Is the defense doctor’s use of the words “symptom magnifier”, “somatization” and “malingerer” allowed in New Jersey personal injury actions after this decision?
Alexandra Rodriguez v. Wal-Mart Stores, Inc. (A-2/3-17) (079470) Argued September 13, 2018 — Decided March 4, 2019
(I am purposefully omitting the facts here because they are laid out in full in the decision that is also on this web page.)
The primary issue that I will be addressing in this personal injury action is the defense doctor’s use of the words “symptom magnifier”, “somatization” and “malingerer”.
Submitted by Personal Injury Lawyer, Jeffrey Hark.
New Jersey and all other states have civil Rules of Procedure with a specific court rule enabling the defense bar to obtain all the medical records both pre and post traumatic event, send them to the IME or DEFENSE doctor, and then examine the plaintiff. Often times the insurance company IME/defense doctors will, in the course of the exam conduct physical tests to elicit true or accurate responses, as well as to see of the examinee (the plaintiff) is telling the truth or giving their ‘best effort’ during the examination. When the plaintiff/injured party performs the tests inconsistently, or with mixed results, the doctor places these inconsistencies in their reports. The key is that these ‘malingering’, ‘symptom magnifying’ conclusions, when reiterated in front of the jury, are very prejudicial and too persuasive to a plaintiff’s case. When the DOCTOR testifies that the plaintiff is a malingerer, or is magnifying his symptoms; the defense and the insurance company, all through the doctor, are communicating to the jury that s/her (the injured party) is a liar, is not credible, is not telling them the full truth, is only here for money and they should not beleive him or her!
This is a very close case because of the plaintiff’s significant prior history and because the plaintiff’s treating doctors actually opened the door, or started the conversation, about the relationship between the current complaints and the plaintiff’s prior history and how they should be related.
The key tenor of the decision I think, is that Justice Solomon attempts to thread the needle between the specific facts of this case and how they are not likely to come up again (because the plaintiff opened the door to the issue) as opposed to general statements defense doctors attempt to say in all of the other less complicated and garden variety personal injury actions when the defense doctors gratuitously season all their repots with the language discussed below. Let’s go through what the court said about this issue.
First, the Supreme Court states that it must give deference to the trial court’s evidentiary rulings such as this because the trial judge is the one who can see the witnesses in the 104 hearing procedure, and determine believability of the witness, also part of hte trial court’s inherent power is that of making the prejudical vs probative evidence call. That trial court decision can only be overturned if there is a finding that the trial judge ‘abuse his discretion’.
“We (the New Jersey Supreme Court in this March 4, 2019 decision) begin our discussion by acknowledging the well-established principle that “[e]videntiary decisions are reviewed under the abuse of discretion standard because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court’s discretion.” Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). An abuse of discretion “arises on demonstration of manifest error or injustice,” Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), or when “there has been a clear error of judgment,” State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). This means that a trial court is granted broad discretion to determine both the relevance of the evidence presented and whether its probative value is substantially outweighed by its prejudicial nature. Wymbs v. Township of Wayne, 163 N.J. 523, 537 (2000); see, e.g., State v. Scharf, 225 N.J. 547, 572 (2016) (assessing relevance); State v. Nelson, 173 N.J. 417, 470 (2002) (weighing probative value versus prejudice); State v. Carter, 91 N.J. 86, 106 (1982) (same). “Thus, we will reverse an evidentiary ruling only if it ‘was so wide off the mark that a manifest denial of justice resulted.’” Griffin v. City of East Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
The trial court’s decision to admit the disputed terms — “somatization” and “symptom magnification” — and plaintiff’s past medical history depends first upon their “relevancy, ‘the hallmark of admissibility of evidence.’” Ibid. (quoting State v. Darby, 174 N.J. 509, 519 (2002)). Relevant evidence is “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. “In determining relevance, the trial court should focus on the logical connection between the proffered evidence and a fact in issue . . . or the tendency of evidence to establish the proposition that it is offered to prove.” Green, 160 N.J. at 492 (internal quotations omitted) (citing N.J.R.E. 401, cmt. 1).
Relevant evidence is inadmissible under N.J.R.E. 403 “when its probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case.” Griffin, 225 N.J. at 421 (quoting State v. Koskovich, 168 N.J. 448, 486 (2001) (alteration in original) (internal quotation marks removed)). However, “[t]he mere fact that ‘evidence is shrouded with unsavory implications is no reason for exclusion when it is a significant part of the proof.’” Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001) (quoting State v. West, 29 N.J. 327, 335 (1959)).
Here is where Justice Solomon attempts to limit the scope of the ruling in this case……..
We have repeatedly observed that determinations of admissibility under N.J.R.E. 401 and 403 are “fact-specific evaluation[s] of the evidence in the setting of the individual case.” State v. Cole, 229 N.J. 430, 448-49 (2017); see also State v. Nantambu, 221 N.J. 390, 395 (2015) (“[T]he decision whether to admit a recording into evidence is a highly fact-sensitive analysis . . . .”); State v. Cotto, 182 N.J. 316, 333 (2005) (stating that ruling on admissibility of evidence of third-party guilt “requires a fact-sensitive inquiry”).
