50:3 Eggshell Minds and Invisible Injuries: Can Neuroscience Challenge Longstanding Treatment of Tort Injuries?

Abstract

Tort law has traditionally taken vastly different approaches to various types of injuries. It consistently favors physical injuries more than it does emotional injuries and invisible injuries—which this Comment defines as a hybrid of physical and emotional injuries. The reasons for this disparate treatment are valid ones. Emotional and invisible injuries are particularly difficult to prove. Moreover, because litigants have incentives to get higher damage awards, they can, and do, lie about their injuries and fake their pain. However, the mere fact that a person fails to provide physical evidence of pain does not mean that his pain is nonexistent.

What if there was a technology that could objectively measure a person’s pain levels? Advancements in neuroscience are moving closer to that possibility. Neuroscience is gaining huge traction in the law. Soon enough, courts will be faced with tort litigants seeking to introduce neuroimaging evidence as objective proof of pain that has traditionally been unverifiable. Focusing on emotional and invisible injuries, this Comment discusses whether neuroscience will undermine the current approach of distinguishing these injuries from physical ones.