Pain detection and the privacy of subjective experience

American Journal of Law and Medicine

Volumn 33, Issue 2-3, 2007, Pages 433-456

  Kolber, Adam J ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS; DIFFUSION TENSOR IMAGING; DISEASE SEVERITY; FACIAL EXPRESSION; HUMAN; INTROSPECTION; MALINGERING; MEDICAL RESEARCH; MEDICAL SOCIETY; NEUROIMAGING; PAIN; PAIN ASSESSMENT; PRIVACY; REVIEW; SEXUAL AROUSAL;

EID: 34548834999     PISSN: 00988588     EISSN: None     Source Type: Journal    
DOI: 10.1177/009885880703300212     Document Type: Review

References (190)

1. Howard Spiro tells this joke in Howard Spiro, Clinical Reflections on the Placebo Phenomenon, in THE PLACEBO EFFECT: AN INTERDISCIPLINARY EXPLORATION 37, 46 (Anne Harrington ed., 1997).
2. See, e.g., Robert C. Coghill et al., Pain Intensity Processing Within the Human Brain: A Bilateral, Distributed Mechanism, 82 J. NEUROPHYSIOLOGY 1934 (1999) [hereinafter Coghill, Intensity Processing];
3. E.A. Moulton et al., Regional Intensive and Temporal Patterns of Functional MRI Activation Distinguishing Noxious and Innocuous Contact Heat, 93 J. NEUROPHYSIOLOGY 2183 (2005);
4. R. Peyron, B. Laurent & L. Garcia-Larrea, Functional Imaging of Brain Responses to Pain: A Review and Meta-Analysis, 30 NEUROPHYSIOLOGY CLINICS 263 (2000);
5. Carlo A. Porro, Functional Imaging and Pain: Behavior, Perception, and Modulation, 9 NEUROSCIENTIST 354, 357 (2003);
6. Carlo A. Porro et al., Temporal and Intensity Coding of Pain in Human Cortex, 80 J. NEUROPHYSIOLOGY 3312 (1998).
7. Among the areas of activation in the brain's cortex are the primary somatosensory cortex, anterior cingulate cortex, and prefrontal cortex. See, e.g., Robert C. Coghill, John G. McHaffie & Ye-Fen Yen, Neural Correlates of Interindividual Differences in the Subjective Experience of Pain, 100 PROC. NAT'L ACAD. SCI. 8538 (2003) [hereinafter Coghill, Interindividual Differences];
8. Pierre Rainville et al., Pain Affect Encoded in Human Anterior Cingulate But Not Somatosensory Cortex, 277 SCIENCE 968, 969 (1997) (using PET scans to support "previous findings of significant pain-related activations" in the primary and secondary somatosensory cortices, the rostral insula, and the anterior cingulate cortex).
9. See Coghill, Intensity Processing, supra note 2, at 1936 ("Multiple regression analysis of the functional imaging data revealed that a number of cerebral cortical and subcortical areas exhibited significant, graded changes in activation linearly related to subjects' perceptions of pain intensity."); Porro, supra note 2, at 357 ("Pain intensity-dependent activations are found in cortical regions pertaining to the 'lateral' . . . and 'medial' . . . pain systems . . . in the insular cortex and supplementary motor area."); see also Rainville et al., supra note 3 (finding that subjects given hypnotic suggestion of increased painfulness from a heat stimulus felt more pain and had greater regional cerebral blood flow in the anterior cingulate cortex than they did without the hypnotic suggestion); Porro, supra note 2, at 358 ("Recent event-related fMRI studies also reveal cortical foci with graded responses to the intensity of heat stimuli, activated during both perceived warmth and pain.") (citations omitted).
10. Alan J. Cunnien, Psychiatric and Medical Syndromes Associated with Deception, in CLINICAL ASSESSMENT OF MALINGERING AND DECEPTION 23, 41 (Richard Rogers ed., 2d ed. 1997). While it is difficult to estimate how often malingering occurs, neuropsychologists who make malingering evaluations report finding probable malingering in about 34% of chronic pain cases in which they are asked to make determinations.
11. Wiley Mittenberg et al., Base Rates of Malingering and Symptom Exaggeration, 24 J. CLINICAL AND EXPERIMENTAL NEUROPSYCHOLOGY 1094, 1096 (2002) (based on adjusted data). Another study examined a group of patients receiving disability benefits for chronic pain who were referred for psychological testing because their doctors believed that their pain was largely psychological in origin. Evidence of malingering was found in over 40% of these patients.