In order “to create a record for appellate review of a disputed decision,” State v. J.R., 227 N.J. 393, 410 (2017) (quoting Torres, 183 N.J. at 567), the decision to exclude relevant evidence as unduly prejudicial is generally made outside the presence of the jury in an N.J.R.E. 104 hearing, ibid.; see, e.g., State v. Wakefield, 190 N.J. 397, 482 (2007) (noting favorably that Rule 104 hearing was used to redact victim impact statements); State v. Collier, 316 N.J. Super. 181, 196 (App. Div. 1998) (directing that Rule 104 hearing be held on remand for sanitization of evidence).
Now, there is a difference between general ‘relevant’ evidence or testimony and that coming from an expert……..
With respect to expert opinion testimony, such as is at issue here, we have described the balancing test under N.J.R.E. 403 as a “delicate situation that requires the trial court to carefully weigh the testimony and determine whether it may be unduly prejudicial.” Torres, 183 N.J. at 580. That is so because “the qualification of the [expert] . . . may lend credibility to the . . . testimony.” Ibid. “Given an expert witness’s singular status in the courtroom, ‘[t]he uncritical acceptance of expert testimony can becloud the issues.’” J.R., 227 N.J. at 411 (alteration in original) (quoting State v. R.W., 104 N.J. 14, 30 (1986)). Consequently, we have instructed trial courts “to ensure that the expert does not usurp the jury’s function” and “opine on the credibility of witnesses.” Ibid.
Now, in conjuction with attempting to limit the implications of this case, the court looks to examine each term the doctors used in this case. ………Before applying the above principles to the questions presented here, we must understand the terms at issue — “somatization,” “symptom magnification,” and “malingering.”
“Somatization” is defined as “[t]he process by which psychological needs are expressed in physical symptoms; e.g., the expression or conversion into physical symptoms of anxiety, or a wish for material gain associated with a legal action following an injury, or a related psychological need.” Stedman’s Medical Dictionary 1655 (27th ed. 2000). The Diagnostic and Statistical Manual of Mental Disorders (DSM-5), an authoritative text published by the American Psychiatric Association that classifies mental disorders, includes a category describing “somatic symptom and related disorders.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 309 (5th ed. 2013). All of the disorders included in that category “share a common feature: the prominence of somatic symptoms associated with significant distress and impairment. Individuals with disorders with prominent somatic symptoms are commonly encountered in primary care and other medical settings but are less commonly encountered in psychiatric and other mental health settings.” Ibid. (emphasis added).
The term “symptom magnification” is not clinically defined, nor does it appear in the DSM. Here, the term was used only by Dr. Mark, who defined it for the jury as “a response that seems to be excessive compared to what should be observed in a given situation for most individuals.” Even though the term is absent from the medical literature, it has been utilized by medical experts testifying in court proceedings to describe an exaggeration of symptoms. See, e.g., Spangler v. Lockheed Martin Energy Sys., 313 F.3d 356, 359-61 (6th Cir. 2002) (concerning employee’s appeal of termination of long-term disability benefits under Employee Retirement Income Security Act); Burnside v. Colvin, 197 F. Supp. 3d 705, 716 (M.D. Pa. 2015) (reviewing claimant’s appeal of denial of Social Security disability insurance benefits).
“Malingering” is defined in the DSM-IV as “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 683 (4th ed. 2000). The DSM-IV alerts health care professionals that “[m]alingering should be strongly suspected if . . . the person is referred by an attorney . . . for examination” or if there is a “marked discrepancy between the person’s claimed stress or disability and the objective findings.” Ibid. Although “malingering” was removed from the index in the DSM-5, it remains a diagnostic code, and the criteria for its consideration remain unchanged. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 850 (5th ed. 2013).
With those definitions in mind, we now apply our long-standing evidentiary principles to determine the admissibility of those contested terms. In doing so, we are mindful that this Court disfavors the adoption of per se rules of preclusion when determining the admissibility of evidence because “that practice conflicts with the modern rules of evidence.” Wymbs, 163 N.J. at 534.
Now the court examines the doctor’s testimony (the plaintiff’s and the defense doctor’s) and the plaintiff’s own testimony against each of these three defense terms used to prejudice plaintiffs in front of the jury…….
” …..Our review of the trial record reveals that there was sufficient credible evidence for a jury to conclude that plaintiff’s subjective complaints of pain were inconsistent with the objective medical evidence. In light of her previous accidents, her “multiple surgeries” to treat her chronic abdominal pain and obstetric/gynecological issues, her “intractable disabling pains involving her lower back and her right leg,” her struggles with depression, and her lengthy psychiatric history, Dr. Mark offered “somatization” as a possible explanation. Importantly, Dr. Mark defined “somatization” as “a process where individuals describe experiencing symptoms of various types that are not accompanied by objective findings and interpretations.” He did not use the far more descriptive definition of “somatization” found in Stedman’s Medical Dictionary — “a wish for material gain associated with a legal action following an injury” — which would have implied that plaintiff was dishonest.
