Personal Injury Law

Virginia Federal Court Excludes Testimony of Somatoform Disorder

By Bruce Stern

A United States District Court for the Eastern District of Virginia granted a plaintiff's motion to exclude testimony of defendant's experts that plaintiff was magnifying her symptoms and was suffering from a somatoform disorder. Kidd v. Wal-Mart, 3:09CV264 (U.S.E.D. Va. 2010)
 
The case arose out of an incident where the plaintiff was injured when a Walmart employee, while operating a commercial car lift, severely and permanently injured plaintiff's foot.  Walmart retained Dr. Mark Ross, an 'expert in physical medicine and rehabilitation.'  Dr. Ross opined that plaintiff did not evidence objective signs or symptoms of RSD.  He also opined as to six potential causes for her pain, including symptom magnification and somatoform disorder.  Symptom magnification encompasses malingering and secondary gain.  Walmart also designated Dr. Leon Ensalada as an 'expert in the field of pain management', who was of a similar   opinion.
 
Plaintiff moved to exclude the testimony of Drs. Ross and Ensalada because the testimony of each presented the 'type of opinion testimony that went to the truthfulness of the plaintiff and invaded the province of the jury.'  Plaintiff argued that the proposed testimony of the doctors 'that the plaintiff is untruthful and is magnifying her symptoms either consciously or unconsciously...goes beyond the scope of proper expert testimony and allows the expert to comment on the plaintiff's reliability in the guise of a medical opinion.'
 
In response Walmart asserted that its experts did not opine that the plaintiff was a liar or untruthful, rather that the physicians' opinions that plaintiff might suffer from symptom magnification or somatoform disorder provided 'an explanation for the subjective complaints of pain in the left lower extremity.'
 
In deciding the case, the Federal Court noted 'where expert testimony seeks to comment on the credibility of a witness, such testimony answers 'the very question at the heart of the jury's task,' citing Nichols v. AM. Nat'l Ins. Co., 154 F.3d 875, 883 (8th Cir 1998).  Thus, the court, found an expert could not testify as to a witness' veracity because such testimony 'improperly invades the province of the jury to determine the reliability of the witness,' citing Pritchett v. Commonwealth, 557 S.E. 2d 205, 208 (VA. 2002).
 
Putting aside the issue of whether defendant's experts possessed sufficient psychological expertise to offer the expert testimony as to whether plaintiff evidenced symptom magnification  or somatoform disorder, the court that such testimony far too easily invaded the province of the jury or comments on the credibility of the plaintiff.  The court held:
 
Either doctor may testify as to medical evidence, or lack of medical evidence, supporting plaintiff's physical complaints in this case.  The also, upon proper foundation, may testify as to the existence of somatoform disorder as a recognized medical condition.  Neither doctor, however, may opine as to whether or not plaintiff herself has somatoform disorder because such testimony could comment on plaintiff's veracity and such testimony extends beyond the area of expertise identified for these doctors.

Full post as published by Traumatic Brain Injury Law Blog on December 14, 2010 (boomark / email).