Mental health professionals are frequently called on to testify in court regarding the emotional adjustment of plaintiffs in civil litigation. These professionals can be qualified by courts as experts based on their knowledge, skill, experience, or education, and permitted to render “expert” opinions that go beyond their personal observations or knowledge of the actual facts of a case.1 Although differences exist in how professionals from different mental health disciplines approach their work, a number of common methodological and procedural requirements apply to each discipline when they work in forensic contexts.
In cases involving claims for alleged emotional damages, mental health professionals can serve in one of three expert roles: (a) forensic evaluator, (b) treatment provider or (c) consultant. Each role carries certain responsibilities to the client or court concerning the nature of the expert’s professional activities. Consider for example a plaintiff who has sued her employer for alleged sexual harassment. As part of her allegations, the plaintiff claims that her employer’s acts led to, among other things, severe emotional problems involving symptoms of depression and posttraumatic stress disorder. The plaintiff may seek a mental health professional to initiate appropriate treatment to alleviate her emotional problems. At the same time, in order to quantify the plaintiff’s emotional damage in monetary terms, the plaintiff’s attorney would likely designate the mental health professional as a treating expert and ask the provider to submit a report describing the plaintiff’s emotional problems and diagnosis, the nature of treatment provided, the plaintiff’s response to that treatment, the prognosis for partial or complete recovery, and the nature and cost of treatment necessary to achieve maximum therapeutic benefit.2 The treating expert might then testify about his opinions in depositions and at trial.
Next, a mental health professional also can serve in an evaluator role designated by a party or by the court to conduct a forensic mental health evaluation.3 In the role of forensic evaluator, the mental health professional conducts in-depth clinical interviews, administers psychological tests, reviews medical records and other case documents, and obtains information from third party collateral sources who ideally have knowledge of the plaintiff’s emotional state before, during and after the alleged cause of action. The mental health professional typically prepares a report based on his findings and can testify in depositions and at trial.4 The mental health professional designated as the forensic evaluator provides no type of treatment, however.
Finally, a mental health professional can serve in a forensic context as a consultant hired by either side, usually outside the knowledge of opposing counsel and with no designation as an expert witness.5 Experts in a consulting role may participate in various activities, such as reviewing depositions, medical records, and reports prepared by other experts; reviewing scientific and professional literature regarding the psycholegal questions pertaining to the case; assisting in preparation of questions for depositions and trial; and consulting with attorneys regarding trial strategy, voir dire or any other relevant aspect of the case.
While each of these three roles can be assumed under the rubric of “expert,” they vary in a number of ways that have bearing on whether the work products of each are admissible in court and the extent to which the experts are vulnerable to challenge of the methodology they used to arrive at their opinions.
It is important to place any discussion about mental health experts in an appropriate historical context. Before the early 1990’s, often without much scrutiny of the actual methodologies employed, courts typically allowed expert testimony to go before the jury if the experts’ theories and techniques were “generally accepted” by others in the field.6 Beginning with Daubert v. Merrell Dow Pharmaceuticals, Inc., however, federal judges began to function as gatekeepers of the admissibility of expert testimony based on “evidentiary reliability.”7 Thus, trial judges were tasked with ensuring both the relevance and reliability of the expert evidence before allowing it to be admitted.8 Under Daubert, if the expert evidence was initially determined to be relevant and reliable, the court decided whether the probative value of the evidence outweighed its prejudicial impact.9 Texas courts followed suit, with slight modifications.10
Daubert and its progeny counseled that an expert’s opinion must not be a bare conclusion, mere surmise or speculation.11 Such testimony is, on its face, inadmissible.12 Instead, the offering party must first demonstrate that some rational connection exists between the expert’s opinion and the data he or she relied upon.13 Consequently, there cannot be too great an analytical gap between the expert’s methodology and his or her conclusions.14 An important restriction placed upon the courts is that they must never seek “to determine the truth or falsity of the expert’s opinion.”15 That job is left solely to the jury.16 Rather, the court’s responsibility remains only to make the initial assessment of the relevance and reliability of the expert’s opinion.17
Methodological and procedural considerations in evaluating emotional injuries
In the typical civil litigation lawsuit involving alleged emotional injuries, the work of the three types of mental health experts varies across a number of procedural and methodological dimensions, including (a) the extent of plaintiff vs. defendant advocacy biases, (b) assessment methods and their susceptibility to response biases and potential malingering, (c) temporal considerations, (d) the importance of diagnosis and (e) establishing causation and possible pre-existing conditions.
The three types of mental health experts vary in the nature of any advocacy provided to the client and/or the subject of the evaluation. These multiple loyalties often create real, and sometimes serious, ethical conflicts, where allegiance to one party comes at the expense of another.18
Take the forensic evaluator. Regardless of who retains him, he should remain objective, impartial, and not favor either the defendant or plaintiff. The proper role of the mental health expert as forensic evaluator is to assist the trier of fact by providing expert testimony to be considered in deliberations.