Under these circumstances, we conclude that Dr. Mark’s testimony about plaintiff’s possible “somatization” was probative, and not so “inherently inflammatory . . . as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case.” Griffin, 225 N.J. at 421 (quoting Koskovich, 168 N.J. at 486) (internal quotation marks removed). Thus, the trial court did not abuse its discretion when it admitted Dr. Mark’s testimony about “somatization.”
Next, applying N.J.R.E. 403, we must determine whether the trial court abused its discretion by permitting Dr. Mark to refer to “symptom magnification.” In doing so we first note that on only one occasion did defense counsel or a defense expert mention the term. Specifically, defense counsel asked Dr. Mark whether plaintiff might be magnifying her symptoms. The trial court properly held an N.J.R.E. 104 hearing outside of the presence of the jury after Dr. Mark recalled that during his examination of plaintiff she exhibited hypersensitivity to his touch, a finding similar to Dr. Kahn’s observation of plaintiff’s “overt signs of . . . pain out of proportion.” In the end, the trial court admitted Dr. Mark’s testimony after instructing the jury that, “ultimately you are the people that judge the credibility of the plaintiff. And so you can take what the Doctor says. But ultimately it’s your decision as it relates to credibility of the plaintiff and determine from your determination what to accept and what not to accept.” Dr. Mark then responded to counsel’s question that “there [were] some observations that would be compatible with symptom enhancement or magnification.” We determine that the trial court did not abuse its discretion by admitting this testimony by Dr. Mark.
Unlike “somatization,” “symptom magnification” is not defined in the medical literature, and we recognize the term itself may implicate credibility. We are also mindful of the danger that a jury may afford more weight to the testimony of a qualified expert on “symptom magnification” because of “an expert witness’s singular status in the courtroom.” J.R., 227 N.J. at 411. However, the concept of “symptom magnification” is likely not “beyond the ken of the average juror,” State v. Harvey, 151 N.J. 117, 169 (1997), because the term itself essentially defines the concept — it describes a patient’s possible exaggeration of her symptoms. Legitimate concern that the term, when used by a medical expert, may implicate credibility does not justify a bright-line rule barring its use by a medical expert. As was done by the trial judge here, courts should conduct a “fact-specific evaluation of the evidence in the setting of the individual case” to determine the admissibility of prejudicial evidence. Cole, 229 N.J. at 448-49.
Given the inconsistencies between the objective medical evidence and Rodriguez’s subjective complaints of pain, Dr. Mark’s testimony about his observations of hypersensitivity, and Dr. Kahn’s mention of Rodriguez’s “overt signs of . . . pain out of proportion,” we find that any risk of undue prejudice was substantially outweighed by the significant probative value of the expert witness’s carefully-phrased opinion about plaintiff’s possible “symptom magnification.” To the extent that this testimony may have been problematic, we find that the trial court minimized any possible harm by giving an appropriate instruction to the jury before Dr. Mark’s testimony, and by its credibility charge to the jury prior to the start of deliberations, Model Jury Charges (Civil), 1.12K, “Credibility” (approved Nov. 1997) (“You will have to decide which witnesses to believe and which witnesses not to believe. Regardless of whether the witness is a lay person or expert, you may believe everything a witness said or only part of it or none of it.”).
The final term at issue here is “malingering.” The Appellate Division specifically held that Dr. Mark’s opinions on plaintiff’s symptom magnification were improperly admitted. In doing so, the panel merged its analysis of that term with “malingering . . . [and] other equivalent concepts in civil jury cases.” Rodriguez, 449 N.J. Super. at 580. However, none of defendant’s medical experts used the term “malingering” during trial; nor did defense counsel. Nevertheless, for completeness, we consider the Appellate Division’s categorical prohibition of its use by medical experts in bodily injury claims.
The DSM-IV lists “malingering” as a mental disorder; it remains in the DSM-5 as a diagnostic code. We agree with the panel that the term “malingerer” can “conjure up negative concepts of a person’s intentionally wrongful conduct, deceit, greed, evasion of duty, or criminality.” Rodriguez, 449 N.J. Super. at 592. However, we disagree with the panel’s determination that the term “symptom magnification” effectively conveys the same notion as malingering, “perhaps with more polite or scientific-sounding phraseology.” Ibid. A bright-line rule categorically excluding a term that “might help one side and adversely affect the other” would represent a stark departure from this Court’s prior jurisprudence and “would ill-serve the cause of truth and justice.” Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 317 (1995).
Nevertheless, the term “malingering” raises heightened concerns since it may implicate credibility. Therefore, a medical expert’s use of the term must be carefully scrutinized, applying an N.J.R.E. 403 balancing test, reviewed on appeal under an abuse of discretion standard. See, e.g., Green, 160 N.J. at 501-02 (applying N.J.R.E. 403 balancing in motor vehicle negligence action concluding that trial court abused its discretion by allowing defendant’s introduction of plaintiff’s racist statements).