12. Roger O. Gervais et al., Effects of Coaching on Symptom Validity Testing in Chronic Pain Patients Presenting for Disability Assessments, 2 J. FORENSIC NEUROPSYCHOLOGY 13-14 (2001).
13. See W. KIP VISCUSI, REFORMING PRODUCTS LIABILITY 102-04 (1991);
14. Steven P. Croley & John D. Hanson, The Non-Pecuniary Costs of Accidents: Pain and Suffering Damages in Tort Law, 108 HARV. L. REV. 1785, 1789 (1995);
15. Edward J. McCaffery, Daniel J. Kahneman & Matthew L. Spitzer, Framing the Jury: Cognitive Perspectives on Pain and Suffering Awards, 81 VA. L. REV. 1341, 1347 (stating that pain and suffering awards "account[] for perhaps one-half of the total tort damages paid out in the important cases of products liability and medical malpractice").
16. But see Neil Vidmar, Empirical Evidence on the Deep Pockets Hypothesis: Jury Awards for Pain and Suffering in Medical Malpractice Cases, 43 DUKE L.J. 217, 235 n.84 (1993) (questioning the availability of accurate data on this issue).
17. See Steven I. Friedland, Law, Science, and Malingering, 30 ARIZ. ST. L.J. 337, 339 (1998).
18. See, e.g., Charles N. W. Keckler, Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 HASTINGS L.J. 509 (2006);
19. Sean Kevin Thompson, Note, The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation, 90 CORNELL L. REV. 1601 (2005);
20. Paul Root Wolpe, Kenneth R. Foster & Daniel D. Langleben, Emerging Neurotechnologies for Lie-Detection: Promises and Perils, 5 AM. J. BIOETHICS 39, 39 (2005).
21. See, e.g., Patricia S. Churchland, Moral Decision-Making and the Brain, in NEUROETHICS: DEFINING THE ISSUES IN THEORY, PRACTICE, AND POLICY 1, 3 (Judy Illes ed., 2006);
22. Stephen J. Morse, Moral and Legal Responsibility and the New Neuroscience, in NEUROETHICS: DEFINING THE ISSUES IN THEORY, PRACTICE, AND POLICY 33, 33 (Judy Illes ed., 2006) [hereinafter NEUROETHICS];
23. Joshua Greene & Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, 359 PHIL. TRANSACTIONS ROYAL SOC'Y LONDON B 1775 (2004);
24. Richard E. Redding, The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century, 56 AM. U. L. REV. 51 (2006);
25. LAURENCE TANCREDI, HARDWIRED BEHAVIOR: WHAT NEUROSCIENCE REVEALS ABOUT MORALITY (2005);
26. MICHAEL S. GAZZANIGA, THE ETHICAL BRAIN (2005).
27. See Henry T. Greely, The Social Effects of Advances in Neuroscience: Legal Problems, Legal Perspectives, in NEUROETHICS, supra note 9, at 245, 246-48;
28. Jennifer Kulynych, Note, Psychiatric Neuroimaging Evidence: A High-Tech Crystal Ball?, 49 STAN. L. REV. 1249 (1997).
29. See generally Judy Illes, Eric Racine & Matthew P. Kirschen, A Picture is Worth 1000 Words, But Which 1000?, in NEUROETHICS, supra note 9, at 149.
30. See Hank Greely, Prediction, Litigation, Privacy, and Property: Some Possible Legal and Social Implications of Advances in Neuroscience, in NEUROSCIENCE AND THE LAW: BRAIN, MIND, AND THE SCALES OF JUSTICE 114, 141-42 (Brent Garland ed., 2004) (mentioning the possibility of using neuroimaging to detect and assess pain);
31. see also Charles N. W. Keckler, Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 HASTINGS L.J. 509, 544 (2006) (noting that neuroimaging techniques that reveal deception might inform assessments of malingered pain).
32. See Lisa F. Barrett & Tor D. Wager, The Structure of Emotion: Evidence from Neuroimaging Studies, 15 CURRENT DIRECTIONS PSYCHOL. SCI. 79, 79 (2006);
33. see also K. Luan Phan et al., Functional Neuroimaging Studies of Human Emotions, 9 CNS SPECTRUMS 258, 264 (2004).
34. Stacey Tovino grapples with a wide-variety of privacy issues raised by neuroimaging in Stacey A. Tovino, The Confidentiality and Privacy Implications of Functional Magnetic Resonance Imaging, 33 J.L. MED. & ETHICS 844 (2005).