Treating experts on the other hand, while presumably held to the standards of impartiality expected of forensic experts, oftentimes, demonstrate an advocacy bias in favor of the plaintiff the mental health professional treated.19 A treatment provider serving as an expert witness has had, or currently has, a therapeutic relationship with the plaintiff. Thus, the plaintiff is both the patient and client. Most mental health professionals begin treatment with an assessment of the patient’s problem and then initiate a course of treatment designed to achieve the maximum level of improvement, hopefully to the same level of functioning the plaintiff enjoyed before the events that caused emotional trauma (whether attributable to the defendant or not). The typical assessment process employs clinical interviews involving questions posed by the mental health treatment provider, and in rare circumstances, a treating mental health professional administers psychological tests, and the resulting interpretation of these assessment findings is added to the information gleaned from interviews. Based on this information, the therapist arrives at a clinical formulation of the client’s presenting problem and may render a formal diagnosis according to the guidelines contained in the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM-IV-TR).20
The course of treatment is then initiated, and the patient’s response to treatment is documented in the form of progress notes. If the mental health professional is not a psychiatrist, patients sometimes are referred to outside physicians for evaluation of the appropriateness of adjunctive psychotropic medication. It is common for new issues to be uncovered in the course of such treatment, resulting in appropriate modifications of the treatment plan.
In litigation involving alleged emotional injuries, all records pertaining to mental health treatment are generally produced during the discovery process, accompanied by an appropriate release of information form executed by the patient or patient’s legally authorized representative.21 Such releases must satisfy the guidelines for release of confidential patient information under the Health Insurance Portability and Accountability Act (HIPAA), the Texas Health and Safety Code, and the licensing standards and ethical guidelines of the mental health provider’s professional discipline.22
Advocacy on behalf of one’s patient is critical to effective clinical work and can place a treatment provider who is in the role of expert witness at odds with the standards of objectivity that typically fall to experts, or in an untenable ethical conflict as the treatment provider moves from a clinical to a forensic arena.23 Based on the inherent tension between the roles of patient advocate and seeker of scientific truth or knowledge, the mental health treatment provider is subject to attack by defense counsel as being biased and untrustworthy.24 Further, multiple relationships (such as with the plaintiff and his attorney) are considered problematic if they impair the mental health professional’s objectivity, cause harm to the patient, or cloud the mental health professional’s judgment.25 Despite these concerns, mental health treatment providers frequently find themselves drawn into the forensic arena, either concurrently when one is asked to testify about a patient currently being treated or after treatment is terminated. It is easy to see how a well-intentioned mental health professional may extend that advocacy role to assist the patient more generally, and lead the mental health professional to unconsciously bias his or her own observations to facilitate the patient’s legal case by failing to explore certain avenues of inquiry, downplaying the significance of particular information, or uncritically accepting a patient’s self reports. On the flip side of the coin, a mental health treatment provider that has been lulled into the role of a forensic expert risks the possibility of hurting his or her patient, or the patient’s lawsuit, with damaging testimony that has a negative impact on the therapeutic relationship and, ultimately, on the patient’s treatment.
The consulting expert, by contrast, is not bound by any such constraints, and can freely serve as advocate for the side that employed him or her. Other than adherence to some broad aspirational standards contained in her profession’s ethics code, the consulting expert owes no duty whatsoever to the opposing side, be it the plaintiff or defendant. Furthermore, the activities of consulting experts are generally considered part of the retaining attorney’s work-product, and, therefore, are not discoverable under the rules of civil procedure.26
Forensic approaches to gathering information
Forensic assessment methods, response biases and malingering. Forensic evaluators generally adopt a multimethod approach to gathering information, including comprehensive histories and clinical interviews, psychological testing, reviews of medical records and other case documents and information from collateral sources such that the experts’ opinions can withstand careful scrutiny based on Daubert criteria. Whether employed by a party or the court, the forensic evaluator’s attitude is one of skepticism, given that plaintiffs who claim emotional damages often have powerful financial incentives to report significant emotional distress.27 Other psychological incentives also may be present, such as vindication, sympathy, favorable treatment, consistency with prior disclosures, and protecting dignity and reputation. Such forces can lead to conscious and nonconscious symptom exaggeration, where the severity of emotional distress claimed by the plaintiff exceeds his actual level of distress. The forensic evaluator must also be attuned to the possibility of outright malingering, where the plaintiff may fabricate psychological symptoms that do not actually exist. While self-reports by the plaintiff are sought in order to document his account of facts associated with the case, corroboration of those accounts through other assessment methods helps the forensic evaluator verify their accuracy and truthfulness.
Forensic interviews. The forensic evaluator uses a clinical interview, along with history, to explore the plaintiff’s background as well as events associated with the case. Forensic interviews can be structured or unstructured, but regardless of format they are generally very involved and thorough.28 The goal of a forensic interview is to obtain information pertinent to an individual’s psychological adjustment at various points in time. The forensic interview is both comprehensive and probing, in that the evaluator tries to obtain detailed information about every aspect of a plaintiff’s life that may bear on their past and current adjustment.
