Court admits the findings of Neuropsychology Expert Witness with regard to injuries stemming from a rear-end collision for pointing out an intervening or alternative cause

Court admits the findings of Neuropsychology Expert Witness with regard to injuries stemming from a rear-end collision for pointing out an intervening or alternative cause

The Plaintiffs, Samuel and Allison Fetchero, filed a lawsuit against the Defendant, Amica Mutual Insurance Company, following a car accident.

The Plaintiffs had fully paid insurance premiums for underinsured motorist coverage from the defendant. The Defendant accepted the premiums and issued underinsured motorist (UIM) coverage to the Plaintiffs. On April 5, 2016, an underinsured driver, Al-Nasser negligently collided with Samuel Fetchero’s (“Sam”) car. 

Subsequently, on April 18, 2016, Al-Nasser admitted liability for the motor vehicle collision. As a consequence of the collision, Samuel Fetchero sustained multiple injuries, resulting in both special and general damages. Allison Fetchero suffered a loss of consortium with her husband and incurred other damages. The Plaintiffs resolved their third-party claims against Al-Nasser by accepting payment of her full automobile liability insurance policy limits from Liberty Mutual Insurance Company, amounting to $100,000.

Before accepting Liberty’s settlement payment, the Plaintiffs offered Amica, the Defendant, the opportunity to purchase the third-party tort claims against Al-Nasser, which Amica declined. On April 5, 2016, the Plaintiffs submitted a settlement demand letter to Amica, seeking the full UIM policy limits. However, on the same date, Amica, through its adjuster, offered only $25,000 to settle the claim, providing no explanation for withholding UIM benefits.

The Fetcheros’ retained Gary Stobbe, M.D., to evaluate and provide an expert opinion on the nature and extent of Sam’s injuries resulting from the car crash on April 5, 2016. Stobbe, after reviewing Sam’s medical records and conducting interviews with the Fetcheros, concluded, on a “more-probable-than-not basis, that Sam suffered from “mild traumatic brain injury (mTBI) with cognitive and behavioral complaints”, “post-concussion syndrome”, and ” adjustment disorder with mixed anxiety and depressed mood” all linked to the mentioned accident. Stobbe noted ongoing symptoms, including “superimposed adjustment disorder with anxiety and depressed mood,” attributing it to the April 5, 2016 injury, and likely contributing to his enduring cognitive and residual issues. Stobbe expressed difficulty in assigning a specific percentage of residual impact to each diagnosis due to the interconnected nature of the mTBI, concussion, and adjustment disorder resulting from the April 5, 2016 incident.

Stobbe expressed the opinion that the treatment administered to Sam through December 1, 2021, was reasonable and suitable in addressing the diagnosed conditions of mTBI, post-concussion syndrome, and adjustment disorder. Additionally, he recommended the consideration of additional psychological counseling, preferably with a rehabilitation psychologist, as a measure to enhance Sam’s ability to cope with his persistent residual complaints, although it was not anticipated to be curative.

Amica designated Dr. Brett Parmenter, Ph.D., ABPP as a rebuttal witness, who asserted the opinion that the April 5, 2016, accident did not result in any neuropsychological injuries for Sam. According to Parmenter, there was no evidence indicating that Sam suffered a concussion or traumatic brain injury of any severity. Additionally, Parmenter noted that Sam’s symptoms of anxiety increased following a subsequent motor vehicle accident on December 9, 2018.

The Plaintiffs, Samuel and Allison Fetchero, submitted a motion to exclude the testimony of Amica Mutual Insurance Company’s expert witness, Brett Parmenter.

Court admits the findings of Neuropsychology Expert Witnesses with regard to injuries stemming from a rear-end collision for pointing out an intervening or alternative cause

Neuropsychology Expert Witness

Brett A. Parmenter, Ph.D., ABPP holds a doctorate in Clinical Psychology from the University of Kansas and completed her internship at Yale University School of Medicine. Following this, she underwent a two-year fellowship in Clinical Neuropsychology at the University at Buffalo, State University of New York School of Medicine and Biomedical Sciences.

She has been board-certified in Clinical Neuropsychology by the American Board of Professional Psychology/American Board of Clinical Neuropsychology (ABPP/ABCN) since 2009. Parmenter serves on the board of directors for the American Academy of Clinical Neuropsychology (AACN) and its Foundation. Additionally, she holds the status of a Fellow in Division 40 (Clinical Neuropsychology) of the American Psychological Association.

