John Jerry Glas Deutsch, Kerrigan & Stiles, L.L.P. New Orleans, Louisiana

1. Irresistible Impulses & Disinhibition: Siren Songs In Civil Cases John Jerry Glas Deutsch, Kerrigan & Stiles, L.L.P. New Orleans, Louisiana

3. Traumatic Brain Injuries CENTERS FOR DISEASE CONTROL AND PREVENTION http://www.cdc.gov/traumaticbraininjury/statistics.html

5. Scrutiny After TBI

6. Range ReducedSelf-Control No Control Over Impulse (Irresistible Impulse) (Disinhibition)

7. Methodology Irresistible Not Resisted

8. Attack Methodology “The line between an irresistible impulse and an impulse not resisted is probably no sharper than between twilight and dusk.” U.S. v. Lyons, 731 F.2d 243, 248 (C.A. 5 (La) 1984), quoting American Psychiatric Association Statement On The Insanity Defense, 11 (1982) [APA Statement.

9. Types Of Impulses Irresistible (involuntary conduct) Not Resisted (voluntary conduct)

10. Accountability Not Culpable (involuntary conduct) Culpable (voluntary conduct)

11. Effect Of Injury Effect Of Injury ? Unable To Resist (involuntary conduct) Harder To Resist (voluntary conduct)

12. Zero-Sum Game Blame The Brain (involuntary conduct) Blame The Person (voluntary conduct)

13. Need For Supervision “... I can tell you that [plaintiff] is going to break those laws that will put him in some kind of facility within a very short time if he lived independently by himself. . . I don’t think it’s his cognitive skills that are the problem. I don’t think it’s his memory. . . I think it’s his impulsivity and his lack of self-control and his judgment that are damning him.” Deposition of Beth Salcedo, MA, SLP, CCC, 6/10/09, p. 132, line 18 et seq

14. Strategy Limit Area & Severity of Brain Injury

15. Rule Out Diffuse Axonal Injury

16. Limit Lobes Involved Frontal Lobe Parietal Lobe Occipital Lobe Temporal Lobe Cerebellum

17. Limit Functional Regions Of Lobes Involved Primary Motor Premotor Area Frontal Eye Fields Dorsolateral Prefrontal Cortex (& Others)

18. Frontal Subcortical Circuits Motor Oculomotor Dorsolateral Prefrontal Anterior Cingulated Orbitofrontal

19. Severity Of Injury Brain Herniation Midline Shift Mass Effect Edema Hematoma

20. Strategy Limit Area & Severity of Brain Injury Establish Retained Cognitive Skills

21. Frontal Lobe Functions Executive Cognitive Function Behavioral/Emotional Function Activation Regulation Meta-Cognitive Processes

22. Frontal Lobe Functions Memory Language Initiation Judgment Impulse Control Social & Sexual Behavior Motor Function Problem Solving

23. Strategy • Limit Area & Severity of Brain Injury • Establish Retained Cognitive Skills • Identify Mechanism & Underlying Disorder

24. Disorders Mania Bipolar Disorder Frontal Lobe Dementia Impulse Control Disorder Disinhibition Syndrome Organic Personality Disorder Post-Traumatic Stress Disorder

25. Irresistible Impulses “There may be an unseen ligament pressing on the mind, drawing it to consequences which it sees, but cannot avoid, and placing it under a coercion, which, while its results are clearly perceived, is incapable of resistance.” Commonwealth v. Mosler, 6 Pa. L.J. 90, 4 Pa. 264 (Pa. 1846)(per curiam)

26. Insanity Defense M’Naghten Test M’Naghten + Volition 17 3 Model Penal Code Product Mental Illness 14 1 Moral Incapacity Cognitive Incapacity 10 1 Clark v. Arizona, 548 U.S. 735, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006)

27. Model Penal Code Test "a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." American Law Institute Model Penal Code Test (1964)

28. Agenda • Limit Area & Severity of Brain Injury • Establish Retained Cognitive Skills • Identify Mechanism & Underlying Disorder • Establish Cognition

29. Establish Cognition What is plaintiff’s I.Q.?

30. Establish Cognition What is plaintiff’s I.Q.? Was plaintiff under influence of drugs, ETOH, meds?

31. Disinhibition

32. Establish Cognition What is plaintiff’s I.Q.? Was plaintiff under influence of drugs, ETOH, meds? Does plaintiff recall his behavior?

