROETHICS (Judy Illes & 
Barbara J. Sahakian eds., 2011) 761, 771 (stating that “[a]n across-the-
board moratorium on non-medical applications of neuroscience would be 
unfeasible given that the genie is already out of the bottle”). 

172 MARTHA J. FARAH, NEUROETHICS:  AN INTRODUCTION WITH 
READINGS 8 (2010). 

173  See generally id. at 7 (stating: “It remains to be seen how these 
developments [in neuroscience] will intersect with our strongly held 
beliefs about the value of privacy, freedom, fairness, and responsibility.  
One of the main tasks of neuroethics is to assess the likely impact of 
neuroscience on these and other moral and cultural ideals.”). 

174  The classic example of balancing notions of responsibility 
against potential adverse outcomes in negligence law was stated by 
Judge Learned Hand in United States v. Carroll Towing, 159 F.2d 169, 
173 (2d Cir. 1947), in which he set forth his famous balancing test for 
liability, which “depends upon whether B [the burden of taking 
precautions] is less than L [the injury] multiplied by P [the probability 
of L occurring]: i.e., whether B less than PL.”  Professor Morse has 
discussed the need for balance in relation to criminal law: 

In general, the hope is that over time there will be 
feedback between the folk-psychological criteria and the 
neuroscientific data.  Each might inform the other.  
Conceptual work on mental states might suggest new 
neuroscientific studies, for example, and the 
neuroscientific studies might help refine the folk-
psychological categories. The ultimate goal would be a 
reflective, conceptual-empirical equilibrium. 

Morse, supra note 127, at 857. 



638 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 

C. Is Neuroscience Ready for Tort Law?:  Moving from the 
Laboratory to the Courtroom 

  
The short answer to this question is that courts are not 

yet ready for a wholesale barrage of neuroimaging and other 
neuroscience evidence.  Numerous commentators, both 
scientists and legal analysts, have expressed this same 
view.175  This opinion is not just a function of the limitations 
of neuroscientific data interpretation, but reflects the 
realities of legal evidence in the courtroom.  American 
courts require that expert evidence, of whatever type, be 
both reliable and relevant to be admissible.  These 
requirements, regardless of the legal test that applies, are 
quite rigorous.  In the federal courts and other 
jurisdictions176 that follow the rule of Daubert v. Merrell 
Dow Pharmaceuticals, Inc.177 and its progeny,178 
technological evidence such as neuroscience must be held 
reliable under a flexible multi-factored test:  whether the 
technique has been tested, presumably through replication 
under the rubric of the scientific method; whether the study 
has been published or otherwise peer reviewed; the known 
rate of error of the technique; and whether the methodology 
has been generally accepted in its field.179  Although 

                                                      
175  See, e.g., Jones et al., supra note 106, ¶ 47; Stephen J. Morse, 

The Future of Neuroscientific Evidence, in THE FUTURE OF EVIDENCE 
137, 142 (Carol Henderson & Jules Epstein eds., 2011); Marcus Raichle, 
What is an fMRI?, in A JUDGE’S GUIDE TO NEUROSCIENCE: A CONCISE 
INTRODUCTION 5, 12 (Law and Neuroscience Project & SAGE Ctr. for the 
Study of the Mind eds., 2011). 

176  See, e.g., E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 
549 (Tex. 1995). 

177  509 U.S. 579 (1993). 
178 See Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (applying 

the Federal Rules of Evidence and Daubert to all types of expert 
evidence); Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) (explaining the 
relevancy arm of the Daubert test). 

