“Symptom Magnification:” New Jersey Appellate Division Adopts Federal Standard for Expert Testimony

By:  Ryan P. Heller, Esq.

The Superior Court of New Jersey, Appellate Division recently seized an opportunity to adopt an Eighth Circuit standard precluding defense experts from offering opinions on “symptom magnification, malingering, or other equivalent concepts in civil jury cases.”  Despite the Eighth Circuit’s location in St. Louis, Missouri, and no New Jersey precedent in the matter, the Appellate Division held in Rodriguez v. Wal-Mart Stores, Inc. that such expert testimony had invaded “the exclusive province of the jury to determine the credibility of the testimony of a witness.”

Plaintiff Alexandra Rodriguez had appealed a Gloucester County jury’s “no-cause” defense verdict rendered after the defense expert, a neurologist, had opined that his observations of the Plaintiff during an independent medical examination were consistent with “somatization,” a process where an individual describes subjective symptoms that are not consistent with objective findings, and that she was instead “magnifying her symptoms.”  Despite the physician’s numerous qualifications in neurology, internal medicine, and electrical brain studies, as well as his experience in treatment of patients with psychological disorders, he was unable to formally diagnose a somatoform disorder, and conceded on the record that a psychiatrist would need to confirm such a diagnosis.  Objections from Plaintiff’s counsel prior to the testimony had led to a N.J. R. Evid. 104 hearing during trial in the matter, after which the trial court allowed the above testimony, with the admonishment to refrain from judgments as to the Plaintiff’s credibility.  Following the conclusion of proof, the jury returned a verdict against the Plaintiff and in favor of the Defendant.

Issuing a lengthy opinion to overturn the jury verdict and order a new trial, New Jersey’s Appellate Division elected to adopt the Eighth Circuit standard established in Nichols v. American National Insurance Company, which Plaintiff’s counsel had cited in a pretrial motion during Rodriguez.  Specifically, the Court took issue with the defense expert’s answering of a question ultimately reserved for the jury alone, holding that “[w]eighing evidence and determining credibility are tasks exclusive to the jury, and an expert should not offer an opinion about the truthfulness of witness testimony” (citing Nichols).  The Court clarified that a qualified defense expert is not precluded from testifying about observations as to the Plaintiff’s movements, or from testifying that subjective complaints appear to be inconsistent with objective medical tests.  However, an expert must refrain from stating before the jury the opinion that the Plaintiff is magnifying or exaggerating symptoms, which the Appellate Division considers to be a “thinly veiled comment on a witness’s credibility.”

Where testifying experts could previously use their expertise in neurology or orthopedics to conclude that a Plaintiff appeared motivated by exaggeration or secondary gain factors, a line must now be drawn to instead allow jurors to make that conclusion on their own, “based on ordinary experiences of life and common knowledge about human nature.”  If an examining doctor observes a Plaintiff with an alleged shoulder injury reaching for her coat as she exits, the observation is admissible, but any opinion on that action must be formed by the jury “without any pejorative labeling or credibility opinions from the defense expert.”