Recent developments in the admissibility of expert testimony
A reversal of the Appellate Division’s “bright line” prohibition on expert testimony suggesting that a plaintiff magnified her symptoms; the Supreme Court’s rejection of an expert opinion on causation as a net opinion; and a holding that a party witness’ specialized knowledge did not require him to be identified as an expert witness are recent interesting cases regarding the admissibility of expert testimony in New Jersey.
In a welcome ruling for the defense bar, the Supreme Court in March reversed the Appellate Division’s ruling in Rodriguez v. Wal-Mart Stores, 2109 N.J. LEXIS 273, with regard to whether defendant’s medical experts should have been precluded from using terms like “somatization” and “symptom magnification” in their trial testimony and reinstated the verdict of no cause of action. The NJDA filed an amicus curiae brief which argued that the categorical bar adopted by the Appellate Division “improperly restricts the bounds of relevant expert testimony and violates the balancing test inherent in any N.J.R.E. 403 analysis.”
In Rodriguez, plaintiff Alexandra Rodriguez was struck by a falling clothing display rack while shopping in a store owned and operated by defendant Wal-Mart Stores, Inc. in 2010. The rack struck Rodriguez’s right elbow and hand and the rack was lifted off of her by one of her children, customers and the store manager. Her liability expert opined that the rack and displayed clothing weighed approximately 141 to 157 pounds. Rodriguez claimed immediate pain in her neck and back but denied medical attention because her children were with her. An MRI study revealed a right upper ulnar neuropathy. She had nerve decompression surgery on her wrist and elbow. In 2013, Rodriguez had a spinal cord stimulator implanted to relieve what she contended was persisting pain. She was diagnosed with Chronic Regional Pain Syndrome (CRPS), a chronic pain condition that most often affects one limb usually after an injury.
Rodriguez’s past medical history included prior medical treatment for obstetric/gynecological issues, chronic abdominal pain, and psychiatric and psychological disorders. She was also involved in an automobile accident after the Wal-Mart incident and before her CRPS diagnosis.
Rodriguez filed a complaint which alleged that negligence by Wal-Mart in constructing and maintaining the clothing rack was the cause of her pain and CRPS. A doctor specializing in CRPS and a neurologist were called by plaintiff’s counsel to testify at trial. Both doctors diagnosed Rodriguez as suffering from CRPS. Plaintiff’s counsel asked the doctor specializing in CRPS whether he believed plaintiff was “somaticizing” in light of her history of depression. The doctor defined somatization as “the conversion of a psychological issue into a physical problem,” and testified that in his expert opinion, the plaintiff was not somaticizing.
The defense called a neurologist and internist as Wal-Mart’s first medical expert witness. He was not a psychiatrist, psychologist or other mental health specialist. He was asked by defense counsel whether the field of neurology overlaps with some of the “disciplines of psychiatry and some of the mental working[s] of the brain.” He responded, “absolutely because many disorders that involve the brain also affect your mood, behavior, personality. And therefore we do need to cross over and treat patients who have both psychological difficulties with the neurology difficulties.” Although plaintiff’s counsel had asked his own expert doctor if plaintiff was somaticizing, he objected to the defense neurologist’s testimony claiming that the doctor’s observations implying that plaintiff magnified her symptoms “invade[d] the province of the jury.” The trial court excused the jury and conducted an evidentiary hearing pursuant to N.J.R.E. 104 to determine the admissibility of the testimony.
During the N.J.R.E. 104 hearing, the defense neurologist defined somatization as “a process where individuals describe experiencing symptoms of various types that are not accompanied by objective findings and interpretations.” The doctor stated that “as a neurologist, I deal with this all the time. Patients are constantly referred to [neurologists] with subjective symptoms that may relate to the neurologic system that nobody else can explain…” When asked by plaintiff’s counsel whether he would diagnose Rodriguez with a somatoform disorder even though he is not a psychiatrist, the doctor responded that he would from a neurology point of view, but he would “refer her to a psychiatrist to further investigate.” The trial court allowed the defense neurologist to testify about somatization and symptom magnification subject to the judge’s limiting instruction.
The defense neurologist explained to the jury that somatization is a “clinical state where one would present at different times with different complaints.” He went on to clarify that, in the absence of a medical cause, “that type of history would then be referred to as a somatoform disorder, somatization.” The doctor stopped short of diagnosing Rodriguez with a somatoform disorder but expressed “concerns” about the validity of the CRPS diagnosis. He opined that plaintiff’s “psychological features” were “contributing to her clinical state in a great degree,” and, as such, “one has to correct those other factors first before…talking about CRPS.”
When defense counsel asked the doctor whether plaintiff could be magnifying her symptoms, the trial court instructed the jury “that ultimately you are the people that judge the credibility of the plaintiff.” The defense neurologist explained to the jury that symptom magnification is “a response that seems to be excessive compared to what should be observed in a given situation for most individuals,” and with respect to plaintiff, “There [were] some observations that would be compatible with symptom enhancement or magnification.”