179  The flexible Daubert rule has been codified in the Federal Rules 
of Evidence, which provide: 

A witness who is qualified as an expert by knowledge, skill, 
experience, training, or  education may testify in the form of an 
opinion or otherwise if: 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              639 
 

 
 

reliability is based on scientific knowledge, the U.S. 
Supreme Court has said that the subject of the expert’s 
testimony need not be known to a certainty.180  Other 
jurisdictions espouse the older Frye rule of reliability, 
requiring more rigidly that the technique must be generally 
accepted in the relevant field.181  Under either test, 
reliability is a stringent standard.182 

The expert evidence must also be legally relevant.  As 
the Federal Rules of Evidence set forth, even evidence 
otherwise deemed relevant may be excluded if “its probative 
value is substantially outweighed by a danger of . . . unfair 
prejudice, confusing the issues, [or] misleading the jury.”183  
The Supreme Court addressed relevance in the context of 
expert scientific evidence in General Electric Company v. 
Joiner,184 in which the Court stressed that the expert’s 
opinion must provide a close “fit” to the specific issues in the 
                                                                                                                           

(a) the expert’s scientific, technical, or other specialized knowledge 
will help the trier of  fact to understand the evidence or to determine 
a fact in issue; 

(b) the testimony is based on sufficient facts or data; 
(c) the testimony is the product of reliable principles and methods; 

and 
(d) the expert has reliably applied the principles and methods to the 

facts of the case. 
Fed. R. Evid. 702.  The advisory committee note adds several factors 

to this test, including, among other factors:  (1) whether the evidence 
was developed for the specific litigation for which it was offered; (2) 
whether too much of an analytical gap exists between the data and the 
expert’s conclusion; and (3) whether the expert considered other 
theories.  Fed. R. Evid. 702 advisory committee’s note. 

180  Daubert, 509 U.S at 590. 
181  See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).  

Some states continue to follow the Frye rule.  See, e.g., Slay v. Keller 
Indus., Inc., 823 So.2d 623 (Ala. 2001); People v. Leahy, 882 P.2d 321 
(Cal. 1994); Blackwell v. Wyeth, 971 A.2d 235 (Md. 2009); Goeb v. 
Tharaldson, 615 N.W.2d 800 (Minn. 2000). 

182 See Jean Macchiaroli Eggen, Clinical Medical Evidence of 
Causation in Toxic Tort Cases: Into the Crucible of Daubert, 38 HOUS. 
L. REV. 369, 375-88 (2001) (discussing Daubert and its progeny); Jean 
Macchiaroli Eggen, Toxic Torts, Causation, and Scientific Evidence 
After Daubert, 55 U. PITT. L. REV. 889, 909-31 (1994) (discussing Frye 
and Daubert). 

183  Fed. R. Evid. 403. 
184  522 U.S. 136 (1997). 



640 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
case.  Acknowledging that experts necessarily must 
extrapolate from data, the Court issued a warning that the 
expert evidence will be inadmissible if it “is connected to 
existing data only by the ipse dixit of the expert.”185  When 
the “analytical gap” between the data and the expert’s 
conclusions is too great, the evidence will not be allowed.186  
Thus, relevance is not met by merely offering reliable 
evidence that relates to an issue in the case.  The standard 
is much higher, requiring a direct nexus between the 
underlying data and the expert’s conclusion and then again 
between the conclusion and the narrow issue for which it is 
offered. 

Turning to mental disabilities in tort law, all expert 
neuroscience evidence offered in support of the positions of 
the parties to the lawsuit must satisfy the reliability and 
relevance standards, or it will not see the light of day in the 
courtroom.  These requirements are no different from those 
applied to any other expert evidence offered in support of an 
issue in a tort case.187  What exactly does the law expect 
from neuroscience?  This Article proposes that the law 
should expect nothing more from neuroscience than it 
expects in any case involving expert evidence.  To that 
extent, courts should be open to the introduction of 
neuroscience evidence.  That neuroscience is an emerging 
technology is no reason to view it as less promising and 
potentially informative than other types of newer 

                                                      
185  Id. at 146.  An expert may rely on studies generated by others if 

the studies are the type reasonably relied upon in the field.  Fed. R. 
Evid. 703. 