Psychological testing. Depending on their professional discipline, forensic evaluators often employ psychological testing with methods supported by empirical research and with sound psychometric properties and well established reliability and validity. Psychological testing in forensic contexts requires much more stringent adherence to high standards of validity/reliability than in treatment settings and sensitivity to the appropriateness of the demographic characteristics of the individuals on which the test was normed. Plaintiffs’ reading levels and language preferences should first be assessed. (Non-English versions of some psychological tests are available for plaintiffs whose dominant language is not English.) While normative appropriateness is highly desirable in evaluations done for treatment purposes, strict application of appropriate norms is an absolute necessity in forensic evaluations. The strength of an expert’s opinions must be moderated by information about the underlying psychometric properties of the assessment materials employed as well as the generalizability of supporting research to the particular case and psycholegal issues in question.29
Most forensic evaluators prefer to use objective psychological tests where a plaintiff responds in a true-false or frequency rating format to a series of statements about multiple personal domains. In forensic evaluation contexts, objective psychological tests are generally preferred over projective assessment techniques, which involve having an individual respond to ambiguous stimuli (e.g. Rorschach inkblots), thus projecting aspects of her personality through those responses. Given that questions about reliability and validity of projective tests have been raised, most forensic evaluators steer away from them to avoid being challenged during depositions or cross examination.30 Based on the extensive body of research supporting its validity and reliability in both clinical and forensic contexts, perhaps the most widely used objective psychological test is the Minnesota Multiphasic Personality Inventory 2 (MMPI-2).31 In addition to providing information relevant to emotional symptoms and personality adjustment, the MMPI-2 contains a number of validity scales that help document any response biases that may bear on the accuracy of test results, including the plaintiff’s level of cooperation with the assessment process, openness to self disclosure, and the consistency of responses across the test. MMPI-2 validity scales help identify individuals who are defensive and downplay symptom reports, wish to appear unrealistically virtuous or problem free, or in the opposite direction, exaggeration of symptoms to appear more distressed than person actually is. While many mental health professionals believe that they can determine symptom fabrication and malingering based on a plaintiff’s responses to an interview, research evidence suggests that interviewers are generally quite poor at identifying feigning by someone being evaluated.32
Forensic evaluators often include psychological measures specifically designed to assess malingering or exaggeration of psychological symptoms, including the Structured Inventory of Reported Symptoms (SIRS) and the Miller Forensic Assessment of Symptoms Test (M-FAST).33 While useful in many forensic evaluations, these two measures are best suited to assessing fabrication of psychoses and other forms of serious psychopathology. As such, they are more useful with detecting symptom magnification among relatively unsophisticated plaintiffs who have little knowledge of psychological disorders as opposed to the more subtle and sophisticated attempts to portray exaggerated symptomatology. Validity patterns among psychological tests also can shed light on the possibility of coaching, and corroborating information from other sources can be helpful in ruling out or confirming this possibility.
Collateral information. In order to further corroborate a plaintiff’s self reports, forensic evaluators gather information from case documents (e.g. medical records, affidavits, complaints, depositions, expert reports) to help ensure the accuracy of information obtained about a plaintiff’s psychological adjustment. Interviews with third party informants are also a useful source of collateral information. The ideal informant has extensive first-hand information about a plaintiff’s emotional adjustment before, during and after the alleged events in a case and is arms-length in that they have no vested interest in the outcome of the litigation. Information from third-party informants who do not satisfy these ideal requirements also may be obtained, but the forensic evaluator must be attuned to the possibility that the information obtained is incomplete or biased in some way out of loyalty or the possibility that they will benefit financially from a positive outcome of the plaintiff’s case. Information may also be biased in the opposite direction, as in the case where an informant minimizes any bona fide psychological harm from the defendant’s conduct. Both types of response biases among collateral informants must be weighed carefully by the forensic evaluator in order to rule out the possibility that an informant’s reports are not accurate.
Aggregation and interpretation of forensic information. Because the goals of a forensic evaluation are to obtain accurate, hopefully unbiased information about a plaintiff’s psychological adjustment, consistencies and discrepancies across information sources are examined. In forensic contexts, especially in light of Daubert, subjectivity in an expert’s opinions is best avoided or minimized. When unavoidable, experts are advised to acknowledge when their opinions are based on subjective impressions, and this fact should be considered when evaluating the confidence associated with such opinions.34Convergence of information both within and across sources is regarded as support for the validity of the information provided by plaintiffs; the greater the degree of convergence, the more confidence can be placed in the expert’s resulting opinions. On the other hand, significant discrepancies across information sources are subject to less benign interpretations, including raising questions about the veracity of the plaintiff’s story.
Clinical approaches to gathering information
Clinical assessment methods, response biases and malingering. The methods of gathering information by a mental health treatment provider differ in a number of important ways when compared to the forensic evaluator. While issues of reliability and validity of clinical reports is of some importance to the treatment provider, the patient’s self reports are typically taken at face value. In fact, treatment providers generally believe that the patient’s perceptions are of primary importance in mental health treatment and that legitimate differences of opinion might exist between the individual being treated and other people in his or her life. Possible issues of secondary gain and bias in the patient’s self presentation are certainly acknowledged by mental health treatment providers, but those possibilities are typically overridden by the assumption that anyone seeking treatment would be candid with his or her provider in the hopes of getting the best possible and most effective treatment. In some cases, possible issues of secondary gain and bias are seen as clinical issues and are incorporated into the conceptualization of the patient’s difficulties and their treatment plan.
Depending somewhat on their theoretical orientation, most treatment providers focus on the patient’s current life circumstances and symptoms. While any history of past psychological difficulties and treatment is of some interest if it helps to formulate the basis of the patient’s current psychological symptoms and direct the course of treatment. For these reasons, it is unlikely that most treatment providers would conduct a comprehensive history of the individual’s life, risk factors and protective factors as well as other events that may impact his or her current emotional state.
Clinical interviews and psychological testing. Most mental health treatment providers rely exclusively on interview methods to gather information and implement treatment. Patient perceptions are the primary focus of treatment. Self reports from the individual are treated as the principal source of data. Treatment providers seldom employ psychological testing on a routine basis to augment information gleaned from interviews. Thus, they are not privy to the accuracy of information contained in certain psychological tests as a possible check on the validity of patient self reports. Symptom checklists, which do not include any validity scales, are more commonly employed than in forensic settings to determine whether self-reported symptom severity exceeds the cutoff for being clinically significant. 35 Furthermore, while these measures do not directly assess malingering and symptom exaggeration, response styles reflected by extreme responding to most or all items would certainly warrant attention and can be interpreted as a “cry for help,” or purposeful or nonpurposeful symptom magnification when a patient claims emotional injuries in civil litigation. Projective assessment techniques also are used more commonly in treatment as opposed to forensic settings, because the value of generating useful hypotheses about a patient’s personality functioning, or with certain difficult patients who disclose little in response to direct questioning, outweighs concerns about the validity/reliability of projective tests. It also is unlikely that a treatment provider will administer measures designed to detect malingering.