35. M.R. BENNETT & P.M.S. HACKER, PHILOSOPHICAL FOUNDATIONS OF NEUROSCIENCE 84 (2003).
36. Id. at 85.
37. International Association for the Study of Pain, http://www.iasp-pain.org (follow "Resources" hyperlink at top of page; then follow "Pain Definitions" hyperlink; then follow "Pain" hyperlink).
38. Rainville et al., supra note 3, at 968.
39. PATRICK WALL, PAIN: THE SCIENCE OF SUFFERING 12 (2000) (describing sample terms used by psychologist Ronald Melzack to characterize the sensory components of pain).
40. Cf. Colin Allen et al., Deciphering Animal Pain, in PAIN: NEW ESSAYS ON ITS NATURE AND THE METHODOLOGY OF ITS STUDY 351, 351 (Murat Aydede ed., 2005) (describing nociception as "the basic capacity for sensing noxious stimuli");
41. Robert C. Coghill, Pain: Making the Private Experience Public, in PAIN: NEW ESSAYS ON ITS NATURE AND THE METHODOLOGY OF ITS STUDY 299, 300 (Murat Aydede ed., 2005) (hereinafter PAIN: NEW ESSAYS) (describing nociception as the "reduced physical (i.e., neural) mechanisms responding to and encoding information about actual or impending tissue damage").
42. Rainville et al., supra note 3, at 968.
43. WALL, supra note 19, at 12 (describing sample terms used to characterize affective components of pain).
44. See FLOYD E. BLOOM ET AL., THE DANA GUIDE TO BRAIN HEALTH 169 (2006) ("Measuring the level of sensory intensity is associated with activity in the primary somatosensory cortex, whereas the unpleasantness is associated with activity in areas of the frontal lobe cortex usually associated with emotion . . . ."); see also Rainville et al., supra note 3, at 970 (using functional neuroimaging to support "at least a partial segregation of function between pain affect and sensation").
45. Rainville et al., supra note 3, at 968. See also Murat Aydede, A Critical and Quasi-Historical Essay on Theories of Pain, in PAIN: NEW ESSAYS, supra note 20, at 31-32; BLOOM ET AL., supra note 23, at 169.
46. Aydede, supra note 24, at 32.
47. Michael Hopkin, The Mutation That Takes Away Pain, NEWS@NATURE.COM, Dec. 13, 2006, http://www.nature. com/news/2006/061211/full/061211-11.html.
48. Id. Researchers have recently found a very rare genetic mutation that causes the condition. Id. Assuming that everyone who has the mutation has the pain-free condition, then the presence of the mutation provides good evidence that an afflicted person is not experiencing physical pain. If so, this would be a very reliable, though rarely ever practical method, of detecting malingered pain.
49. Eric Eich et al., Questions Concerning Pain, in WELL-BEING: THE FOUNDATIONS OF HEDONIC PSYCHOLOGY 155, 160 (Daniel Kahneman et al., eds., 1999) (citations omitted).
50. Id.
51. Chris J. Main, The Nature of Chronic Pain, in MALINGERING AND ILLNESS DECEPTION 171, 172 (Peter W. Halligan, Christopher Bass & David A. Oakley eds., 2003).
52. E-mail from Robert C. Coghill, Assistant Professor, Department of Neurobiology and Anatomy, Wake Forest University School of Medicine, to Adam Kolber, Associate Professor of Law, University of San Diego (Nov. 17, 2006, 10:36:33 EST) (on file with author).
53. WALL, supra note 19, at 63.
54. See Ellen Smith Pryor, Compensation and the Ineradicable Problems of Pain, 59 GEO. WASH. L. REV. 239, 253-57 (1991).
55. See id.
56. See George Mendelson, Outcome-Related Compensation: In Search of a New Paradigm, in MALINGERING AND ILLNESS DECEPTION, supra note 30, at 220, 222.
57. Pryor, supra note 33, at 280-91.
58. Aydede, supra note 24, at 3 (describing, though not advocating, the Cartesian view of pains and other bodily sensations).
