In June 2018, I wrote, “The Erosion of the Faker Defense,” about the New Jersey Appellate Division’s decision in Rodriguez v. Wal-Mart Stores, Inc., 449 N.J. Super. 577 (App. Div. 2017). That blog focused on the issue of defense experts’ use of certain terms of art to relate a plaintiff’s medical condition to something other than the accident in question.
On March 4, 2019, the New Jersey Supreme Court rendered an opinion reversing in part and affirming in part the judgment of the Appellate Division. This opinion should be read by any personal-injury trial lawyer.
The Supreme Court held that the admissibility of defense medical expert testimony using terms like “somatization” and “symptom magnification” must be determined by trial courts on a case-by-case basis, consistent with N.J.R.E. 401 and N.J.R.E. 403. More specifically, the Court held that the trial court in Rodriguez did not abuse its discretion in allowing the jury to hear these terms. This decision has broader ramifications.
The Supreme Court discussed at length the terms, “somatization,” “symptom magnification,” and “malingering,” which are often used at trial to ascribe a cause of a plaintiff’s alleged personal injuries. The Court treated each of these terms differently. Essentially, the Court ruled that the use of the term “somatization” is permissible as long as it rendered by a qualified medical expert. The term “symptom magnification” should be analyzed on a case-by-case basis, but the Court considered it also considered it permissible because plaintiff presented inconsistent objective medical evidence and subjective complaints. The term “malingering,” however, raises a “heightened concern” because it has more potential to implicate a plaintiff’s credibility. Therefore, the Court cautioned that use of this term must be “carefully scrutinized” by trial courts via a balancing test under N.J.R.E. 403 - weighing the probative value of its use versus the prejudice to plaintiff.
Applying N.J.R.E. 401 to the facts of the Rodriguez case, the Supreme Court found that plaintiff’s medical history was “logically related” to issues of proximate cause, damages and pre-existing injuries. Under the N.J.R.E. 403 balancing test, the probative value of plaintiff’s past medical history – in light of plaintiff’s claimed injuries and psychiatric history – was not substantially outweighed by the risk of undue prejudice to plaintiff. The Court also noted that the defense medical expert – a board-certified neurologist – was qualified to render opinions regarding somatization and symptom magnification even though he was not a psychiatrist, psychologist or other mental-health specialist. Based on these factors, the Supreme Court ruled that the trial court did not abuse its discretion in allowing expert testimony on these controversial terms.
The Supreme Court has rejected a bright-line rule for use of these terms at trial. Instead, trial courts should determine their use on a case-by-case basis. Defense counsel should be aware of this decision and ensure that, when arguing that a plaintiff is malingering or the like, such argument should be logically related to the plaintiff’s past medical history and based on opinion from a qualified medical expert who offers as much objective support as possible. As discussed in my earlier blog, a defense expert’s reliance on objective test results and functional capacity evaluations are examples of such support.
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 firstname.lastname@example.org or call 732.545.4717.