186  Joiner, 522 U.S. at 146.  In Joiner, the analytical gap was too 
great and the evidence had properly been excluded by the trial court.  
See id. at 145-46; see also O’Conner v. Commonwealth Edison Co., 13 
F.3d 1090, 1106–07 (7th Cir. 1994) (excluding expert testimony that 
radiation was the cause of the plaintiff’s cataracts because the opinion 
was merely subjective and did not have a sufficient scientific basis); 
Chikovsky v. Ortho Pharmaceutical Corp., 832 F. Supp. 341, 346 (S.D. 
Fla. 1993) (excluding expert testimony that  the mother’s use of an acne 
medication caused the plaintiff’s birth defects because the opinion relied 
on studies conducted on a drug similar, but not identical, to the drug 
involved in the case). 

187  Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-48 (1999) 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              641 
 

 
 

technologies, such as DNA analysis.188  Nevertheless, courts 
should be attuned to the substantive difference in what is 
actually known from neuroscience and what the parties 
merely hope neuroscience can show. 

From an evidentiary perspective neuroscience evidence 
will face some formidable challenges in individual cases 
regardless of the evidentiary standard applicable in the 
specific jurisdiction.189  Neuroscience evidence may be 
loosely categorized as generalized or specific.  Generalized 
evidence may be illustrated by hypothesizing a diagnosed 
mental condition, such as schizophrenia.190  A diagnosis of 
schizophrenia in the defendant may provide sufficient 
information to allow an expert to state that a correlation 
exists between diagnosed schizophrenics and the type of 
behavior in issue in the case.191  But this information, 
without more, does not provide a specific causal connection 
between the diagnosed mental condition and the behavior of 
the defendant at the time of the tortious act.  In addition to 
generalized evidence, the party must offer specific evidence, 
such as structural or functional neuroimaging studies 
                                                      

188  Cf. Daubert, 509 U.S. at 592 n.11 (stating that “well-established 
propositions are less likely to be challenged than those that are novel, 
and they are more handily defended”); Greely & Wagner, supra note 
107, at 787 (noting that neuroscience has not yet “undergone the kind of 
standardization seen, for example, in forensic DNA analysis”). 

189  See Hon. Jed S. Rakoff, Guilty vs. Guiltiness Responses: Science 
and the Law: Uncomfortable Bedfellows, 38 SETON HALL L. REV. 1379, 
1392 (2008). 

190  Generalized neuroscience evidence—or group data—is the kind 
of information that captured the attention of the U.S. Supreme Court in 
juvenile sentencing cases.  See, e.g. Alabama v. Miller, 132 S. Ct. 2455, 
2464-65 (2012). 

191  Professor Farah has suggested that where an observable organic 
phenomenon exists in a person’s brain, we are more likely to associate 
that phenomenon with behavior.  See Farah, supra note 168, at 38.  She 
pointed to the well-known case of Phineas Gage, the railway worker 
who suffered traumatic brain injury and experienced a personality 
change.  Professor Farah stated that “we are not inclined to blame 
Phineas Gage for his bad behavior” because of the apparent organic 
basis.  Id.  She noted that neuroscience is uncovering “the more subtle 
and gradual ways” that organic changes in the brain may influence 
behavior.  Id.  These will present the law with more difficult challenges. 

 



642 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
conducted on the party herself.  Even when such 
individualized studies indicate a clinical brain condition, the 
relationship between the condition and the behavior in 
question in the case will still require complex expert 
extrapolation.   

Moreover, tort cases typically focus intently on 
subjective and historical issues—what the parties 
understood at a particular moment in the past.  Because 
many of the studies using functional neuroimaging report 
the results by group averages, at best these studies provide 
generalized information about the group.  At least at the 
current stage of neuroscience technology and research, this 
evidence would result in too large an analytical gap for the 
evidence to be admissible without additional specific 
evidence.  Still, these averaged group studies could be a 
useful starting point for specific individuals or may provide 
more acceptable information in combination with a variety 
of other more individualized psychiatric or neurological 
evidence.  How the experts interpret the information and 
apply it to the issues of a particular tort case must then 
pass legal muster under the rules of evidence for reliability 
and relevance. 