59. Id. at 4.
60. BENNETT & HACKER, supra note 15, at 83.
61. Aydede, supra note 24, at 4.
62. See generally DANIEL C. DENNETT, BRAINSTORMS: PHILOSOPHICAL ESSAYS ON MIND AND PSYCHOLOGY 190-229 (1981);
63. Ned Block, On a Confusion About a Function of Consciousness, 18 BEHAV. & BRAIN SCI. 227, 230-36 (1995).
64. Coghill, supra note 20, at 302-03.
65. See, e.g., C.V. Bellieni et al., Analgesic Effect of Watching TV During Venipuncture, 91 ARCHIVES DISEASE CHILDHOOD 1015 (2006) (reporting that children distracted by television during venipuncture suffered less pain than those who were not distracted).
66. See generally Spiro, supra note 1, at 42 (noting that expectations of improvement can contribute to placebo effects). Neuroimaging studies have improved our understanding of placebo pain relief, demonstrating that the brain responds in similar ways to placebo pain relievers as it does to standard opiod drugs. The research provides fresh support for the view that placebos can generate substantial pain relief that is much like the pain relief from conventional analgesics. See, e.g., Ginger A. Hoffman et al., Pain and the Placebo: What We Have Learned, 48 PERSP. BIOLOGY & MED. 248, 260-62 (2005) (describing the recent neuroscience literature on placebo pain relief);
67. Tor D. Wager, The Neural Bases of Placebo Effects in Anticipation and Pain, 3 SEMINARS PAIN MED. 22 (2005);
68. Tor D. Wager et al., Placebo-Induced Changes in fMRI in the Anticipation and Experience of Pain, 303 SCIENCE (2004). Neuroimaging has also supported the view that patients with fibromyalgia, a chronic pain condition, have higher than normal pain sensitivity due to "augmented central nervous system processing of pain."
69. Richard E. Harris & Daniel J. Clauw, How Do We Know That the Pain in Fibromyalgia is "Real"?, 10 CURRENT PAIN & HEADACHE REP. 403, 406 (2006).
70. See, e.g., Donald A. Redelmeier, Joel Katz & Daniel Kahneman, Memories of Colonoscopy: a Randomized Trial, 104 Pain 187, 189-92 (2003).
71. Id.
72. Id. at 187-88.
73. Id. at 188-89.
74. Id. at 189-93.
75. Id. at 189.
76. See Eich et al., supra note 28, at 162-63.
77. See id. at 160 ("The primary forms of pain measurement used by clinicians with humans experiencing pain have been verbal pain descriptors, visual analog scales, numerical rating scales, and measurement of pain behaviors."). The McGill Pain Questionnaire is an example of a standardized test that attempts to measure subjective pain experience using numerical scales and standardized verbal descriptors. See Center for Gerontology and Health Care Research, Brown Medical School, Toolkit of Instruments to Measure End-of-Life Care, http://www.chcr.brown.edu/pcoc/Physical.htm (last visited May 9, 2007).
78. Even such intraindividual determinations are far from perfect. They require people to recall past experiences of pain, recent as they may be, and compare them to current ones. Yet, as noted, our memories of past experiences are quite imperfect. Eich et al., supra note 28, at 163-64. Furthermore, the very act of describing an experience may affect the way that we later recall it. See DANIEL GILBERT, STUMBLING ON HAPPINESS 40-42 (2006).
79. Jennifer S. Labus, Francis J. Keefe & Mark P. Jensen, Self-Reports of Pain Intensity and Direct Observations of Pain Behavior: When are they Correlated?, 102 PAIN 109, 119-21 (2003).
80. See J. Lander et al., Comparison of Ring Block, Dorsal Penile Nerve Block, and Topical Anesthesia for Neonatal Circumcision: a Randomized Controlled Trial, 278 JAMA 2157 (1997);
81. N. Wellington & MJ Rieder, Attitudes and Practices Regarding Analgesia for Newborn Circumcision, 92 PEDIATRICS 541, 541 (1993).
82. Adam Kolber, Note, Standing Upright: The Moral and Legal Standing of Humans and Other Apes, 54 STAN. L. REV. 163, 182-91 (2001). Answers to such questions may not alone settle matters about animal cruelty and consumption, but depending on one's underlying views, they may well inform the debate. For example, in challenging the lack of protection we give to the interests of animals, Peter Singer forcefully argues that most animals can indeed feel pain. "Nearly all the external signs that lead us to infer pain in other humans can be seen in other species . . . ," including "writhing, facial contortions, moaning, yelping or other forms of calling, attempts to avoid the source of pain, appearance of fear at the prospect of its repetition, and so on."
