Jumping from the Frye Plan into the State Farm Fire: An Analysis of Spinal Thermography as Scientific Test Evidence

Walter J. Finnegan; Dennis F. Koson

doi:10.1111/j.1748-720X.1985.tb00924.x

Jumping from the Frye Plan into the State Farm Fire: An Analysis of Spinal Thermography as Scientific Test Evidence

Published online by Cambridge University Press: 28 April 2021

Walter J. Finnegan and

Dennis F. Koson

Article contents

Extract
References

Get access

Rights & Permissions

Extract

“Pictures of Pain Pay Off,” proclaimed the title of a recent article in the legal literature. The thermographic picture, or thermogram, is raising the stakes in plaintiff back cases and gaining national attention in both the medical and legal communities. Doctors see it as a diagnostic tool; lawyers, as an objective means of documenting injuries.

Yet the diagnostic and demonstrative potentials of this modality are also arousing considerable controversy—of the kind that has attended the use in court of blood tests to determine paternity, intoxication tests, polygraphs tests, hypnosis, spectrographs, and neutron activation analysis. This article will examine the use and value of thermographic pictures as evidence of spinal conditions and nerve root compression.

Type: Article
Information: Law, Medicine and Healthcare , Volume 13 , Issue 5 , October 1985 , pp. 205 - 212

DOI: https://doi.org/10.1111/j.1748-720X.1985.tb00924.x [Opens in a new window]
Copyright: Copyright © American Society of Law, Medicine and Ethics 1985

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Granelli, J.S., Pictures of Pain Pay Off, National Law Journal 5(3):1 (Sept. 27, 1982).Google Scholar

Avais v. Kalensnikoff, 74 P. 2d 1043 (Cal. 1937).Google Scholar

State v. Childress, 274 P. 2d 333 (Ariz. 1954).Google Scholar

United States v. Ridling, 350 F. Supp. 90 (E.D. Mich. 1972).Google Scholar

Crum v. State, 433 So.2d 1384 (Fla. 1983).Google Scholar

Commonwealth v. Lykus, 327 N.E.2d 671 (Mass. 1975).Google Scholar

United States v. Stifel, 433 F.2d 431 (6th Cir. 1970).Google Scholar

Dorland's Illustrated Medical Dictionary, 25th ed. (W.B. Saunders Co., Philadelphia, 1974), at 1599.Google Scholar

Professional experience, and personal communication with neurologist Jake Green, M.D., of Jacksonville, Florida, August 1984.Google Scholar

Fay v. Mincey, 454 So.2d 587 (Fla. App. 2 Dist. 1984).Google Scholar

There is allegedly a good correlation between the results of liquid crystal and conventional thermography; see Diagnosis, infra note 15, at 282.Google Scholar

Procida v. McLaughlin, 479 A.2d 447, 449 (N.J. Super. 1984).Google Scholar

Unsolicited mailings to author from Thermographic Services. Inc., of Tarzana, Cal., and from Thermal Image Analysis, Inc., of Madison, Wis., regarding thermography workshops and materials packages.Google Scholar

Palma v. State Farm Fire & Casualty Co., No. 83–4113, slip op. at 14 (15th Fla. Cir. Ct., Aug. 15, 1984).Google Scholar

Pochaczevsky, R., The Value of Liquid Crystal Thermography in the Diagnosis of Spinal Root Compression Syndromes, Orthopedic Clinics of North America 14(1):271 (Jan. 1983) [hereinafter referred to as Diagnosis]; Pochaczevsky, R., et al., Liquid Crystal Thermography of the Spine and Extremities—Its Value in the Diagnosis of Spinal Root Syndromes, Journal of Neurosurgery 56(3):386 (March 1982); Wexler, , Lumbar, Thoracic and Cervical Thermography, Journal of Neurological and Orthopedic Surgery 1:37 (1979).Google Scholar

Raskin, M., Martinez-Lopez, M., Sheldon, J., Lumbar Thermography in Discogenic Disease, Radiology 119(1):149 (April 1976); pers. com. from Dr. Raskin.Google Scholar PubMed

Edeiken, J., et al., Thermography and Herniated Lumbar Discs, American Journal of Roentgenology 102(4): 790 (April 1968); on Dr. Edeiken's testimony, see Palma, supra note 14, at 6.Google Scholar

See Mahoney, L., McCulloch, J., Csima, A., Thermography as a Diagnostic Aid in Sciatica, submitted as Addendum I in Palma, supra note 14.Google Scholar

Diagnosis, supra note 15, at 280.Google Scholar

Sciatica is radiating leg pain produced by nerve root pressure secondary to a slipped disc or to bone spurs.Google Scholar

Diagnosis, supra note 15, at 286.Google Scholar

Mahoney, and McCulloch, , supra note 18, at 6.Google Scholar

These theories are summarized in Palma, supra note 14, at 15–16.Google Scholar

Rothman, R., Simeone, F., The Spine (W.B. Saunders Co., Philadelphia, 1975), at 36.Google Scholar