To date, proponents of neuroimaging studies have had 
difficulty meeting evidentiary standards.192  Difficult 
evidentiary issues should not, by themselves, prohibit 
neuroscience from being used in the courtroom.  Courts 
have no rational basis for rejecting evidence of mental 
disabilities simply because the issues are complex or 
because the fact questions present administrative 
difficulties.  On the other hand, courts must subject 
neuroscience evidence to the same systematic scrutiny that 
applies to other expert evidence and should resist being 
lured by the excitement of what it promises.  The next Part 
                                                      

192  See, e.g., United States v. Semrau, No. 07-10074 MI/P, 2010 WL 
6845092 (W.D. Tenn. June 1, 2010).  In Semrau, the magistrate judge 
discussed at length fMRI evidence, proffered on the issue of veracity, in 
relation to the Daubert test, concluding that “[a]lthough [the expert] is 
qualified to offer an opinion, the court nevertheless concludes that his 
testimony should be excluded because, at least at this early stage in its 
development, fMRI based lie detection does not satisfy the requirements 
of Rule 702.”  Id. at *10. 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              643 
 

 
 

proposes a cautionary way to begin the discourse about 
envisioning a constructive role for neuroscience in the long-
overdue reformation of the bifurcated rule. 

 
V. A MODEST PROPOSAL WITH CAVEATS 

  
In an earlier article, Eric J. Laury and I proposed a 

broad process-based model for involving neuroscience in tort 
law.193  Our proposal served as a kind of prolegomena to a 
fuller process of integrating information obtained from 
neuroscience, and neuroimaging in particular, into tort 
doctrine.  It was based on the notion that a better 
understanding of the brain can help us to determine the 
validity of the premises on which tort doctrine is based.  The 
proposal was “sufficiently broad and flexible to 
accommodate both the rapidly evolving science and tort 
law’s resistance to change.”194  As the technologies grow in 
reliability and inform the issues frequently raised in tort 
cases, neuroscience may add a valuable dimension to tort 
issues and help to shape tort doctrine in the future.  This 
Article begins the process of applying that model. 

For the model to be effectively implemented, 
neuroscience must be introduced in tort cases incrementally 
on an issue-by-issue basis.  This task presupposes 
identifying a doctrinal issue that needs correcting, 
supplementing, or reforming.  The bifurcated negligence 
rule of physical and mental disabilities is just such an issue.  
Accordingly, this rule may provide an effective doctrinal 
“laboratory” for using the neuroscience to reform an aspect 
of tort law that is outmoded.  This issue is a logical and 
appropriate place to begin the analysis for several reasons.  
First, the essence of the bifurcated rule is disparate 
treatment of adults with mental disabilities, which directly 
implicates neuroscience.  Indeed, some techniques and 
theories related to the organic basis of mental conditions 
and symptomatology already have wide acceptance in the 
neuroscience and psychiatric communities and are regularly 

                                                      
193  See Eggen & Laury, supra note 9, at 284-86. 
194  Id. at 284. 



644 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
used in the courts.  Second, most of the policies asserted to 
justify the bifurcated rule no longer hold up in an era in 
which more detailed information is known about mental 
diagnoses and about brain structure and function.195  Third, 
the bifurcated rule has perennially been the subject of much 
criticism over the years, even before neuroscience began to 
make inroads into the law,196 and neuroscience can serve as 
the tipping point to finally abrogate the objective rule for 
mentally disabled adults. 

 
A. A Framework for Commencing the Discourse 

  
With these matters in mind, this Article proposes the 

following modest framework for employing neuroscience to 
reform the bifurcated rule in tort doctrine. 

 
1. The duty rule for adults with mental disabilities 

should be consistent with the rule for physical disabilities. 
 

The bifurcated rule should be replaced with a single 
subjective duty rule for adults with disabilities, whether 
physical or mental.  A single rule would not only establish a 
single duty standard for adults with disabilities in 
negligence actions.  It would also bring negligence law into 
agreement with intentional torts on matters related to 
mental disabilities and would be consistent with the 
negligence standard for children. 
 

