Download this articleEditors Note: We were contacted by Neal Feigenson to see if our readers had experiences with the practice issue described below. Please help out by commenting below the query!
In Janson v. J.D.O.R.A.P., Inc., a case tried in Connecticut in spring 2011, the plaintiff claimed to be suffering from tinnitus and other hearing impairments after a tire that a custom auto shop had sold him exploded as he was checking its bolts. The plaintiff’s trial lawyer, Antonio Ponvert III, and one of the plaintiff’s expert witnesses, an audiologist, presented to the jury a sound file that, the expert testified, corresponded to the tinnitus sounds that the plaintiff more-or-less continuously heard. The sound file was based on the data the audiologist had collected from his standard psychoacoustic testing of the plaintiff. Jurors took turns putting on headphones and listening to the sounds. The exhibit also went to the jury room, where some jurors chose to hear the sounds again. The jury awarded the plaintiff $1.5 million for permanent acoustic damage and suffering, including loss of hearing in one ear, loss of high-frequency hearing, and reduced sound tolerance, as well as tinnitus in both ears.
The audio exhibit in Janson is unusual because demonstratives are, of course, typically introduced to depict or explain something in the real world that can be objectively known, not something that occurs or occurred only in the party’s mind (the tinnitus in this as in most cases being entirely subjective). I am aware of at least one case in which a demonstrative was admitted to show a party’s subjective visual (mis)perception (see The Jury Expert 22(1) 46-53 (January, 2010)), but the computer animation in that case was admitted only as illustrative evidence and was based entirely on the witness’s recollection. The demonstrative in Janson was based on the audiologist’s scientific knowledge and data and was admitted as substantive evidence (after the Connecticut version of a Daubert hearing).
I am interested in learning if any readers know of any similar exhibits being offered or admitted in other tinnitus cases, or of any other attempts to create scientifically based, computer-generated simulations of other subjective experiences. I’d be grateful for any help you can provide.
To contact the query author directly contact Neal Feigenson at Quinnipiac University School of Law.
(Image courtesy flickr user royblumenthal)
I'll have to give it some thought, but it seems to me that this is just a subset of demonstrative evidence generally, which, provided a proper foundation is established (as appears to be the case here) and it is not unduly prejudicial, is routinely admitted into evidence.
Interesting note. As a scientist/clinician who specializes in tinnitus and has been asked to provide expert testimony on this topic I have produced simulations of individual's tinnitus that have been used in trials, arbitration, mediation and other interactions. When using simulations of tinnitus, there are some factors that should be considered:
1. This is an approximation of what the individual hears. It is not an exact reproduction. Realize that the individual is not hearing an external sound, but is experiencing a perception resulting from abnormal nerve firing patterns caused by damage, not dissimilar to phantom limb pain. Any acoustic facsimile will not exactly replicate the subject's experience. That being said, given the proper tools and experience very close approximations can be achieved.
2. The accuracy of the simulation is dependent on the flexibility of the sound generating equipment and the skill of the clinician or engineer doing the tinnitus matching with the patient and sound reproduction.
3. The perceived loudness of the simulation by listeners (e.g. jury members) is very unlikely to match that perceived by the individual with tinnitus. This is because loudness perceived by the listener will be dependent on their own hearing abilities at the frequency of the tinnitus (e.g. if they have hearing loss at that frequency of the tinnitus, the volume may underestimate what the tinnitus sufferer actually hears), room acoustics, speakers or headphones and other acoustical considerations.
The appropriate way to use these simulations is to inform the listeners (jury, judge, etc.) that this is a best approximation of what the individual hears and it is accurate in terms of the pitch and quality of the sound, but may be very different in terms of the volume of the sound.
Even with this disclaimer, this can be a very important tool in helping a judge, jury or panel understand more about what tinnitus is and how it could be affecting the individual's life.
William Hal Martin, Ph.D. Oregon Health & Science University Tinnitus Clinic, Portland, OR