83. PETER SINGER, ANIMAL LIBERATION 11 (2d ed. 1990).
84. Capelouto v. Kaiser Found. Hosp., 500 P.2d 880, 883 (Cal. 1972).
85. See, e.g., GUIDO CALABRESI, THE COSTS OF ACCIDENTS 26-31 (1970) ("Apart from the requirements of justice, I take it as axiomatic that the principal function of accident law is to reduce the sum of the costs of accidents and the costs of avoiding accidents.").
86. See, e.g., George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537, 543-50 (1972) (outlining features of corrective justice).
87. Research in the late 1970s found that over three-quarters of those with compensable worker's compensation claims associated with low back pain had no physical findings supporting their complaints. John D. Loeser, Low Back Pain, in PAIN 363-77 (John J. Bonica ed. 1980). Despite improvements in our ability to detect physical injuries, it often still difficult to identify the cause of someone's back pain.
88. See Gina Kolata, With Costs Rising, Treating Back Pain Often Seems Futile, N.Y. TIMES, Feb. 9, 2004, available at http://query.nytimes.com/gst/fullpage.html?sec=health&res= 9A04EFDF173AF93AA35751C0 A9629C8B63 (quoting Dr. Richard Deyo, a professor of medicine and health services at the University of Washington as stating that "[a] variety of studies have suggested that in 85 percent of cases it is impossible to say why a person's back hurts.").
89. AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 739 (4th ed. text rev. 2000) [hereinafter DSM-IV-TR].
90. Id. at 513.
91. Id.
92. See Michael Finch, Law and the Problem of Pain, 74 U. CIN. L. REV. 285, 303-06 (2005).
93. DSM-IV-TR, supra note 61, at 485.
94. Id. at 485, 498-503.
95. See generally Cornelius Peck, Compensation for Pain: A Reappraisal in Light of New Medical Evidence, 72 MICH. L. REV. 1355, 1379, 1386-96 (1974) (suggesting that, in some circumstances, tortfeasors ought not be liable for pain exacerbated by psychological features of the defendant, even when the tortfeasor is a cause-in-fact of the pain).
96. See generally CLINICAL ASSESSMENT OF MALINGERING AND DECEPTION (Richard Rogers ed., 1997); Friedland, supra note 7, at 340.
97. Gordon Waddell et al., Nonorganic Physical Signs in Low Back Pain, 5 Spine 117, 117-25 (1980).
98. Id. at 118.
99. Such superficial tenderness, it has been claimed, "is almost always present in patients motivated by financial secondary gain and almost never in patients with well-demonstrated physical pathologic conditions that improve appropriately." P. Douglas Kiester & Alexandra D. Duke, Is It Malingering, or Is It 'Real'?, 106 POSTGRADUATE MED., Dec.1999, http://www.postgradmed.com/issues/1999/12_99/kiester.htm.
100. I doubt that pain conditions can be divided neatly between those that are principally "organic" and those that are principally "psychological." Such categories can, however, serve as helpful shorthand expressions for what is certainly a much more complex distinction in pain etiology.
101. Main, supra note 30, at 174.
102. Id.
103. See Douglas R. Dalgeish & Teresa J. Stewart, Thermography in Missouri's Courts: Is the Frye Standard Alive and Well?, 60 UMKC L. REV. 467, 475 (1992).
104. Id. at 474.
105. Id. at 474-475.
106. Andrew B. Lustigman, Comment, A New Look at Thermography's Place in the Courtroom: A Reconciliation of the Conflicting Evidentiary Rules, 40 AM. U. L. REV. 419, 427-30 (1990).
107. See id. at 419-20, 430-31.
108. For cases finding thermographic evidence inadmissible, see, for example, McAdoo v. United States, 607 F. Supp. 788, 795 (E.D. Mich. 1984); Burkett v. Northern, 715 P.2d 1159, 1161 (Wash. Ct. App. 1986); Ferlise v. Eiler, 495 A.2d 129 ,131 (N.J. Super. Ct. App. Div. 1985). For cases permitting thermographic evidence, see, for example, Cherico v. National Railroad Passenger Corp., 758 F. Supp. 258, 263 (E.D. Pa. 1991), aff d without opinion, 96 F.2d 12 (3d Cir. 1992); Procida v. McLaughlin, 479 A.2d 447, 451 (N.J. Super. Ct. Law Div. 1984).
