In a new journal article in the Indiana Law Review, Widener Law Professor Jean M. Eggen examines the role of mental disabilities in traditional tort law, and how it may be reformed through the use of neuroscientific evidence.
Traditionally, the question of whether a person should be held liable in a tort case, such as a personal injury or a nuisance lawsuit, rests on an objective standard: i.e. whether the person acted as a reasonable person would under same or similar circumstances.
In making this analysis, courts have traditionally allowed parties to admit evidence relating to a person’s physical disabilities and age. However, evidence of a person’s mental disabilities is normally barred, due to its inherent unreliability and out of concern that people can fake mental illness.
As Eggen sees it, these concerns could largely be remedied by the introduction of neuroscience into the courtroom. While the criminal justice system has embraced this type of evidence in a variety of contexts, the civil system has remained reluctant.
“Neuroscientific evidence of mental conditions could be a big step toward correcting inaccurate assumptions and stereotypes about mental illness,” Eggen writes. “The existing legal decisions are replete with archaic and negative terminology about mentally challenged parties. 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.”
In the article, Eggen advocates an incremental approach to bringing neuroscience into the tort system. As a starting point, she argues that the civil system should treat mental disabilities as equivalent to physical disabilities, in regard to recognizing the duty that people have to others in assessing liability.
Next, the law should recognize that many mental illnesses are organic in nature, such as dementia or Alzheimer’s. In addition, courts should only allow evidence of mental disabilities that is “significant and objectively verifiable,” and ensure this evidence is limited by the Federal Rules of Evidence. Eggen does not advocate for a defense of mental disability, like that of insanity, but rather the inclusion of mental disability as a factor in the analysis.
Finally, Eggen argues that courts should continue to recognize some of the limited exceptions to the broad exclusion of evidence of mental disabilities that have been created, such as that for “sudden incapacitation,” which has been recognized by the Court of Wisconsin.
“In negligence law, the the traditional bifurcated rule of duty – which ignores 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,” Eggen writes. “This rule is a logical place to begin a reasoned discourse about how the new neuroscience can play a role in reforming tort doctrine to meet the realities of the 21st century.”