Collateral information. Mental health treatment providers seldom review collateral information from case documents and medical records, unless there is potential therapeutic benefit from such inquiry. It also is very unlikely that they will obtain systematic information from third parties. If such information is obtained, it is usually from spouses or other family members, but seldom for the purpose of evaluating the veracity of the patient’s self reports. Rather, such information is obtained incidentally in order to enlist support from nonclients to assist in the therapeutic process. Further, issues of response biases that may impact the validity of third party reports generally would not be addressed. Consequently, assuming information about a plaintiff’s case-related emotional functioning is obtained from those close to the individual, it is difficult to rule out bias in those reports given that the informant may have a vested interest in the outcome of the case.
Aggregation and interpretation of clinical information. Inconsistencies across information sources or the plaintiff’s own self reports is certainly noted by a mental health treatment provider, but the significance of those inconsistencies differs from those obtained in the context of forensic evaluation. Treatment providers might consider many explanations for such inconsistencies. For example, a person may be inherently conflicted about how she sees a particular situation; hence, differing perspectives may be reflective of her ambivalence and considered part of the clinical case conceptualization. Clinicians may also subscribe to the notion that certain information is blocked from conscious retrieval for psychologically defensive reasons. Because most treatment takes place over time, mental health treatment providers are aware that it often takes time for certain psychologically painful thoughts and feelings to emerge. Consequently, inconsistencies of information at various points in time and may be seen as clinically significant rather than being an indication of response biases that undermine the truthfulness of the information obtained. The role of subjective interpretation and clinical judgment is common among treatment providers and there is an explicit effort to place those observations in a theoretically or clinically relevant context. Thus, mental health treatment providers often go well beyond the data of their observations to make sense out of the patient’s clinical presentation. Even though there is extensive research that underscores the inaccuracies of clinical judgment when compared to more objective, actuarial methods of interpretation.36 Information obtained over the course of treatment will ultimately determine whether observations and hypotheses obtained through the course of treatment are supported. Given the hypothesis generating purpose of information gathering in clinical practice, considerable latitude is afforded in the validity/reliability of assessment data for most common applications.37
Information gathering by consulting experts
As with forensic evaluators, consulting experts place great importance on the methodological factors that may bias information obtained from plaintiffs who are involved in civil litigation. The consulting expert is limited to the information obtained during the discovery process. Depending on when in the litigation process they are engaged, consulting experts can help direct that discovery process by requesting access to records and case documents or by posing questions that attorneys can use in interrogatories and depositions to help address issues of relevance to the case.38 Consulting experts provide a thorough methodological critique of the work performed by other experts and to assist attorneys in gathering or understanding evidence, which is used to prepare damages models or draft motions to exclude opposing expert reports and testimony, and in depositions or at trial to help impeach the credibility of the plaintiff and other witnesses, including expert witnesses. 39
Forensic evaluators conduct mental health evaluations after a lawsuit is initiated in which emotional damages are claimed. These evaluations typically involve a snapshot of the plaintiff’s psychological adjustment at the time of the evaluation, even though questions often must be addressed retrospectively about a plaintiff’s adjustment at some earlier point in time. Further, forensic evaluators seldom have access to plaintiffs at a later point in time in order to assess any improvement, deterioration or lack of change in their emotional adjustment. The forensic evaluator may have difficulty in obtaining valid documentation of the plaintiff’s pre-incident level of functioning as well as prognostic estimates about the future course of the plaintiff’s emotional adjustment. Plaintiff’s self reports about prior psychological symptoms or treatment may be obtained, but a plaintiff may be motivated to withhold or downplay such information if he or she believes the information may hurt the case. The timing of legal representation in relation to medical contacts and other case events can be important to determining if information from health care providers may be biased to support the plaintiff’s legal case when legal consultation precedes case-relevant disclosures by plaintiffs.40
Given that treatment typically extends over time, treatment providers are thought by some to be in the best position to render opinions about the temporal course of a plaintiff’s emotional symptoms.41 Opinions about a plaintiff’s psychological adjustment are generally more convincing where the treatment provider initiates treatment before the accrual of the cause of action for which a pre-incident baseline is available to compare the plaintiff’s post-incident emotional adjustment.42 Opinions from mental health treatment providers based on observations during the delivery of services provided after an alleged cause of action accrues are vulnerable to challenge that the plaintiff presented biased information to the provider in order to support his or her legal position.43
As with the forensic evaluators, consulting experts generally become involved after a lawsuit is filed. Depending on the nature of information to which they have access, consulting experts may be able to construct a timeline of events and psychological symptoms that are juxtaposed with those events. Unlike the forensic evaluator and treatment provider, the consultant - except when she participates in the plaintiff’s deposition - has no direct access to the plaintiff and must rely on information based on others’ observations.
Importance of diagnosis
When arriving at an expert opinion, forensic evaluators may assign a diagnosis to the plaintiff being evaluated based on strict application of the criteria spelled out in the Diagnostic and Statistical Manual-IV-TR.44 While the DSM-IV-TR warns that the diagnostic guidelines may not be appropriate in forensic settings, the guidelines are still commonly used by forensic evaluators to indicate that a plaintiff’s emotional problems are of sufficient clinical significance to constitute compensable emotional damages.