109. On the principles of diffusion tensor imaging, see Alexandre F. M. DaSilva et al., A Primer on Diffusion Tensor Imaging of Anatomical Substructures, 15 NEUROSURGICAL FOCUS 1 (2003);
110. Denis Le Bihan et al., Diffusion Tensor Imaging: Concepts and Applications, 13 J. MAGNETIC RESONANCE IMAGING 534 (2001).
111. While DTI has principally been used as a method of structural brain imaging, there is some evidence that it can also be an effective new tool in functional neuroimaging. Le Bihan et al., Direct and Fast Detection of Neuronal Activation in the Human Brain with Diffusion MRI, 103 PROC. NAT'L ACAD. SCI. 8263 (2006).
112. Le Bihan et al., supra note 81, at 534.
113. Id. at 543.
114. Id.
115. Press Release, Radiological Society of North America, Chronic Back Pain Linked to Changes in the Brain (Nov. 28, 2006), available at http://www.rsna.org/rsna/media/pr2006-2/chronic_back_pain-2.cfm.
116. Abstract, Radiological Society of North America, Diffusion Tensor Imaging (DTI) Danisotropic Changes in the Brain Associated with Chronic Low Back Pain (Nov. 29, 2006), available at http://rsna2006.rsna.org/rsna2006/V2006/ conference/event_display.cfm?em_id=4433436.
117. Press Release, Radiological Society of North America, supra note 85.
118. This sort of research typically uses group data, though the details of this particular experiment have yet to be made public.
119. Croley & Hanson, supra note 6, at 1789.
120. RESTATEMENT (SECOND) OF TORTS § 912 cmt. b (1977).
121. See generally DANIEL GILBERT, supra note 53, at 46-53.
122. WALL, supra note 19, at 11-12.
123. Ibolya Kállai, Antonia Barke & Ursula Voss, The Effects of Experimenter Characteristics on Pain Reports in Women and Men, 112 PAIN 142, 144 (2004).
124. Jennifer S. Labus, Francis J. Keefe & Mark P. Jensen, Self-Reports of Pain Intensity and Direct Observations of Pain Behavior: When are they Correlated?, 102 PAIN 109, 119 (2003).
125. Id.
126. Coghill, Interindividual Differences, supra note 3.
127. Id. at 8539.
128. Id. at 8541.
129. Id. at 8538, 8541.
130. Id. at 8542.
131. Id. at 8541 (stating that the "concurrence between multiple individuals' patterns of regional brain activation and their subjective reports of pain provides an objective context in which to assess the subjective report of any given individual").
132. See, e.g., Coghill, Intensity Processing, supra note 2, at 1934 (stating that even subjects who have an entire "cerebral hemisphere surgically removed retain the capacity to be consciously aware of a painful stimulus presented ipsilateral to their remaining hemisphere" and that "[q]uantitative psychophysical analysis of these subjects reveals that they have almost no disruption of their capacity to experience and evaluate pain intensity").
133. E-mail from Robert C. Coghill to Adam Kolber, supra note 31.
134. See Jennifer Granick, The Lie Behind Lie Detectors, WIRED, Mar. 15, 2006, available at http://www.wired.com/news/ technology/0,70411-0.html (claiming that fMRI lie detection is subject to simple countermeasures because "a subject can defeat the test by breathing deeply or by holding her breath").
135. R. Christopher deCharms et al., Control Over Brain Activation and Pain Learned by Using Real-Time Functional MRI, 102 PROC. NAT'L ACAD. SCI. 18626, 18626 (2005).
136. See id.
137. Stuart W.G. Derbyshire et al., Cerebral Activation During Hypnotically Induced and Imagined Pain, 23 NEUROIMAGE 392 (2004).
138. Id. at 395.
139. Id.
140. deCharms, supra note 105, at 18626.
141. Id. at 18626, 18628-30.
142. See id. at 18627-30 (finding that subjects taught to control pain intensity using real-time fMRI feedback were significantly more successful than those taught other strategies to control pain that lacked fMRI feedback). The harder it is to learn pain control techniques, the harder it is to fool a pain detector and the more meaningful will be attempts to cross-examine people about whether they have practiced countermeasures.
143. Importantly, for statistical reasons, it may be easier to use neuroimaging to support a pain claim than to rebut one. E-mail from Robert C Coghill to Adam Kolber, supra note 31.