33. Wild Beast Test “a mad man . . . must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than a brute, or a wild beast, such a one is never the object of punishment." Wild Beasts Judge Tracy, Rex v. Arnold, 1724 Children

34. Establish Cognition What is plaintiff’s I.Q.? Was plaintiff under influence of drugs, ETOH, meds? Does plaintiff recall his behavior? Did plaintiff understand physical act & consequences?

35. Establish Cognition What is plaintiff’s I.Q.? Was plaintiff under influence of drugs, ETOH, meds? Does plaintiff recall his behavior? Did plaintiff understand physical act & consequences? Could plaintiff distinguish between right & wrong?

36. Right & Wrong Test “had sufficient understanding to distinguish good from evil, right from wrong.” Judge, Bellingham Case 1812

37. Establish Cognition What is plaintiff’s I.Q.? Was plaintiff under influence of drugs, ETOH, meds? Does plaintiff recall his behavior? Did plaintiff understand physical act & consequences? Could plaintiff distinguish between right & wrong? Did plaintiff know “nature and quality” of the act?

38. Establish Cognition What is plaintiff’s I.Q.? Was plaintiff under influence of drugs, ETOH, meds? Does plaintiff recall his behavior? Did plaintiff understand physical act & consequences? Could plaintiff distinguish between right & wrong? Did plaintiff know “nature and quality” of the act? Did plaintiff know behavior was illegal?

39. Establish Cognition What is plaintiff’s I.Q.? Was plaintiff under influence of drugs, ETOH, meds? Does plaintiff recall his behavior? Did plaintiff understand physical act & consequences? Could plaintiff distinguish between right & wrong? Did plaintiff know “nature and quality” of the act? Did plaintiff know behavior was illegal? Did plaintiff believe behavior was immoral?

40. Establish Cognition What is plaintiff’s I.Q.? Was plaintiff under influence of drugs, ETOH, meds? Does plaintiff recall his behavior? Did plaintiff understand physical act & consequences? Could plaintiff distinguish between right & wrong? Did plaintiff know “nature and quality” of the act? Did plaintiff know behavior was illegal? Did plaintiff believe behavior was immoral? Did plaintiff feel guilty?

41. Establish Cognition What is plaintiff’s I.Q.? Was plaintiff under influence of drugs, ETOH, meds? Does plaintiff recall his behavior? Did plaintiff understand physical act & consequences? Could plaintiff distinguish between right & wrong? Did plaintiff know “nature and quality” of the act? Did plaintiff know behavior was illegal? Did plaintiff believe behavior was immoral? Did plaintiff feel guilty? Did plaintiff plead guilty?

42. Agenda • Limit Area & Severity of Brain Injury • Establish Retained Cognitive Skills • Identify Mechanism & Underlying Disorder • Establish Cognition • Attack Volition

43. Attack Volition Did plaintiff physically lose control over extremities?

45. Attack Volition Did plaintiff physically lose control over extremities? Did plaintiff plan or organize before (premeditated)?

46. Attack Volition Did plaintiff physically lose control over extremities? Did plaintiff plan or organize before (premeditated)? Was behavior self-endangering or self-defeating?

47. Attack Volition Did plaintiff physically lose control over extremities? Did plaintiff plan or organize before (premeditated)? Was behavior self-endangering or self-defeating? Would plaintiff have waited if an officer was there?

48. Wife At Elbow Test Q. Dr. Thompson. . . in your opinion, if [the doctor’s wife] had walked into the garage. . . before [the doctor] had started to make preparations to commit suicide, do you think [the doctor] would have waited for her to leave before committing suicide? I think he’d likely would have waited for her to leave. And why is that, Doctor? Because I think he would not have wanted to commit suicide in front of her. A. Q. A. Deposition of Dr. Thompson, p. 28, line 19 et seq.

49. Attack Volition Did plaintiff physically lose control over extremities? Did plaintiff plan or organize before (premeditated)? Was behavior self-endangering or self-defeating? Would plaintiff have waited if an officer was there? Did plaintiff lose all ability to control behavior?

50. Ability To Control Q. People say that he does demonstrate the ability at times to remove himself from a situation that could escalate, calm down, and then return. . . I have observed that. . . That’s a social skill or a social pragmatic that he does possess? He posses it. He doesn’t always use it, but he possesses it. A. Q. A. Deposition of Beth Salcedo, SLP-CCC, 6/10/09, p. 167, lines 10-19