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Michael Phelan
Michael Phelan
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Experts Not Permitted to Testify Plaintiff is Faking or Exaggerating Symptoms

2 comments

A written opinion issued earlier this month from the United States District Court for the Eastern District of Virginia, Richmond Division slams shut the door on the defense practice of hiring a medical expert to accuse the plaintiff of malingering, symptom magnification, being motivated by secondary gain, having somatoform disorder or any of the other names used by defense doctors to imply that injured plaintiffs are faking or lying. In Kidd v. Wal-Mart Stores, Inc., et al., Civil Action No. 3:09CV264, Magistrate Judge M. Hannah Lauck ruled that even if a medical expert possesses sufficient psychological expertise to offer expert testimony as to whether the plaintiff evinces symtom magnification or somatiform disorder, the Court would not permit the experts to opine whether the plaintiff has such disorder because "[s]uch testimony far too easily invades the province of the jury or comments on the credibility of the Plaintiff."

One often sees in defense neuropsychological reports opinions along the lines that the plaintiff’s complaints have a functional component, are motivated by secondary gain, represent symptom magnification or malingering, etc. I make it a practice to move to exclude such opinions as being the type of testimony the goes to the truthfulness or credibility of a witness and invades the province of the jury. See Pritchett v. Commonwealth, 263 Va. 182, 186-187, 557 S.E.2nd 205, 208 (2002). Virginia state trial courts have been receptive to this argument, and it is good to see the federal district court following suit.

2 Comments

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  1. Gerry McGill says:
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    Why am I not surprised Walmart and its lawyers employed such tactics? In my part of the country “Walmart lawyers” is a term usually reserved for the bottom feeders in the defense bar.

  2. Mike Bryant says:
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    Pain is physiological, that is always the thing that this paid for medical defense tactic misses or ignores. It is nice to see a court recognize the defense for what it is. Thanks for pointing this important case out.