Though treatment providers also may assign a diagnosis for one or more purposes, such as for third party insurance reimbursement purposes, diagnoses are useful only to the extent that they help guide the course of treatment. When testifying as a treating expert, diagnoses may be somewhat more important than in a typical clinical setting in order to document the nature and severity of a plaintiff’s symptoms. If a mental health professional has worked with a plaintiff clinically before being designated as an expert, the diagnosis rendered at the outset of treatment in a clinical context may not have been formulated with the same level of rigor as would be the case in a forensic context, and would not likely be substantiated by collateral information or multiple sources as is the standard of practice for forensic evaluators.
Consulting experts also are interested in diagnostic issues, but they are seldom in a position to actually assign a diagnosis because they have not directly evaluated the plaintiff. Psychologists and some other mental health professionals are ethically prohibited from diagnosing an individual they have never met, but this ethical standard would typically apply only to forensic evaluators and treatment providers who actually testify in court as opposed to consulting experts who typically do not testify in depositions or in court.45 In a consulting context, “unofficial” diagnoses might be made for purpose of case theory development or in evaluating the conclusions of another expert’s forensic report.
Causation and pre-existing conditions
In civil actions, the issue of causation is of critical importance causation determines liability.46 In most instances, emotional injuries are relevant only as a measure of damages.47 That is, the “cause” of the plaintiff’s emotional injury is proven if, in the first instance, the defendant is found to be at fault. Although the plaintiff’s emotional symptoms and their severity may, in fact, be affected by other forces, the defendant’s conduct is still “a” or “the” legal cause of the injuries and, therefore, other events impacting mental health are relevant only to the extent the fact finder uses them to decrease money damages.48 By contrast, mental health professionals generally apply a biopsychosocial perspective to causation, which assumes that psychological symptoms are multidetermined, and that only in unusual circumstances can a single, direct and proximate cause of a plaintiff’s emotional symptoms be identified.
With respect to the cause(s) of an emotional disorder from a mental health perspective, the three types of experts differ in how, or if, to address the issue. The forensic evaluator approaches the task by conducting a comprehensive clinical history of the plaintiff’s life, as well as a detailed description of the events associated with the case, during the time frame immediately preceding, during and following those events. During that process, one goal is to determine if there is indeed a temporal association between the defendant’s conduct and the onset or exacerbation of symptoms as well as any distal or proximal factors in the plaintiff’s life that could have caused or contributed to the plaintiff’s symptoms. In the absence of a significant history of risk factors and prior trauma or stress, it is easier to establish a causal link between the defendant’s conduct and the plaintiff’s symptoms. However, the presence of significant risk factors, prior trauma and stress in the absence of protective factors muddies the causal picture considerably and forensic evaluators are often faced with the daunting task of trying to partition the various causal and contributory factors in the hopes of isolating the causal influence of the specific events alleged in the plaintiff’s lawsuit. Forensic evaluators also address issues of causation by review of the plaintiff’s medical records. Many medical conditions are associated with emotional symptoms, and scrutiny is given to those in close temporal proximity to the plaintiff’s emotional problems that are allegedly linked to the legal case. Likewise, medical records typically provide documentation about the medications that the plaintiff has been prescribed, including psychotropic medications for emotional problems. Given that many medications for medical and psychiatric conditions are associated with side effects that can mimic various emotional conditions, forensic evaluators must address potential medication side effects in the causal picture concerning a plaintiff’s emotional problems. It is especially difficult to separate proximate and nonproximate causes of an injury when a significant amount of time has elapsed.49 It also is likely that litigation stress interacts with the original harm from the relevant injury making this task even more difficult.
Causation is generally of less concern to treating professionals as the principal goal is remediation of the plaintiff’s emotional distress regardless of the cause of that distress. In fact, treating professionals may not always be permitted to render in-court opinions about causation.50 The principal difference between a forensic evaluator and treating professional involves methodology, specifically with the comprehensiveness of information that is obtained. Treating mental health professionals vary considerably in the extent to which they explore a client’s background, but in most instances that assessment tends be less thorough and comprehensive than would be expected in a forensic evaluation. Consequently, the treating professional may have insufficient information about a plaintiff’s background to provide a defensible opinion regarding possible alternative causal or contributory factors associated with the plaintiff’s emotional problems. Likewise, it is uncommon for a treating mental health professional to obtain and review medical records and medication logs concerning a plaintiff seen in treatment and it is difficult for a treating professional in an expert role to rule out the impact of pre-existing or concurrent medical or mental health symptoms as well as the potential emotional side effects of medications used to treat those symptoms.
