“I Lost IQ Points,” “The Sugar Babies Made Me Do It,” & “I’m Not Fully Baked”

A notorious problem in toxic torts cases is the plaintiff’s difficulty in establishing a causal link between tortious exposure to a toxin and the injuries they suffered. Particularly when the injury suffered is non-specific complaints about headache, cognitive deficits or other “invisible injuries,” all of which may be caused by a multitude of other factors, plaintiffs face a significant hurdle of proof. Advances in neuroscience and genetics may have a transformative effect on this problem of proof. Some toxins may have characteristic “fingerprint” patterns on the brain, which enable causal linkages between toxin exposure and injury. And certain genotypes may predispose individuals to be “eggshell plaintiffs” with respect to particular toxins.

By contrast, it’s hard to envision how either of the competing defenses in the second case today–My Brain Made Me Do It, and She Threw Herself At Me–will ever gain traction.

A prototypical third case raises the adolescent developing brain theory. Particularly with respect to sentencing, with increasing frequency defendants argue that they should be sentenced less harshly because their brains aren’t yet fully developed.

Toxic Torts and Brain Dysfunction: Overcoming the Causal Curse
Kodjovi v. Trustees of Columbia University in City of New York, 2011 WL 134967 (N.Y. A.D. 1 Dept. 2011)
This is a hallmark case of how neuroscience may transform toxic tort cases that otherwise would fail for failing to establish a causal link between exposure to a toxin and the plaintiff’s injuries. The plaintiff appeals from a dismissal of her claim that she suffered cognitive impairment from lead exposure. On appeal, the court found that the plaintiff’s claim should not have been dismissed because she had established her prima facie case through the introduction of testimony from experts who had used numerous well accepted neurological tests that reflected a loss of at least seven IQ points and an impairment of perceptual-motor abilities attributable to lead poisoning.

“She Threw Herself at a Brain Damaged 20-year-old Boy” Defense
People v. Deberry, 2011 WL 141122 (Cal. App. 4 Dist. 2011)
This case provides a colorful example of the types of brain-based claims that defendants are raising in criminal cases. The defendant was charged with and found guilty of lewd conduct with a minor under the age of 14. At trial, the defendant raised an unsuccessful brain-based excused defense by having his mother testify that when the defendant was born the umbilical cord had been wrapped around his neck, causing a lack of oxygen to his brain and frontal lobe damage. In closing arguments at trial, defendant did not deny that the events occurred but argued that the minor was “promiscuous” and “threw herself at a brain damaged 20-year-old boy.” On appeal, the defendant raises a procedural error and challenge to the sentence on appeal. The judgment was affirmed and case remanded to the trial court for resentencing (unrelated to the neurological defense).

Adolescent Developing Brain Theory and Sentencing
People v. Chappell, 2011 WL 105652 (Cal. App. 2 Dist. 2011)
The use of neurological evidence to justify lesser sentencing for juvenile offenders was popularized by the dropping of a footnote to the APA amicus brief on the adolescent developing brain theory in Roper v. Simmons (2005). In this case, a fourteen-year-old defendant was found guilty of first-degree murder under the theory of felony-murder with special circumstance and was sentenced to 50 years to life. On appeal, defendant claims (among other things) that his sentence constitutes cruel and unusual punishment because of his age. Defendant cited several Supreme Court opinions (including Roper) to the effect that juveniles should be treated differently than adults in sentencing, arguing that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” The court of appeals recognizes that “the sentence is very severe for a crime committed by one so young.” It nevertheless affirmed the judgment because the defendant’s age was taken into account already when he was given a sentence less than life without possibility of parole.