by: John D. Winer, Esq.
San Francisco, California
I. UNDERSTANDING AND BELIEVING IN THE INJURY
Can there be a more serious injury than an injury to the human mind? A person can suffer terrible physical injuries and deformities and still live a fulfilled life if their mind is intact. There is no way to completely undo a psychological injury. They make artificial limbs, but they do not make artificial minds.
Only by accepting this premise – that an injury to the mind is the most serious injury of all – can we successfully represent our clients when they suffer significant psychological injuries. In most cases, psychic injury victims do not receive adequate compensation for their claims. Part of the problem stems from the fact that insurance adjustors, defense attorneys, arbitrators and judges do not take the claims seriously. However, it has been our experience that most jurors are willing to award large damages in psychological injury cases if properly prepared and presented. Unfortunately, until plaintiff attorneys accept the seriousness of these cases, too many of them will be settled below value. This article will explore some of the ways in which we can achieve more satisfactory results for our psychologically injured clients.
II. JURORS DO NOT NEED TO SEE WHAT THEY CAN BELIEVE
The basic difficulty in psychological injury cases is that usually a jury cannot “see” the plaintiff’s injury. Plaintiffs’ attorneys are fearful that a jury will react with great distrust when asked to award large sums of money for a “bizarre” injury which a plaintiff could be faking. Although a jury probably will have this mind set at the beginning of the trial, it can be overcome through proper preparation and presentation of the case.
All preparation must begin with this basic principle: if a jury believes your client it does not matter whether or not they can visualize the plaintiff’s injuries.
Therefore, in handling a psychological injury case, it is particularly important to do everything in your power to insure the plaintiff’s credibility.
Explain to the client from the initial interview that their case will be pushing the limits of the jurors’ willingness to believe that something like an accident can cause a serious psychological injury. If a jury does not believe them, then they will lose their case no matter how hard you try, and no matter how effectively the expert witnesses testify. Emphasize the importance of the client revealing all past psychological problems and prior treatment. Explain to the client that it is a good thing, and not a detriment to the case, that they had pre-existing psychological difficulties. During the plaintiff’s pre-deposition conference, reemphasize the fact that any lawsuit is a credibility contest, particularly a psychological injury case.
Plaintiff’s attorney plays an important role in maintaining the plaintiff’s credibility. Psychological injury cases, like medical malpractice cases, are “shifting sand” cases. What is meant by this is that the issues in the case will shift over time. One of the very predictable defense strategies will be that plaintiff’s psychological expert should be disbelieved because he or she based his or her opinions on inaccurate or insufficient data. The defense attorney, the defense investigator, and the defense psychiatric examiner will all be working to develop facts which indicate that plaintiff had serious pre-existing problems, or that some other stressor caused the plaintiff’s post-accident difficulties. It is inevitable, that the defense will successfully turn up evidence of pre-existing problems and/or evidence of problems due to other stressors. Since you know this going in, the plaintiff’s attorney must take appropriate steps to leave the door open for both plaintiff and the plaintiff’s experts to shift their testimony and opinions as additional information is developed in the case. This can be done in the following ways:
The plaintiff’s attorney must conduct the same type of investigation of his or her own client that the defense attorney will undertake. All prior medical, school and work records must be obtained and scrutinized. It must be reemphasized to the plaintiff how important it is for the plaintiff to “come clean” regarding traumatic events in his or her life and psychological problems.
Most significantly, in serious cases, plaintiff’s attorney should almost never order a report from a treating or expert therapist. The only way to insure your expert’s credibility is to wait as long as possible for him or her to render an opinion on the record. The obvious downside of this approach is that the case will be nearly impossible to settle pre-litigation or at an early stage of litigation, and the plaintiff will probably receive a poor arbitration result; however, it has always been our feeling that these cases are so hard to settle early anyway, that the potential upside is greatly overpowered by the substantial downside.