It is imperative that the consulting expert address issues of causation in order to help attorneys make a case for or against the defendant’s conduct being the cause of a plaintiff’s emotional problems. The extent to which a consulting expert can do so, however, depends on the nature and scope of information obtained during the discovery process. In most instances involving claims for emotional damages, the consulting expert will have access to prior medical and mental health treatment records as well as pleadings, depositions, affidavits and other case documents that may help in formulating the causal picture. Consulting experts also may have access to reports prepared by forensic evaluators and treating experts to review, and the underlying information in relation to other experts’ opinions can then be evaluated. Consulting experts also may help in formulating questions for depositions or cross examination for attorneys to use in examining the basis and methodological underpinnings of an expert’s opinions
Related to the issue of causation is the presence or absence of prior mental health conditions or medical conditions that may impact the nature of a plaintiff’s alleged emotional problems. There are three possibilities. First, a plaintiff has no preexisting medical/mental health problems. Hence, any emotional problems that emerged in relation to the defendant’s actions or inactions are more likely to have been caused by that conduct. Second, a plaintiff has documented mental health problems similar to the ones claimed in the lawsuit which predated the events of a case. Except in the circumstance when the severity of those symptoms has been exacerbated following the events of a case, it is harder to argue that any emotional problems that were already present could have been caused by the alleged conduct of the defendant. The important question in claims of emotional distress often becomes whether the defendant’s unlawful behavior “aggravated,” “accelerated,” or contributed in any way to the severity or course of the mental injury, even if it was a preexisting disorder.51 Thus, preexisting emotional problems may contribute to the plaintiff’s vulnerability to future emotional harm, resulting in greater psychological impairment than otherwise would be the case. A plaintiff can be compensated for emotional injuries if the defendant’s conduct results in the exacerbation of a preexisting psychological injury, but may not recover for emotional damages caused by other events or circumstances.52 Third, it is possible that a plaintiff has prior mental health problems, but a different and distinct set of psychological symptoms emerged after the events associated with the case. For example, if a plaintiff had been treated for depression before an industrial accident, and later experienced posttraumatic stress disorder, one could more easily support the argument that the new emotional symptoms were related to the case. Given high co-morbidity between various emotional problems, however, such specificity of effect is often difficult to establish.
Further complicating matters, with preexisting conditions individuals often cope with idiosyncratic reactions to different external stimuli and some people are better at coping than others.53 When confronted with emotionally stressful situations some people may minimize their distress, while others “nurse” the distress and “build it up.” Thus, personality traits also impact the clinical symptomatology that emerges “under conditions of trauma or cumulative stress.”54 Moreover, “long-standing” personality traits or disorders may substantially impact the determination of causation. If such traits or the disorder caused significant impairment to functioning (i.e., occupational, academic, personal, social) before the injury, these traits become legally relevant.55
Issues of diagnosis also can be important to disentangling the causal/contributory influence of a defendant’s conduct and a pre-existing emotional problem. In the diagnostic guidelines for some emotional disorders, the time frame of symptom presentation is an important consideration. For example, for someone to be diagnosed with dysthymia, which is a long standing mild to moderate form of depression, psychological symptoms that satisfy the diagnostic guidelines must have been present for at least two years. If a plaintiff was diagnosed with dysthymia by a mental health treatment provider six months following an alleged wrongful termination, by definition the condition must have predated the adverse events in the case that supposedly caused those symptoms. Likewise, certain diagnostic codes like adjustment disorders and acute/posttraumatic stress disorder are used when there are identifiable environmental events that are implicated in the emergence of psychological symptoms. On the other hand, many mood disorders and anxiety disorders tend to be more chronic. Thus, if in the same scenario a plaintiff was diagnosed by a mental health professional with bi-polar disorder following the alleged sexual assault, which is a mental disorder that can be both chronic and genetically predisposed, it would be more difficult to support the argument that the disorder was caused by the sexual assault. An increase in the severity of symptoms might indeed be caused by the actions for which the defendant is legally liable, but first time onset of a plaintiff’s bi-polar disorder would be unusual.
Mental health professionals can be helpful in civil litigation involving emotional injuries, but the roles and functions of forensic evaluator, treating mental health provider and consulting expert have important implications. For mental health professionals, it is important that they clearly acknowledge potential biases, limits on validity/reliability of information, role differences, potential ethical pitfalls and other considerations that are implicated when moving from a clinical to a forensic role. Such mixing of roles is best avoided, given the complexities involved and the host of potential ethical and methodological problems. When unavoidable, the best approach is one of caution and forthright acknowledgement of the potential limitations associated with mental health professionals’ observations and the various influences that may undermine the usefulness of the resulting opinions.
Analysis of the role differences between treatment providers and forensic evaluators serving as expert witnesses also has important implications for attorneys who employ mental health professionals. Experts’ credentials and the methods they use should be given close scrutiny to help protect against uncritical acceptance of experts’ opinions and the unnecessary waste of the court’s time. Attorneys, like judges, must become more sophisticated in their ability to promote “good” science and purge “junk” science. Appreciation of the methodological requirements for treatment providers and forensic evaluators help determine if an expert’s opinions can withstand careful scrutiny demands of Daubert, Robinson and other criteria. A clear understanding and respect for the differences between clinical and forensic contexts, along with the proper use of expert testimony, all enhance the value of psychological science in the courtroom.
John P. Vincent,Ph.D., ABPP,is professor, director of doctoral training in clinical psychology, director of the Center for Forensic Psychology at the University of Houston, and clinical faculty member at Baylor College of Medicine. He is board certified in clinical psychology, directs the forensic division of the Texas Psychological Association, and specializes in clinic and forensic psychology. He can be reached at 713-790-1330 or firstname.lastname@example.org.
Scott Lemond is a trial and appellate attorney and partner with the firm of Lemond & Ross, LLC. A member of The Houston Lawyer editorial board, he can be reached at 713-223-2500 or email@example.com.
Tonya Inman, Ph.D.,is research assistant professor at the University of Houston and assistant director of the Center for Forensic Psychology.