Defense counsel the offered the videotaped de bene esse deposition testimony of an internist and rheumatologist. Prior to playing the videotape, plaintiff’s counsel objected to the testimony, arguing that the doctor should not be permitted to give his opinion on somatization and mental or emotional disorders because he is not a psychiatrist or psychologist. The court held a N.J.R.E. 104 hearing and denied plaintiff’s objection, reasoning that even though the doctor “may not be the specialist that ultimately points to [somatization]…he has experience to be able to recognize it and to identify it and to do something about it.”
On direct examination by defense counsel, the doctor testified that plaintiff’s “diagnosis of CRPS is wrong.” He noted plaintiff’s “significant psychiatric history” and “long history of chronic pain,” and concluded that “[i]t comes back to somatization again, psychological issues.” On cross-examination by plaintiff’s counsel, the doctor claimed that there was “no plausible explanation for [plaintiff’s] pain.” The trial court charged the jurors 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 injury. The Appellate Division reversed the jury verdict and remanded the case for a new trial. Rodriguez v. Wal-Mart Stores, Inc., 449 N.J. Super. 577, 599 (App. Div. 2017). The appellate panel 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. Id. at 596.
The Appellate Division found the trial court’s limiting instruction insufficient to “ameliorate the undue harm of admitting the expert opinion.” Id. at 598. The court noted that it was the sole and exclusive function of the jury to determine the credibility of the testimony of a witness and “[w]e do not allow one witness to comment upon the veracity of another witness.” Id. at 591. The court further stated, “Experts may not offer such testimony because credibility is an issue which is peculiarly within the jury’s ken and with respect to which ordinarily jurors require no expert assistance.” Id.
With respect to the defense neurologist who was not a mental health specialist, the court determined that he was not qualified to testify about “symptom magnification and related concepts” because he “lacked appropriate qualifications.” Id. at 597 n. 9.
The Supreme Court stated that the trial court’s decision to admit the disputed terms “somatization” and “symptom magnification” and plaintiff’s past medical history depended first upon their relevance, as defined in N.J.R.E. 401. The Court noted that relevant evidence is inadmissible under N.J.R.E. 403 when its probative value is 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.” Id. at 26. 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,” Id., citing Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001). The Court stated that it has 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.” Id., citing State v. Cole, 229 N.J. 430, 448-49 (2017).
The Supreme Court said the balancing test under N.J.R.E. 403 is a “delicate situation that requires the trial court to carefully weigh the testimony and determine whether it may be unduly prejudicial.” Id. at 27. That is so because of the expert witness’ “singular status in the courtroom.” Id. Consequently, the Supreme Court has instructed trial courts “to ensure that the expert does not usurp the jury’s function” and “opine on the credibility of witnesses.” Id.
The Court found that the testimony of Wal-Mart’s neurologist expert witness on “somatization” and “symptom magnification” was relevant because “somatization” was first described in detailed testimony by plaintiff’s medical expert and because the defense neurologist’s testimony challenged plaintiff’s theory of causation in this negligence action. Id. at 32-33. The Court noted that the relevance of this testimony was underscored by the fact that CRPS is a diagnosis of exclusion that required plaintiff’s physicians to rule out all of her previous mental health issues and accidents as possible factors prior to reaching a CRPS diagnosis. Id. at 33.
The Court found 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 and concluded that the defense neurologist’s testimony about plaintiff’s possible “somatization” was probative and correctly admitted by the trial court. Id. at 34.
In applying N.J.R.E. 403 to the term “symptom magnification,” the Court stated that courts should conduct a “fact-specific evaluation of the evidence in the setting of the individual case” to determine the admissibility of prejudicial evidence and the trial judge did so in his case. Id. at 36. The Court approved of the trial court’s “appropriate” instruction to the jury before the defense neurologist’s testimony and its credibility charge prior to the start of jury deliberations.
With regard to the term “malingering,” the Supreme Court disagreed with the Appellate panel’s determination that the term “symptom magnification” conveys the same notion as malingering and disagreed with the bright-line rule categorically excluding that term. The Court noted that the term “malingering” raises “heightened concerns” since it may implicate credibility and 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.” Id. at 38.
The Court affirmed the Appellate Division’s ruling that the trial court properly admitted plaintiff’s past medical history – including her psychiatric history – pursuant to N.J.R.E. 401 and 403. Because they held that the trial court did not abuse its discretion by allowing defendant’s medical experts to use terms like “symptom magnification” and “somatization,” the Court reversed that part of the Appellate Division’s judgment and reinstated the jury’s verdict of no cause of action for the defense.
In Townsend v. Pierre, 221 N.J. 36 (2015), the Supreme Court set forth a useful analysis of the net opinion rule in the context of a negligence case. Townsend involved a fatal motor vehicle collision which occurred at an intersection in Willingboro Township. The accident occurred when driver Noah Pierre was turning left after stopping at a stop sign and collided with a motorcycle, whose driver died as a result. According to Pierre, as she approached the intersection, shrubbery on the property at the intersection initially obstructed her view, but she “edged up” into the intersection, starting and stopping four times before attempting the left turn. Pierre testified that when she made her final stop, the shrubbery no longer impeded her view.