144. Though it did not involve malingered pain as such, one neuroimaging study has suggested that PET scanning can play a valuable role in distinguishing subjectively experienced paralysis from simulated paralysis. The study explicitly mentions the possible application of this technology to the detection of malingered paralysis claims. See N.S. Ward, D.A. Oakley & R.S.J. Frackowiak, Differential Brain Activations During Intentionally Simulated and Subjectively Experienced Paralysis, 8 COGNITIVE NEUROPSYCHIATRY 295, 310-11 (2003);
145. see also CRAIG W. MARTIN, WORKERS' COMP. BOARD OF BRITISH COLUMBIA - EVIDENCE BASED PRACTICE GROUP, COMPENSATION AND REHABILITATION SERVICES DIVISION, DETECTING MALINGERERS' HIDDEN TRUTHS? (2003), http://www.worksafebc.com/health_care_providers/Assets/ PDF/detecting_malingerers.pdf.
146. Adrian M. Owen et al., Detecting Awareness in the Vegetative State, 313 SCIENCE 1402, 1402 (2006).
147. Id.
148. Benedict Carey, Mental Activity Seen in a Brain Gravely Injured, N.Y. TIMES, Sept. 8, 2006, at A1.
149. See Neil Levy, Persistent Vegetative States and Consciousness, Neuroethics & Law Blog, http://kolber.typepad.com/ ethics_law_blog/2006/09/persistent_vege.html.
150. Because we cannot ask those who are unconscious about their pain experiences, however, it would be extremely difficult to know if our assessments based on diagnostic images are valid measures of pain. See generally Mendelson, supra note 35, at 225 (discussing diagnostic validity).
151. On the use of neuroimaging by insurers more generally, see Tovino, supra note 14, at 847-48.
152. See id. at 847 (discussing limits on the use of such tests imposed by the Americans with Disabilities Act).
153. See Pryor, supra note 33, at 257-291 (discussing the relevance of pain adjudication to Social Security disability determinations).
154. See id. at 291-304 (discussing the relevance of pain adjudication to worker's compensation cases).
155. 509 U.S. 579, 589-94 (1993).
156. Id. at 592-95.
157. 293 F. 1013 (D.C Cir. 1923).
158. Id. at 1014.
159. FED. R. CIV. P. 35.
160. Anthony S. Niedwiecki, Science Fact or Science Fiction? The Implications of Court-Ordered Genetic Testing Under Rule 35, 34 U.S.F. L. REV. 295, 295 (2000).
161. Wolpe et al., supra note 8, at 39.
162. Lynette Reid & Françoise Baylis, Brains, Genes, and the Making of the Self, 5 AM. J. BIOETHICS 21, 22 (2005) ("What is novel and particularly interesting about privacy and confidentiality with neuroimaging . . . is the predicted-and unprecedented-access to human thought.").
163. Id.
164. Yukiyasu Kamitani & Frank Tong, Decoding the Visual and Subjective Contents of the Human Brain, 8 NATURE NEUROSCIENCE 679, 679 (2005).
165. See Thompson, supra note 8, at 1602 (suggesting that brain imaging could be used someday to reveal whether a person being interrogated recognizes a person in a photograph). See generally Charles N.W. Keckler, Cross-Examining the Brain: A Legal Analysis of Neural Imaging for Credibility Impeachment, 57 HASTINGS L.J. 509, 509 (2006) (suggesting that the "ability to examine in real time the response of the subject brain during a question and answer session makes it feasible to use [functional imagining] forensically, provided that the pattern of brain activity corresponding to deception is sufficiently well-characterized");
166. Nicholas Wade, Improved Scanning Technique Uses Brain as Portal to Thought, N.Y. TIMES, Apr. 25, 2005, at A19. One company, "No Lie MRIhas begun selling fMRI-based lie detection services, and a competitor, "Cephos Corp.," plans to do so in the near future. See No Lie MRI, Inc., http://www.noliemri.com (last visited May 9, 2007);
167. Cephos Corp., http://www.cephoscorp.com (last visited May 9, 2007).
168. Jorge Ponseti et al., A Functional Endophenotype for Sexual Orientation in Humans, 33 NEUROIMAGE 825 (2006).
169. See also Bruce A. Arnow et al., Brain Activation and Sexual Arousal in Healthy, Heterosexual Males, 125 BRAIN 1014 (2002).
170. See generally Elizabeth A. Phelps et al., Performance on Indirect Measures of Race Evaluation Predicts Amygdala Activation, 12 J. COGNITIVE NEUROSCIENCE 729 (2006);
171. Mary E. Wheeler & Susan T. Fiske, Controlling Racial Prejudice and Stereotyping. Social-Cognitive Goals Affect Amygdala and Stereotype Activation, 16 PSYCHOL. SCI. 56 (2005);
172. William A. Cunningham et al., Separable Neural Components in the Processing of Black and White Faces, 15 PSYCHOL. SCI. 806 (2004).
