Volume 9, No. 4 2004
PRACTICE POINTERS
By Vincent M. Powers
Thanks to Omaha trial lawyer Bill Gast for forwarding this
practice pointer by calling to my attention that the Eighth
Circuit ruled in Nichols v. American National Insurance Co.,
154 F3d 875 (1997) that a verdict for a defendant in an employment
discrimination case must be reversed because the trial court
erroneously allowed the testimony of a psychiatrist who had
conducted an adverse medical examination as to issues concerning
her “veracity and credibility”.
Of course, the psychiatrist defined the adverse medical
exam as “an independent evaluation” which is necessary to allow
one to “ . . . interpret and weigh what they tell you or else you
can get it very skewed and inaccurate view of what actually
happened”.
The psychiatrist went on to give an opinion that may
sound familiar to many plaintiffs counsel:
“ . . . also gave her opinion that Dr. Tyndall had been influenced
by the way Nichols related what had happened to her. She said
that Nichols had recalled bias and her statements were affected by
secondary gain and malingering. She testified that
“recalled bias” refers to an individual’s belief that she has not
experienced certain symptoms even though her medical records
indicate otherwise, such as Nichols’ statement that she had not
experienced symptoms of depression and anxiety before she worked
at American National. She defined “secondary gain” as a
possibility that claims psychological symptoms are motivated by
financial gain and mentioned the potential for secondary gain in
litigation where money is sought. She criticized Dr. Tyndall for
using a structured interview in diagnosing PTSD because it could
allow Nichols to act under the influence of secondary gain and
recalled bias; “ . . . as this is – I mean this is what happened”
she also defined “malingering” as feigning or making up symptoms
for purpose of secondary gain.
The District Court allowed the testimony but the Eighth
Circuit found that it was error to allow the testimony:
The challenge testimony impugning Nichols’ psychiatric credibility
in suggesting that recalled bias, secondary gain and malingering
had influenced her story was not a proper subject of expert
testimony under Fed. R. Evid. 702. The record does not show that
these theories met the Daubert criteria and in her testimony Dr.
Pribor sought to answer the very question of the heart of the
jury’s task – could Nichols be believed? She testified that she
needed to “interpret and weight” what Nichols said or she could
“get a very skewed and inaccurate view of what actually happened”
and that Nichols was a malingerer motivated by financial gain.
Opinions of this type create a serious danger of confusing or
misleading the jury, see Fed. R. Evid. 403, causing it to
substitute the expert’s credibility assessment for its own common
sense determination.
I would suggest that the next time you get an adverse
medical opinion that has the language about “secondary gain and
malingering” that you seriously consider moving to strike the
testimony by making use of Daubert.
My understanding, thanks to Bill Gast, is that there
are a number of reference texts which set forth the criteria
before any diagnosis of malingering can be made including Schretlen,
The Use of Psychological Tests to Identify Malingered
Symptoms of Mental Disorder, Clinical Psychology Review,
Vol. 8, (1988) and Berry, Baer and Harris, Detection of
Malingering on the MMPI: A Meta-Analysis, Clinical
Psychology Review, Vol. 11, where the authors say that their
results confirm Schretlen's].
Again, my thanks to Bill for his willingness to share
his hard work which benefits all plaintiffs. Please forward any
pointers that you may have to me. |