2. The unified subjective rule should expressly recognize 
that many mental disabilities are organic in nature.   
 

The Third Restatement explicitly recognized that “many 
mental disabilities have organic causes,” but opted to retain 
the traditional bifurcated rule for policy reasons, including 
administrative convenience.197  Those mental disabilities 
without currently known organic causes will not necessarily 
                                                      

195  See supra notes 146-58 and accompanying text. 
196  See articles cited supra note 8. 
197 RESTATEMENT (THIRD) OF TORTS:  LIAB. FOR PHYSICAL AND 

EMOTIONAL HARM § 11 cmt. e (2010). 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              645 
 

 
 

be excluded from consideration in a negligence case under 
the unified subjective rule, though it may be more difficult 
for the party to establish the existence of the disability.  
Recognizing the organic basis of mental disabilities, courts 
would no longer be required to place certain mental 
conditions on one side or the other of an artificial line 
between physical and mental.  For example, old age 
dementia, whether resulting from a vascular condition, 
Alzheimer’s, or an unknown operation of the aging process 
on the brain would be considered a disability and treated 
the same. 

 
3. To be considered in determining liability, the mental 

disability must be “significant and objectively verifiable.”198    
 

This limitation would eliminate minor variations in 
temperament from being considered, and would require 
proof of the disability.  Structural and functional 
neuroimaging, if available, would be allowable, provided 
that the proof is independently admissible under the rules 
of evidence.  The requirement that the disability be 
“significant and objectively verifiable” is already the 
standard for physical disabilities.199  This proposal does not 
limit the rule to “organic disabilities” because of concern 
that such a rule would be underinclusive.  Some “significant 
and objectively verifiable” mental disabilities may not be 
detectable as organic changes in the brain or other bodily 
organs.  Thus, this proposal would not require neuroscience 
evidence as a prerequisite; rather, other types of psychiatric 
evidence and other clinical medical evidence may be 
sufficient in some cases. 

 
4. All expert evidence of mental disabilities, including all 

neuroscience evidence, will be subject to the applicable rules 
of evidence.   

 

                                                      
198  Id. § 11 cmt. a (2010) (discussing physical disabilities only). 
199  Id.  
 



646 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 

Neuroscience evidence should be treated the same as 
any other scientific, technological, or other expert evidence.  
It should not be held to a higher standard for admissibility, 
nor should it be held to a lesser standard because of its 
novelty.  Accordingly, any neuroscience evidence and other 
evidence offered to prove the mental disability and its 
causal relevance to the tort would be required to meet the 
applicable evidentiary standards in the jurisdiction, 
whether that standard conforms to Daubert, Frye, or a 
hybrid rule. 

 
5. There should be no new defense for persons with 

mental disabilities.   
 
In this Article, the concepts of intent in intentional torts 

and duty/breach in negligence law have been singled out as 
specific elements that could benefit from emerging 
information obtained from neuroscience.  This Article does 
not suggest that a legal defense should be created that 
would relieve a mentally disabled defendant of liability for 
his or her conduct in the same sense as the insanity defense 
operates in criminal law.  No new defense should be created 
where one did not exist for persons with physical 
disabilities.200 

 
6. Existing privileges and defenses that involve mental 

conditions should remain in effect.   
 
Thus, in an intentional tort action in which the 

defendant asserts the privilege of consent, a plaintiff 
asserting that he or she did not consent because of lack of 
capacity due to a mental disability would still be required to 
demonstrate both the existence of the incapacity and that 
the defendant knew of the incapacity.  In jurisdictions such 
as Wisconsin, where sudden mental incapacitation is 
recognized as a defense to a negligence claim according to 

                                                      
200  The Third Restatement states:  “Under this Section, physical 

disability is neither a ‘justification’ nor an ‘excuse’ for what is otherwise 
negligent conduct.”  Id. at cmt. b. 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              647 
 

 
 

the same rules as sudden physical incapacitation201—i.e. 
proof of the incapacitation along with lack of 
foreseeability—no change in the applicable rules would 
occur for this narrow set of circumstances. 
 