1.See, e.g., Fed. R. Civ. P. 26, 35. Fed. R. Evid. 702-06. Tex. R. Civ. P. 192.3(e), 192.7(c)-(d), 194.2(f), 195, 204. Tex. R. Evid. 702-05. 2.Fed. R. Civ. P. 26, 35. Fed. R. Evid. 702-06. Tex. R. Civ. P. 192.3(e), 192.7(c)-(d), 194.2(f), 195, 204. Tex. R. Evid. 702-05. 3.Fed. R. Civ. P. 26(a), 35. Tex. R. Civ. P. 192.3(e), 194.2(f), 195, 204. 4.Fed. R. Civ. P. 26(a)(2), (b)(4), 30, 35. Fed. R. Evid. 702-06. Tex. R. Civ. P. 192.3(d)-(e), 192.7(c)-(d), 194.2(f), 195, 204.2. Tex. R. Evid. 702-05. 5.Fed. R. Civ. P. 26(a)(2), (b)(4). Tex. R. Civ. P. 192.3(e), 192.5. Castellanos v. Littlejohn, 945 S.W.2d 236, 239 (Tex.App.—San Antonio 1997 (orig. proceeding). 6.Frye v. U.S., 293 F. 1013, 1014 (D.C. Cir. 1923). 7.Daubert v. Merrill Dow Pharmaceutical., Inc., 509 U.S. 579, 587-89, 113 S.Ct. 2786, 2793-2794 & nn.4-5 (1993). “Evidentiary reliability” derives from the “scientific validity” of the expert’s methodology and not the number of adherents to the practice. Id. For a method to be “scientifically valid,” the principle upon which the method is based must support what the expert purports to show. Id. 8.Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. In order to be relevant, the expert’s opinion must “assist the trier of fact to understand the evidence or to determine a fact in issue.” Id., 509 U.S. at 591, 113 S.Ct. at 2795-96 (quoting Fed. R. Evid. 702). Reliability means that the “inference or assertion must be derived by the scientific method” (i.e. “the process for proposing and refining theoretical explanations about the world that are subject to further testing and refining.”). Id., 509 U.S. at 590, 113 S.Ct. at 2795. 9.Daubert, 509 U.S. at 595, 113 S.Ct. at 2798. Fed. R. Evid. 403); Kumho Tire v. Carmichael, 526 U.S. 137, 147-48, 119 S.Ct. 1167, 1174 (1997). 10.E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W. 549, 556 (Tex. 1995) (“[w]e are persuaded by the reasoning in Daubert and Kelly [v. State, 824 S.W.2d 568 (Tex.Crim.App). 1992)]” and, therefore, adopt their reasoning). Texas civil judges determine the admissibility of expert testimony based on criteria including, but not limited to: (i) the extent to which the theory on which the expert’s opinion is based has been or can be tested; (ii) whether the expert’s theory relies on the subjective interpretation of the expert; (iii) the extent to which the expert’s theory has been subjected to peer-review and/or publication; (iv) the technique’s potential error rate; (v) whether the underlying theory or technique is generally accepted as valid by the relevant scientific or technical community; (vi) the extent to which nonjudicial uses have been made of the theory or technique. Id. at 557. Compare Robinson, 923 S.W. at 556 and Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998) (extending Robinson to all civil litigation expert witnesses) with Kelly, 824 S.W.2d at 573 (adopting seven factor test in Texas criminal matters including general acceptance in relevant scientific community, expert’s qualifications, literature supporting or rejecting theory, error rate, availability of other experts to test and evaluate technique, clarity with which theory or technique can be explained to court, and experience and skill of person who applied technique) and Daubert, 509 U.S. at 594, 113 S.Ct. at 2796-97 (adopting a four factor non-exclusive test including extent to which a theory or technique can or has been tested, peer review and publication, error rate, and general acceptance by relevant scientific community). 11.Daubert, 509 U.S. at 590, 113 S.Ct. at 2795; GE v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 519 (1997); Volkswagen v. Ramirez, 159 S.W.3d 897, 904 (Tex. 2004). 12.Ramirez, 159 S.W.3d at 904. 13.Daubert, 509 U.S. at 590, 113 S.Ct. at 2795; Joiner, 522 U.S. at 146, 118 S.Ct. at 519; Ramirez, 159 S.W.3d at 904. 14.Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 519; Ramirez, 159 S.W.3d at 905; Gammill, 972 S.W.2d at 727. 15.Robinson, 923 S.W.2d at 558 (citing General Elec. Co. v. Ingram, 513 U.S. 1190, 115 S.Ct. 1253 (1995)). 16.Id. 17.Daubert, 509 U.S. at 589, 113 S.Ct. at 2795; Robinson, 923 S.W.2d at 558. 18.The Black & Decker Disability Plan v. Nord, 538 U.S. 822, 830, 123 S.Ct. 1965, 1970 & n.3 (2003). Of course, mental health experts also have responsibilities to the court, and sometimes to the individual being evaluated, to maintain truthfulness, objectivity, and impartiality. See, e.g., Tex. Pen. Code Ann. §§ 37.02-.03 (defining perjury and aggravated perjury); American Psychological Association, Ethical Principles of Psychologists and Code of Conduct § Principle E, 3.05b (2002) (psychologists who serve as expert witnesses must adhere to ethical principles, including “respect[ing] the dignity and worth of all people” and if, “due to unforeseen factors, a potentially harmful multiple relationship has arisen, the psychologist [must take] reasonable steps to resolve it with due regard for the best interests of the affected person.”). 