We only request reports from psychological experts when plaintiff has a relatively small psychological injury (for instance a 3 month fear of driving with absolutely no other residuals), or cases in which the defense attorney or adjustor assures us that the case has a substantial chance of settling for a significant amount of money with a report. Even under those circumstances, we are hesitant to order reports since they will more often than not destroy the credibility of the plaintiff and the plaintiff’s expert.
III. UNDERSTANDING THE ROLE OF THE EXPERT
Unlike other cases, it is usually not the expert’s role in a psychological injury case to “sell” the plaintiff’s injury. That is the attorney’s role. Further, it is not really the expert’s role to convince the jury that the plaintiff is injured. That is the job of the plaintiff and the lay witnesses who knew the plaintiff before and after the accident. If these witnesses are credible, then the jury will believe that the plaintiff has psychological problems.
It is the expert’s role to provide a reasonable and logical explanation as to the reason why the subject trauma caused the plaintiff’s psychological injury. This is by far the most significant role the plaintiff’s expert will undertake in a psychological injury case.
Basically, the psychological expert must develop a reasonable mechanism by which the subject trauma overwhelmed the plaintiff’s previously intact psychological defense mechanisms. The expert will explain that once the plaintiff’s defense mechanisms were overwhelmed, the plaintiff became flooded with unacceptable thoughts, and developed the psychological injury from which he or she now suffers. Before the trauma the plaintiff was vulnerable, but post trauma there is a full blown mental disorder.
It is never enough for an expert to testify that the trauma caused the accident because “plaintiff was like ‘A’ before the accident, and now is like ‘B’, therefore the trauma must have caused the problems”. This will not sell. It will not overcome a juror’s basic skepticism that a trauma, especially a relatively minor trauma, can cause a major psychological breakdown.
Instead, the expert must find the hidden vulnerabilities which left the plaintiff particularly susceptible to the subject trauma. Unless there is a very major trauma, a jury simply will not believe that a perfectly healthy person can develop a psychological injury from a single event.
Jurors must hold on to a belief in their own sense of invulnerability. No juror wants to believe that if they were in an accident he or she would become crazy. Therefore, the plaintiff’s expert must explain to the jurors that the plaintiff is not like them. The plaintiff had special vulnerabilities which left him or her susceptible to the trauma. Once a juror understands this concept, he or she will approach the case in a much more open minded framework, and be far more likely to attribute your client’s problems to the subject accident.
It is also important for the plaintiff’s psychological expert to help the jury understand that psychology has a scientific basis, just like the other fields of medicine. In every psychological injury trial we spend approximately two hours having the expert, through analogies, essentially explain to the jurors “psychology by numbers.” We do not shy away from concepts like ego, super ego and id. It is only by going through these concepts that a jury will hold psychology in the proper esteem, believe the severity of the plaintiff’s problems, and be willing to accept that the subject trauma caused those problems.
Finally, the plaintiff’s expert can comment upon the plaintiff’s damages and the difficulty in “curing” psychological disabilities. This will dovetail into testimony regarding prognosis.
For purposes of prognosis, it is important to recognize that therapists do not make prognoses in the same way that other doctors do. When a therapist gives an opinion such as “the plaintiff will require two years of therapy”, what the therapist may be really saying is that “the patient will definitely need 2 more years of therapy, then we will have to reevaluate to see how he or she is doing at that time. The patient may very well require more therapy after 2 years.” In the preparation of your psychological expert, it is critical that you explain to the expert that this is the plaintiff’s one day in court, and, the prognosis must take into account all probable future treatment needs.
IV. MEETING THE DEFENSES
The are three basic ways in which psychological cases injury are defended. The defenses in a given case are absolutely predictable, and you and your expert should be prepared for the defenses from the beginning of the case.
The defense may utilize any one or all three of the strategies given below.
1. There will be a claim that all of the plaintiff’s post trauma problems are due to a pre- existing condition.
2. The defense will claim that the plaintiff is malingering.
3. The defense will concede that the plaintiff has psychological difficulties, however, claim that they are due to a stressor other than the subject trauma.