B. Some Caveats 
   

This Article has emphasized the need for caution in 
moving toward a beneficial amalgamation of neuroscience 
and tort law.  Neuroscience is not a talisman that provides 
an immediate answer to all human behavioral questions.  
And it will never, by itself, provide definitive answers to the 
normative questions inherent in tort law.  The proposal in 
this Article demonstrates that neuroscience has much to 
contribute to tort law, however, both in resolving individual 
cases and reforming an anachronistic tort doctrine to reflect 
contemporary knowledge and values.  Two broad caveats 
accompany this cautionary approach. 

 
1. Courts should be cognizant of the limitations of the 

technology.  
 

This Article has mentioned only a few of the technical 
limitations of neuroimaging that may impact tort law, and 
others exist.202  In general, and for the foreseeable future, 
neuroimaging is interpretive.203  It will continue to progress 
and improve in sophistication, accuracy, and interpretive 
consistency, and as it does so it will become more useful in 
tort cases.  Hardware, software, statistical programs, and 
the human factor—involving both the researchers and the 
subjects—will continue to create challenges to 

                                                      
201  Breunig v. Am. Family Ins. Co., 173 N.W.2d 619, 622 (Wis. 

1970). 
202  See supra notes 124-36 and accompanying text.  For a brief 

summary of many of these technical limitations from the perspective of 
a lawyer, see Morse, supra note 124, at 343-45. 

203  See Brown & Murphy, supra note 128, at 1162-63 (stating that 
“we are at present a considerable distance away from the precise 
mapping of complex mental state onto unique brain activation 
patterns”). 



648 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
understanding and using the data that are compiled.  
Determining what is “normal” or “abnormal” is a complex 
matter of interpretation of the data.204  Translating those 
data into a legal standard, such as “reasonableness” or 
“intent,” is even more difficult. 

 
2. Courts should take care to apply the same evidentiary 

scrutiny to neuroscientific evidence as to other expert 
evidence, no more and no less.   

 
As neuroscience moves into the courtroom, the transition 

will not be smooth.  For scientists, observations and 
conclusions depend solely on the validity of the 
methodology.205  In contrast, the law asks experts to 
extrapolate from their observations to answer normative 
questions generated by the law applicable to the particular 
case.  Instead of viewing this as a disconnect that is 
unresolvable, lawmakers and neuroscientists should come 
together for a closer understanding of what is scientifically 
known and unknown and the ways that science can inform 
the law.206  That process has already begun.  Should the law 
                                                      

204  See Grafton, supra note 6, at 57. 
205  See DAVID L. FAIGMAN ET AL., 1 MODERN SCIENTIFIC EVIDENCE:  

THE LAW AND SCIENCE OF EXPERT TESTIMONY § 4:2, at 137 (2005–2006).  
The scientists’ view may be stated as follows: 

To real scientists a finding of fact is only as good as the 
methods used to find it. Scientific method is the logic by 
which the observations are made.  Well designed 
methods permit observations that lead to valid, useful, 
informative answers to the questions that had been 
framed by the researcher. For scientists, the key word in 
the phrase “scientific method” is method.  
Methodology—the logic of research design, measures, 
and procedures—is the engine that generates knowledge 
that is scientific. 

Id.  Lawyers, by contrast, ask a different set of questions.  The fit 
between the product of scientific inquiry and the product of legal 
inquiry, particularly in the courtroom, is not a close or natural one.  
Rather, it is forced and artificial.  Yet the system must find a way to 
accommodate both approaches. 