173. United States v. Scheffer, 523 U.S. 303, 313 (1998).
174. See Linda MacDonald Glenn, Keeping an Open Mind: What Legal Safeguards Are Needed?, 5 AM. J. BIOETHICS 39, 39 (2005);
175. Bruce J. Winick, The Right to Refuse Mental Health Treatment: A First Amendment Perspective, 44 U. MIAMI L. REV. 1, 17-19 (1989) (arguing that the First Amendment limits intrusive government interference with our mental processes). For cases mentioning "freedom of mind" or "freedom of thought," see, for example, Thomas v. Collins, 323 U.S. 516, 531 (1945) ("The First Amendment gives freedom of mind the same security as freedom of conscience."); Speiser v. Randall, 357 U.S. 513, 536 (1958) ("For there can be no true freedom of mind if thoughts are secure only when they are pent up."); Wooley v. Maynard, 430 U.S. 705, 714 (1977) ("We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all."). I have argued elsewhere that we are entitled to a certain "freedom of memory," that is one component of our "freedom of mind."
176. See Adam J. Kolber, Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening, 59 VAND. L. REV. 1561, 1567, 1622-1626 (2006).
177. 394 U.S. 557 (1969).
178. Id. at 565.
179. 539 U.S. 558 (2003).
180. Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of titles 18, 26, 29, and 42 U.S.C).
181. Theo Francis, Medical Dilemma: Spread of Records Stirs Patient Fears of Privacy Erosion, WALL ST. J., Dec. 26, 2006, at A1.
182. 45 C.F.R. § 164.506 (2006).
183. Francis, supra note 143.
184. In fact, even when we want to, it can be difficult to disguise our subjective experiences of pain. See Marilyn L. Hill & Kenneth D. Craig, Detecting Deception in Pain Expressions: The Structure of Genuine and Deceptive Facial Displays, 98 PAIN 135, 135 (2002) (claiming that "there is an empirical basis for discriminating genuine and deceptive facial displays").
185. See generally Judy Illes et al., Incidental Findings in Brain Imaging Research, 311 SCIENCE 783 (2006) (asserting that "[a]ll investigators engaged in brain imaging research should anticipate incidental findings in their experimental protocols and establish a pathway for handling them").
186. Discussing the use of fMRI as a lie detector in criminal trials, law professor Carter Snead, former general counsel to the President's Council on Bioethics, has stated that "[t]he human dimension of being subjected to the assessment of your peers has profound social and civic significance. If you supplant that with a biological metric, you're losing something extraordinarily important, even if you gain an incremental value in accuracy." Steve Silberman, Don't Even Think About Lying: How Brain Scans are Reinventing the Science of Lie Detection, WIRED MAGAZINE Jan. 2006, at http://www.wired.com/wired/archive/14.01/lying.html. Though his comments are directed at criminal trials, his concerns might also apply to the use of pain detectors in civil litigation if doing so largely replaces the jury's job to determine the credibility of a complainant's claims of suffering with a biological metric. In United States v. Scheffer, 523 U.S. 303, 317 (1998), the Supreme Court held that a rule of evidence barring polygraph testimony in air force courts martial did not violate the accused's constitutional right to present a defense. Thus, the accused was not permitted to offer exculpatory polygraph evidence. The Court's reasoning focused principally on the unreliability of the evidence. However, among the reasons given by Justice Thomas, joined by three other justices, was that even a reliable lie detector threatens the jury's core obligation to make credibility determinations in criminal trials. Id. at 312-13. According to Thomas, "[d]etermining the weight and credibility of witness testimony . . . has long been held to be the 'part of every case [that] belongs to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men.'" Id. at 313 (quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891)).
187. See Paul Bloom, Seduced by the Flickering Lights of the Brain, SEED MAGAZINE, June 27, 2006, http://www. seedmagazine.com/news/2006/06/seduced_by_the_flickering_ligh.php.
188. THOMAS NAGEL, MORTAL QUESTIONS 165-180 (1979).
189. Id. at 166-67.
190. See id. at 171-72 (stating that an "ascription of experience is possible only for someone sufficiently similar to the object of ascription to be able to adopt his point of view" and that "[t]he more different from oneself the other experiencer is, the less success one can expect with this enterprise").