See Mahoney, , et al., Relation of Thermography to Back Pain, submitted as Addendum II in Palma, supra note 14.Google Scholar

Figures based on testimony in Palma (see supra, note 14), personal observation of witnesses in the Broward County Courthouse, Florida, and personal attendance at professional scientific meetings.Google Scholar

Mahoney, and McCulloch, , supra note 18.Google Scholar

Giannelli, P.C., The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half Century Later, Columbia Law Review 80(6):1197 (Oct. 1980) [hereinafter referred to as Giannelli]; Romero, L.M., The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence, New Mexico Law Review 6(2):187 (May 1976) [hereinafter referred to as Romero]; Moenssens, A.A., Admissibility of Scientific Evidence—An Alternative to the Frye Rule, William and Mary Law Review 25(4):545 (Summer 1984) [hereinafter referred to as Moenssens].CrossRef Google Scholar

Fla. Stat. §90.702 (1979); see also Fed. R. Evid. 702.Google Scholar

Fla. Stat. §90.704 (1979); see also Fed. R. Evid. 703.Google Scholar

Fla. Stat. §90.705(1) (1979); see also Fed. R. Evid. 705.Google Scholar

Fla. Stat. §90.705(2) (1979).Google Scholar

Fla. Stat. §90.403 (1979); see also Fed. R. Evid. 403.Google Scholar

498 F.2d 741, 744 (D.C. Cir. 1974).Google Scholar

Fla. Stat. §90.702 (1979). See also Fed. R. Evid. 702.Google Scholar

Reed v. State, 391 A.2d 364, 367 (Md. 1978).Google Scholar

Id. at 367–68.Google Scholar

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).Google Scholar

Giannelli, , supra note 28, at 1205.Google Scholar

Reed, supra note 36, at 368.Google Scholar

Frye, supra note 38, at 1014.Google Scholar

Id.Google Scholar

People v. Williams, 331 P. 2d 251, 254 (Cal. App. 1958).Google Scholar

Commentators have suggested several alternatives to the Frye test. Giannelli (supra note 28) proposes that “the admission of scientific evidence [sic] should be controlled by adjusting the burden of proof” (id. at 1247). Unfortunately, this would have the same detrimental effect on civil suits as the overly liberal relevancy approach. Moenssens (supra note 28, at 568–74) proposes a three-stage approach, highlighted by an eleven factor assessment in the third stage; the approach is marred by over-complexity. And Romero (supra note 28, at 211) proposes a three-tiered system, which may work for most procedures but is too simplistic to apply to techniques, such as thermography, that supposedly determine the truth.Google Scholar

Curran, W., Shapiro, E., Law, Medicine and Forensic Scienc, 3d ed. (Little, Brown, Boston, 1982), at 190.Google Scholar

Id. at 165.Google Scholar

Palma, supra note 14.Google Scholar

Kaminski v. State, 63 So.2d 339, 340 (Fla. 1953).Google Scholar

Coppolino v. State, 223 So.2d 68 (Fla. 1968).Google Scholar

Id. at 70.Google Scholar

Id.Google Scholar

Worley v. State, 263 So.2d 613 (Fla. 1972).Google Scholar

Id. at 614.Google Scholar

Rodriguez v. State, 327 So.2d 903 (Fla. 1976).Google Scholar

Jent v. State, 408 So.2d 1024, 1029 (Fla. 1982).Google Scholar

Stevens v. State, 419 So.2d 1058, 1063 (Fla. 1982).Google Scholar

Fay, supra note 10.Google Scholar

Brown v. State, 426 So.2d 76 (Fla. 1983).Google Scholar

Fay, supra note 10, at 594.Google Scholar

Boyce v. New Orleans Public Service, Inc., 442 So.2d 808 (La. App. 1983): Desbotel v. Avondale Shipyards, Inc., 413 So.2d 208 (La. App. 1982); Foreman v. State Farm Mutual Automobile Insurance, 416 So.2d 258 (La. App. 1982); Blanchard v. A-1 Bit and Tool Co., Inc., 406 So.2d 773 (La. App. 1981).Google Scholar

Florida statute §627.736(1) (1984) requires every motor vehicle insurance policy to provide personal injury protection to the named insured to a limit of $10,000 for necessary medical services.Google Scholar

Fla. Stat. §440.13(1)(c) (1984).Google Scholar

Fla. Stat. §627.736(1)(a) (1984).Google Scholar

Palma, supra note 14, at 9.Google Scholar

Id. at 27.Google Scholar

Id. at 7.Google Scholar

Id. at 12.Google Scholar

Id. at 13.Google Scholar

Id. at 5.Google Scholar

Id. at 6.Google Scholar

Id. at 7.Google Scholar

Id. at 12.Google Scholar

Id. at 25.Google Scholar