206  Commentators have been quick to remind us that it was not all 
that long ago that phrenology—the study of the anatomical terrain of 
the human skull—was believed to provide answers to the sources of 



2015   WILL NEUROSCIENCE REFORM TORT DOCTRINE?              649 
 

 
 

remain stagnant while science progresses?  This 
epistemological question is intrinsic to any effort to use 
science to shape the law.  As the courts attempt to resolve 
this tension, many evidentiary challenges will arise.  Courts 
should be vigilant in applying admissibility standards, 
recognizing that there is no precise method for translating 
scientific knowledge into legal certainty or factual truth in 
the courtroom. 

 
VI. CONCLUSION 

 
Neuroscience has the potential to be a tsunami wave 

that will soon bear down upon the courts with copious 
amounts of data and no dearth of opinions about what the 
data mean.  Should tort law run from it or face it head-on?  
Neuroscience will only become more prevalent and more 
sophisticated, not less so.  The law should be prepared to 
address the relentless advance of new techniques, theories, 
and philosophical questions that neuroscience brings with 
it.  Although neuroscience may be considered an emerging 
field, tort law has much to gain from what neuroscience has 
to offer.  This is most true when considering the ways in 
which tort doctrine treats alleged adult tortfeasors who are 
mentally disabled.  In negligence law, the traditional 
bifurcated rule of duty—which refuses to consider the 
mental disabilities of adults in negligence actions but 
considers physical disabilities—has remained virtually 
unchanged for centuries and is based upon outmoded 
assumptions and negative stereotypes.  This rule is a logical 
place to begin a reasoned discourse about how new 
developments in neuroscience can play a role in reforming 
                                                                                                                           
human behavior.  See Stacey A. Tovino, Imaging Body Structure and 
Mapping Brain Function:  A Historical Approach, 33 AM. J.L. & MED. 
193, 195-207 (2007).  Some might argue that phrenology was a direct 
precursor to what we consider the new neuroscience.  See id. at 207 
(“Although phrenology ultimately failed as a science, it left behind a 
formalized concept of cerebral localization and the idea that science, 
perhaps a science not too different from the pseudoscience of 
phrenology, could be used to investigate the functions of different 
regions of the brain.” (footnote omitted)). 

 



650 INDIANA HEALTH LAW REVIEW  Vol. 12:2 
 
tort doctrine to meet the realities of the twenty-first 
century.   


	I.  INTRODUCTION
	II. THE BASICS OF MENTAL DISABILITIES IN TORT LAW
	A. Intentional Torts
	B. The Law of Negligence
	C. Judicial Exceptions to the Bifurcated Rule

	III. MENTAL DISABILITY IN TORT DOCTRINE:  IS THERE A ROLE FOR NEUROSCIENCE?
	A. A Very Brief Look at the Advantages and Weaknesses of Functional Neuroimaging
	B. Stigma and Stereotypes
	C. Is Tort Law Ready for Neuroscience?:  Revisiting the Policies of the Bifurcated Rule

	IV. THE EVIDENTIARY CHALLENGES OF APPLYING NEUROSCIENCE TO TORT LAW
	A. The Intersection of Law and Science
	B. Neuroethics and the Search for Truth in the Courtroom
	C. Is Neuroscience Ready for Tort Law?:  Moving from the Laboratory to the Courtroom

	V. A MODEST PROPOSAL WITH CAVEATS
	A. A Framework for Commencing the Discourse
	1. The duty rule for adults with mental disabilities should be consistent with the rule for physical disabilities.
	2. The unified subjective rule should expressly recognize that many mental disabilities are organic in nature.
	3. To be considered in determining liability, the mental disability must be “significant and objectively verifiable.”198F
	4. All expert evidence of mental disabilities, including all neuroscience evidence, will be subject to the applicable rules of evidence.
	5. There should be no new defense for persons with mental disabilities.
	6. Existing privileges and defenses that involve mental conditions should remain in effect.

	B. Some Caveats
	1. Courts should be cognizant of the limitations of the technology.
	2. Courts should take care to apply the same evidentiary scrutiny to neuroscientific evidence as to other expert evidence, no more and no less.


	VI. CONCLUSION