NJ Supreme Court Rules Experts Can Testify About Symptom Magnification

In Alexandra Rodriguez v. Wal-Mart Stores, Inc., No. A-2/3-17/079470 (March 4, 2019), the New Jersey Supreme Court held that the admissibility of medical expert testimony using terms such as “somatization” and “symptom magnification” must be determined by trial courts on a case-by-case basis, consistent with the New Jersey Rules of Evidence (N.J.R.E.). The decision struck down the Appellate Division’s bright-line rule barring such testimony.

Facts of Alexandra Rodriguez v. Wal-Mart Stores, Inc.

While shopping in a store owned and operated by defendant Wal-Mart Stores, Inc., plaintiff Alexandra Rodriguez was struck by a falling clothing display rack. She later brought a negligence suit against Wal-Mart. After nerve decompression surgery failed to relieve her symptoms, Dr. Phillip Getson diagnosed Rodriguez with Chronic Regional Pain Syndrome (CRPS).

In her injury suit, Rodriguez asserted that Wal-Mart’s negligence caused her pain and CRPS. Dr. Getson and Robert Knobler, M.D., Ph.D., a neurologist, testified as expert witnesses on the plaintiff’s behalf. Plaintiff’s counsel asked Dr. Getson whether he believed plaintiff was “somaticizing” in light of her history of depression and whether her history of “psychiatric familial issues” could have caused her CRPS. Dr. Getson concluded that her psychological issues had nothing to do with her CRPS diagnosis. Dr. Knobler opined that if plaintiff’s CRPS were “psychologically caused, it would have manifested itself much earlier” than it did.

Dr. Benjamin Mark, a board-certified neurologist and internist who examined Rodriguez in his office prior to trial, took the stand as Wal-Mart’s first medical expert witness. Dr. Mark opined that he could not find “anything objective aside from [her] subjective complaints of pains,” adding that her symptoms “[did] not make clinical sense neurologically.” The trial court allowed Dr. Mark to testify about somatization and, subject to the judge’s limiting instruction, about symptom magnification.

At the close of the parties’ evidence, the court reminded the jury that only they determine the existence of facts upon which an expert relies and an expert’s credibility. The jury unanimously determined that plaintiff failed to prove by a preponderance of the evidence that Wal-Mart was negligent and thus liable for her injuries.

The Appellate Division reversed the jury verdict and remanded the case for a new trial. The appeals court held that expert testimony from a doctor, presented as a medical opinion, that “characterizes a plaintiff as a ‘malingerer’ or a ‘symptom magnifier,’ or some other negative term impugning the plaintiff’s believability” is “categorically disallowed” at a civil jury trial under N.J.R.E. 403. The Appellate Division also found the trial court’s limiting instruction insufficient to “ameliorate the undue harm of admitting the expert opinion. With respect to Dr. Mark, the appellate court concluded that he was not qualified to testify about “symptom magnification and related concepts” because he “lacked appropriate qualifications.”

New Jersey Supreme Court’s Decision in Alexandra Rodriguez v. Wal-Mart Stores, Inc.

The New Jersey Supreme Court reversed. It held that the admissibility of medical expert testimony utilizing terms such as “somatization” and “symptom magnification” must be determined by trial courts on a case-by-case basis, consistent with N.J.R.E. 403.

As explained by the court, N.J.R.E. 401 defines relevant evidence as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” 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.

In this case, the New Jersey Supreme Court found that there was no abuse of discretion in the trial court’s allowing the use of the terms “somatization” and “symptom magnification.” With respect to relevancy, the court explained that Dr. Mark’s testimony on “somatization” and “symptom magnification” was relevant because “somatization” was first described in detailed testimony by plaintiff’s medical expert, because Dr. Mark’s testimony challenged plaintiff’s theory of causation in this negligence action, and because CRPS is a diagnosis of exclusion that required Rodriguez’s physicians to rule out all of her previous mental health issues and accidents as possible factors prior to reaching a CRPS diagnosis. As Justice Lee Solomon explained:

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.”

With respect to the term “malingering,” the New Jersey Supreme Court acknowledged that the term raises heightened concerns since it may implicate credibility. However, it reversed the Appellate Division’s bright-line rule rejecting the use of “malingering” expert testimony in civil jury trials. Rather, it held that 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.

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