19.Nord, 538 U.S. at 831, 123 S.Ct. at 1971. 20. AMERICAN PSYCHIATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL IV TR (2000). 21.Fed. R. Civ. P. 26(a), 31, 34-35. Tex. R. Civ. P. 192.1(b), (g), 192.3, 194.2(f), 195, 196, 204.2, 205.3(c). 22. 42 U.S.C. § 1320d1329d-8. 45 C.F.R. Part 164. Tex. Health & Safety Code Ann. § 241.152. See American Psychological Association, Ethical Principles of Psychologists and Code of Conduct § 4.01-.07 (2002); 22 Tex. Admin. Code § 465.12 (privacy and confidentiality rules promulgated by Board of Examiners of Psychologists). 23. For example, a treatment provider is prohibited from serving as both a forensic evaluator and therapist on the same case. 22 Tex. Admin. Code § 465.18(b)(5). 24.Grant L. Iverson, Dual Relationships in Psycholegal Evaluations: Treating Psychologists Serving as Expert Witnesses, 18(2) American Journal of Forensic Psychology 79-87 (2000). 25. 22 Tex. Admin. Code § 465.13. 26.Fed. R. Civ. P. 26(b)(3). Tex. R. Civ. P. 192.5. 27. Not only can the financial payoff be significant to plaintiffs, their failure to present at least some emotional symptoms can devastate a case. Patterson v. P.H.P Healthcare Corp., 90 F.3d 927, 939-41 (5th Cir. 1996) cert. denied 519 U.S. 191, 117 S.Ct. 767 (1997). 28.Michael B. First, Robert L. Spitzer, Miriam Gibbon & Janet B.W. Williams, Structured Clinical Interview for DSM-IV Axis I Disorders Clinician version (1996). 29.Joiner, 522 U.S. at 146-47, 118 S.Ct. at 519. 30.Scott O. Lilienfeld, James M. Wood, & Howard N. Garb, The Scientific Status of Projective Techniques, 1(2) Psychological Science in the Public Interest 27-65 (2000). 31.James N. Butcher, W. Grant Dahlstrom, John R. Graham, Auke Tellegen & Beverly Kaemmer, MMPI-2 (Minnesota Multiphasic Personality Inventory 2): Manual for Administration and Scoring (rev. ed. 2001). 32.James R. Ogloff, The Admissibility of Expert Testimony Regarding Malingering & Deception, 8(1) Behav. Sci. & L. 27-43 (1990). 33.Richard Rogers, R. Michael Bagby, & Susan E. Dickens, Psychological Assessment Resources, Structured Interview of Reported Symptoms (SIRS) and professional manual (1992); Holly Miller, Psychological Assessment Resources Manual for the Miller Forensic Assessment of Symptoms Test (M-FAST) (2001). 34.See Daubert, 509 U.S. at 594, 113 S.Ct. at 2796-97; Robinson, 923 S.W. at 556. 35.Aaron T. Beck, Robert A. Steer & Gregory K. Brown, Manual for the Beck Depression Inventory-II (1996); Leonard R. Derogatis & P.M. Spencer, John Hopkins University School of Medicine, Clinical Psychometrics Research Unit, The Brief Symptom Inventory (BSI) Administration, Scoring & Procedures Manual (1982). 36.Robin M. Dawes, David Faust & Paul E. Meehl, Clinical Versus Actuarial Judgment, 243(4899) Science 1668-1674 (1989). 37.Daubert, 509 U.S. at 590, 113 S.Ct. at 2795. 38.Fed. R. Civ. P. 26, 31, 33, 34, 36. Tex. R. Civ. P. 192.1(a)-(b), (d)-(e), 192.3(b), 192.7(a), 196-98, 200. 39.Castellanos, 945 S.W.2d at 239. Fed. R. Civ. P. 32. Fed. R. Evid. 607. Tex. R. Civ. P. 199. Tex. R. Evid. 607. 40.Nord, 538 U.S. at 831, 123 S.Ct. at 1971 41.Id. 42.Id. 43.Id. 44. DSM-IV-TR. 45. 22 Tex. Admin. Code § 465.18(b)(3). 46.Barron’s Law Dictionary 64-65 (3d ed. 1991). Flores v. Employees Ret. Sys., 74 S.W.3d 532 (Tex.App.Austin 2002, no pet.). 47.Compare Coates v. Whittington, 758 S.W.2d 749, 751-52 (Tex. 1988) and Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234 (1964) with Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004). 48.Pope v. Gaffney, No. 04-03-00456-CV, 2004 Tex.App. LEXIS 6988 at *8-9 (Tex.App.San Antonio Aug. 4, 2004, pet. denied). 49.H.N. Weissman, Forensic Psychological Assessment and the Effects of Protracted Litigation on Impairment in Personal Injury Litigation, 4 Forensic Reports 417-429 (1991). 50.Moore v. Ashland Chemical, 151 F.3d 269, 279 (5th Cir. 1997); Moreno v. Barnhart, No SA-02-CA-1126-XR, 2003 U.S.Dit. LEXIS 17129 (W.D. Tex. Sept. 3, 2003). 51.Gary B. Melton, John Petrila, Norman G. Poythress, & Christopher Slobogin, Compensating Mental Injuries: Workers’ Compensation and Torts, Psychological Evaluations for the Courts: A handbook for Mental Health Professionals and Lawyers (G. B. Melton, J. Petrila, N. G. Poythress, & C. Slobogin eds. 2d ed. 1997). 52.Jane. Goodman-Delahunty, Civil Law: Employment and Discrimination, Psychology and Law: The State of the Discipline, 277-337 (R. Roesch, S. D. Hart, & J. R. P. Ogloff eds.,1999); Shuman & Daley, supra n. 70. See generally Flores v. Employees Ret. Sys., 74 S.W.3d 532. 53.J.R. Twiford, Emotional Distress in Tort Law, 3(2) Behav. Sci. & L. 121-133. (1985). 54. D.B. DOBBS, LAW OF TORT (2002) 55.H.N. Weissman, Forensic Psychological Assessment and the Effects of Protracted Litigation on Impairment in Personal Injury Litigation, 4 Forensic Reports 417-429 (1991).