Discussion by the Court

Expert disclosures were required to adhere to the court’s specified timeline and sequence, in line with Federal Rules of Civil Procedure 26(a)(D). Following an initial expert disclosure, the opposing party had the option to present a rebuttal expert, provided their report addressed the same subject matter and was intended solely to counter the initial report. Notably, the rebuttal expert wasn’t obligated to explicitly state the intention to contradict the opposing party’s expert testimony in their report. District courts held discretion to exclude improperly disclosed expert testimony as a sanction for discovery violations.

The Fetcheros had requested the Court to strike Parmenter as an expert witness due to her report not addressing the same fundamental subject matter as Stobbe’s. Their argument emphasized the differences in qualifications between Parmenter, a neuropsychologist, and Stobbe, a board-certified neurologist, citing specific statutes defining the scope of their respective medical fields. However, the Fetcheros failed to provide legal authority demonstrating that these qualifications alone could invalidate Amica’s assertion that Parmenter’s report aimed to contradict or rebut Stobbe’s.

The Court refrained from evaluating Parmenter’s qualifications under Rule 702 but instead focused on whether her report aligned with or adequately addressed the topics covered by Stobbe’s report. The Fetcheros’ acknowledgment of the distinction between challenging Parmenter’s qualifications under Daubert and FRE 702 and contesting whether her report tackled the same subject matter as Stobbe’s was noted in their reply brief. Consequently, the Court chose not to delve into Parmenter’s qualifications but rather concentrated on evaluating the substance of her report and its correlation to the content covered by Stobbe’s.

The Fetcheros had contended that Parmenter’s opinions in her report didn’t serve as a rebuttal to Stobbe’s testimony. They argued that Stobbe’s report didn’t mention Sam’s December 9, 2018, collision, thus considering Parmenter’s discussion of this subsequent accident as introducing new evidence. Additionally, they claimed that Stobbe hadn’t addressed whether Sam followed medical providers’ recommendations or agreed with other providers’ techniques and conclusions.

However, the Court acknowledged that Stobbe’s findings about the April 5, 2016, accident and Sam’s injuries were broad, which allowed Amica to take a broader approach with its rebuttal expert report. The Court noted the risk associated with waiting until the rebuttal deadline, stating that if the opposing party offered limited or no expert disclosures, there would be little or no content to rebut.

As a result, the Court decided not to exclude Parmenter’s responses regarding the December 9, 2018, accident, despite it not being mentioned in Stobbe’s report. Stobbe’s opinion that Sam’s injuries stemmed from the April 5, 2016, accident was countered by Parmenter’s views about an intervening or alternative cause. Furthermore, the Court opted not to exclude Parmenter’s opinion about whether Sam followed medical recommendations, emphasizing that this directly countered Stobbe’s conclusions on causation.

Even though Parmenter was unaware that Amica had labeled her as a rebuttal expert and couldn’t identify during her deposition which parts of Stobbe’s report her testimony was expected to rebut, the Court’s analysis remained unchanged. The Court highlighted that an expert wasn’t required to explicitly indicate in their opinions that they were countering the opposing party’s expert testimony.


The Court denied Plaintiffs Samuel and Allison Fetcheros’ motion to exclude the testimony of Defendant Amica Mutual Insurance Company’s expert witness, Brett Parmenter. The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution. The Court also denied the Fetcheros’ request for fees in bringing the motion.

Key Takeaways

This case demonstrates the wide latitude courts have to qualify rebuttal expert testimony under Rule 26, as long as it addresses the same subject matter and is intended to contradict the opposing party’s expert opinions. Even though Parmenter did not have identical qualifications to Stobbe and introduced additional topics like a subsequent accident, the Court found her testimony could still rebut his broader opinions about causation and injuries from the 2016 crash. This shows that rebuttal experts can potentially bring up related issues not specifically discussed by the initial expert if they believe those issues undermine the initial conclusions.

Additionally, this case highlights that rebuttal experts need not explicitly state in their report that they are rebutting a specific opposing expert’s opinions. As long as the content functionally contradicts the opposing expert’s testimony, it can qualify as rebuttal.