1. Meeting the pre-existing condition defense.
The current vogue method for establishing a pre-existing condition defense is for the defense psychiatrist to claim that plaintiff suffers from a long standing personality disorder which, by definition, preceded the subject trauma. The defense psychiatrist will scour the plaintiff’s history to find evidence of this personality disorder.
If understood, the personality disorder defense should not be a hinderance to the plaintiff’s case.
First of all, a person can have a personality disorder and another mental disorder caused by the accident, such as a Post Traumatic Stress Disorder.
Secondly, even if the plaintiff did have a pre-existing personality disorder, the defense expert will have to concede that it can be greatly aggravated by a subsequent trauma. In fact, people with personality disorders are often particularly susceptible to subsequent traumas.
Third, just because a person had “problems” before the subject trauma does not mean they had a true personality disorder. Before the diagnosis of a personality disorder can be made, the plaintiff must be truly dysfunctional. If your client was able to work and have a reasonable social life before the accident, it is highly doubtful that he or she suffered from a personality disorder.
2. Meeting the Malingering Defense.
In a case in which it appears that the defense is going to claim that the plaintiff is faking the injury, the most valuable tool available to the plaintiff is psychological testing. Psychological testing, which is usually performed by Ph.D. psychologists and not psychiatrists, can provide objective evidence of mental disorder.
Further, plaintiff’s expert can testify that there is an objective element to every psychological examination. That is, the expert attempts to assess the patient’s affect, and to determine if that affect is consistent with the history provided by the patient.
It is important that the plaintiff’s expert state that he or she is not a naive type of person who accepts what the plaintiff told him or her. Psychological experts who come off as cynical make much better witnesses for this reason.
Plaintiff’s expert should review collateral information such as medical records and school records to verify plaintiff’s story. In addition, the expert should interview people who knew the plaintiff before and after the trauma to collaborate the plaintiff’s story.
3. Meeting the Other Stressor Defense
In almost every psychological injury case the defense will claim that the plaintiff’s problems are due to some stressor other than the subject trauma. Favorite “other stressors” include death, marital strain, financial strain, abortions, miscarriages and work problems.
There are basically two ways to meet the other stressor defense. First of all, plaintiff can make a legal attack. Secondly, plaintiff can point out the psychological inconsistencies with the defense’s “other stressor” theory.
The California jury instructions are very good for psychological injury cases. BAJI 3.76 which is the “legal cause” instruction states that “a legal cause of injury is a cause which is a substantial factor in bringing about the injury”. The emphasis needs to be on “a” substantial factor. Plaintiff does not have to prove that the subject trauma was the only cause of the injury, merely, that it was one substantial factor.
Next, plaintiff should request BAJI 3.77 and BAJI 3.78, which are the “concurring cause” instructions. If plaintiff is able to convince the judge to give these instructions, then plaintiff’s attorney can concede during argument that there were other stressors which caused plaintiff’s problems. However, this does not excuse defendant if he or she was a substantial factor in causing the plaintiff’s damages.
In terms of a more evidentiary attack on the other stressor defense, plaintiff can point to several factors to establish that the subject trauma caused the plaintiff’s injury as opposed to the causes proposed by the defense.
First of all, plaintiff, through his or her expert witness, can demonstrate that there is a close temporal relationship between the subject trauma and the onset of symptoms.
Secondly, there is usually a difference in the “quality” of symptoms produced by an event like a death and the type of psychological injury that follows a car accident. A death should produce grief type symptoms, while the subject car accident probably produced nightmares, fear of driving, etc.
Third, there is a difference in the duration of symptoms that follow from a major trauma such as a car accident or sexual abuse, as compared to the symptoms that follow a death. A death will create grief type symptoms which should pass in a matter of months. It is recognized that post traumatic stress disorder symptoms can last a lifetime.
This article was authored by John D. Winer. Winer, Burritt & Scott, LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.