The Erosion of the “Faker” Defense?

In personal-injury trials, defense counsel question plaintiffs’ credibility in various ways.  Where applicable, one method is by offering evidence of a plaintiff’s symptom magnification, exaggerations or malingering – euphemisms for simply faking it.  However, a New Jersey Appellate Division decision, Rodriguez v. Wal-Mart Stores, Inc., 449 N.J. Super. 577 (App. Div. 2017), has limited the use of such evidence.  The Rodriguez case has been granted certification to the New Jersey Supreme Court.  In the interim, during one of my recent jury trials, the judge extended this limitation beyond the scope of the defense expert’s own opinions.

In Rodriguez, the plaintiff claimed she was severely injured as a result of being struck by a metal rack in the defendant’s store.  The defendant denied liability for the incident.  The defendant also disputed that plaintiff’s injury was caused by the incident.  At trial, the defendant called several medical experts, including a neurologist, to testify.  The plaintiff’s attorney objected to the neurologist’s testimony before the expert took the witness stand.  The trial judge conducted a hearing, pursuant to N.J.R.E. Rule 104, to rule on the objection. 

During the hearing, the defense expert stated that the plaintiff’s complaints were inconsistent with his examination and objective diagnostic studies. According to the expert, the plaintiff’s complaints and physical responses were consistent with somatization – a process in which a person describes symptoms that are not accompanied by objective findings.  The expert did not diagnose the plaintiff with that condition, and he acknowledged he would have to consult with a mental-health professional to do so.  The expert also opined that plaintiff was magnifying her symptoms.  The trial judge overruled the plaintiff’s objection and permitted the proffered testimony, during which the expert defined “symptom magnification” for the jury as “a response that seems to be excessive compared to what it should be.”

Ultimately, the jury rendered a verdict in favor of the defendant on the issue of liability.  Accordingly, the jury never decided issues of plaintiff’s damages.

Plaintiff appealed the adverse verdict.  She argued, in part, that the admission of the defense expert’s opinion concerning symptom magnification, malingering and similar concepts was prejudicial.  The Appellate Division noted that the admissibility of such testimony at a civil jury trial was an issue of first impression in New Jersey. 

The Appellate Division cited the well-established principles that determination of credibility is exclusively the function of a jury and, conversely, that one witness cannot comment on the veracity of another.  The court stated that to brand someone a “malingerer” is to declare “him or her ‘a faker, a liar, a slacker, or a sloth.’”  While acknowledging that the phenomenon of malingering is real, the court feared that expert testimony about it would unduly usurp the jury’s role to evaluate a plaintiff’s credibility.  The court found that allowing an expert to call a plaintiff a “malingerer” or “symptom magnifier” has a “clear capacity to deprive a plaintiff of a fair jury trial.” Therefore, the court held that such testimony should be “categorically disallowed under N.J.R.E. 403.”  The court established this holding as a “bright-line principle.” 

The Rodriguez court indicated that its holding does not preclude 1) an expert’s factual testimony as to observations of the plaintiff during examination or 2) an expert’s opinion - without using pejorative labels - that “a plaintiff’s complaints are inconsistent with objective medical test results or findings.”  The court opined that the neurologist’s testimony so infected the jury’s verdict – even though it was to the issue of liability - that plaintiff was entitled to a new trial on all issues.  Thus, the Appellate Division reversed the trial judge’s ruling and remanded the case for a new trial. 

While the Supreme Court is set to consider this issue, it was expanded in one of my recent jury trials. In my case, plaintiff had undergone a functional capacity evaluation at the request of his employer’s workers’ compensation carrier.  This evaluation included several measurable tests, in part to objectively gauge the level of plaintiff’s effort, which was noted to be less than maximal in several areas.  The defendant did not arrange for the functional capacity evaluation, but the defendant’s medical expert did rely upon it in rendering his opinion.  Our trial judge applied the Rodriguez decision expansively to prohibit the defendant’s expert from opining that plaintiff was exaggerating her symptoms and to preclude any reference to the results of a functional capacity evaluation.  Thus, the defendant was precluded from introducing empirical evidence of the plaintiff’s lack of effort, not just a defense expert’s opinion that the plaintiff was malingering or the like. 

Like the trial in Rodriguez, my trial was favorably decided on other issues.  We await the New Jersey Supreme Court’s opinion on this issue.  If Appellate Division’s decision is upheld, given its bright-line application, will there be realistic circumstances in which defense counsel can argue to a jury that a plaintiff is a symptom magnifier, faker or malingerer?   Trial attorneys should be cognizant of this issue. 

Frank Kontely is a Partner in the firm’s General Liability group. He also has extensive litigation experience in insurance defense matters. Frank can be reached at or call 732.545.4717.