Plaintiff alleged that the property owner and tenant negligently maintained overgrown shrubbery on the property next to the intersection. The critical issue on appeal was the admissibility of plaintiff’s liability expert report by an engineer who concluded that “[t]he restricted substandard and unsafe intersection sight distance was a significant contributing cause of the accident” and Townsend’s death. Id. at 48. The expert discounted Pierre’s testimony that she did not turn until she had a clear view of oncoming traffic, based on her statement that her view was impeded before she edged into the intersection. Id.
All of the defendants filed motions to bar plaintiff’s expert report as a net opinion. The trial court granted the motion to strike the report, however the Appellate Division reversed the grant of summary judgment in favor of the property owner and tenant because it held the court had abused its discretion when it determined that the report constituted a net opinion. Id. at 49.
The Supreme Court stated that the net opinion rule is a “corollary of N.J.R.E. 703…which forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.” Id. at 53-54. The rule requires that an expert “give the why and wherefore that supports the opinion, rather than a mere conclusion.” Id. at 54.
The Court noted that while, “The net opinion rule is not a standard of perfection” it does mandate that experts “be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.” Id. at 54. The Court stated that when an expert speculates, “he ceases to be an aid to the trier of fact and becomes nothing more than an additional juror.” Id.
The Court found that the expert’s qualifications within his expertise as an engineer were unchallenged, however his opinion as to the issue of causation diverged from the evidence. Specifically, the expert’s assertion that Pierre’s testimony that when she turned left, her view of the traffic at the intersection was unimpeded was wrong. The Court found that in this crucial respect, the expert’s testimony was an inadmissible net opinion and was properly rejected as a net opinion by the trial court.
In E&H Steel Corp. v. PSEG Fossil, LLC, 455 N.J. Super. 12 (App. Div. 2018), the Appellate Division held that it was an abuse of discretion for a trial court to preclude a lay witness’ testimony on the grounds that his technical and arcane knowledge transformed him into an expert witness. The case was a breach of contract action arising out of a purchase agreement. Plaintiff was a successful bidder for a proposal to fabricate structural steel for equipment in a power station owned and operated by the defendant. Plaintiff based its unit prices on documents and specifications submitted with the bid package. After the contract was executed, Plaintiff alleged that defendants produced 47 new drawings that differed significantly from the drawings in the bid package. Defendant denied plaintiff’s requests for a revision and re-pricing of the units and a contract that conformed with new drawings. Plaintiff fabricated the steel according to the new drawings and submitted change orders for its increased time and labor due to the changes in the drawings. Defendant refused change order requests for anything other than increased tonnage.
Plaintiff filed a construction lien and complaint alleging that defendant breached the contract when it presented the new drawings which required additional time and labor yet failed to approve its change order requests. Defendant filed a counterclaim for breach of contract and dismissal of the lien. Defendant moved for summary judgment. Plaintiff’s principal witness was a vice president of the company and licensed professional engineer who had answered extensive interrogatories and had been deposed but had not been designated as an expert. He testified about how the change in drawings affected the fabrication process and pricing and necessitated an increase in the rate.
Following two days of testimony by this witness at a Rule 104 hearing to determine whether the plaintiff required an expert to establish a prima facie case, the trial court granted defendant’s motion for an involuntary dismissal. The court found the witness’ testimony “very technical, extremely arcane, very detailed, and something that the jury would have to hear in order to understand the difference in the plans.” The court determined that due to its technical nature, it was expert testimony. Since plaintiff had not designated the witness as an expert and he was the only witness proffered to support plaintiff’s claim, plaintiff’s claims were dismissed. Plaintiff then sought to amend its interrogatories to designate the witness as an expert, but the judge denied the motion based on a lack of “exceptional circumstances.”
A bench trial was held on the counterclaim, at which the court restricted the scope of that lay witness’ testimony. The judge concluded that the defendant failed to prove any breach of contract by plaintiff and prevailed on one back charge for $345,890. Plaintiff’s claims for recoupment and set-off were denied because plaintiff lacked expert testimony.
The Appellate Division held that the trial court abused its discretion by precluding the witness’ testimony. While it agreed with the judge that the testimony was “technical, arcane, and involved specialized knowledge,” it found that the nature of the testimony did not transform the engineer into an expert witness. The Court stated, “The fact that a person with technical knowledge of facts relevant to a dispute may also qualify as an expert in the particular field associated with those facts does not convert his or her testimony based on personal knowledge of specific facts into expert testimony under N.J.R.E. 702 and 703. Id. at 186. The Court further stated, “The fact that the transaction itself involved technical information and processes generally outside the knowledge of an average juror, and that [the witness] was qualified to explain those processes did not transform him into an expert witness. Any opinions expressed by [the witness] arose from his personal dealings with the project and knowledge of the field.” Id. The Court held that the witness’ testimony was proper admissible lay opinion testimony and he was not required to be designated as an expert witness or prepare a report in order to testify.
A version of this article was originally published in June 2019 in New Jersey Defense Magazine - Summer Issue.