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Expert Testimony on Psychological Injury: Procedural and Evidentiary Issues

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Abstract

This article introduces psychologists to aspects of the legal process most pertinent to their role as expert witnesses in civil litigation. It summarizes the role of psychological evidence in the adjudication of common law tort claims, the structure of the court system, and the stages of the litigation process. It also explains the various roles a psychological expert may play during litigation and the implications of those roles for expert confidentiality and disclosure. The article then provides an overview of legal policy governing the admissibility of psychological expertise, especially as admissibility is affected by the “Daubert” standard applied in most North American courts.

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Notes

  1. In most other “civil” law systems, the court exercises “inquisitorial” powers and both develops the evidence and serves as fact finder. L. Newman & M. Burrows, The Practice of International Litigation III-2 (1999) (“The inquisitorial role of the civil-law judge is fundamentally at odds with the common-law practice of placing the burden of obtaining and presenting evidence on adverse parties”) More recently, English courts have introduced reforms granting the court primary control of expert testimony. See D. Faigman, Expert Evidence and Psychological Expertise 393–94 in Handbook of Psychology in Legal Contexts 83 (2003).

  2. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993). The “Frye” test, superseded by Daubert in federal courts, remains the standard in a substantial minority of state courts. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). As we will discuss later, it is unclear whether differing tests result in significantly different outcomes in litigation. Daubert is often referred to collectively with two other Supreme Court decisions on expert testimony as the “Daubert trilogy.” The second case in the trilogy is General Elec. Co. v. Joiner, 522 US 136 (1997), which holds that trial court decisions admitting or excluding expert testimony are reviewed on appeal for an “abuse of discretion.” The third case, Kumho Tire Co. v. Carmichael, 526 US 137 (1999), extends the Daubert standard to witnesses claiming expertise based on “specialized knowledge or experience” and also elaborates on application of the Daubert criteria.

  3. The Canada Supreme Court has also affirmed its use of factors like those in Daubert when scrutinizing scientific evidence. See R.c.J. (J.-L.), 2000 CarswellQue 2310 (Sup. Ct. Can. 2000) (finding the Daubert factors “helpful” in evaluating scientific evidence).

  4. See generally D. Lorandos & T. Campbell, Benchbook in the Behavioral Sciences 233 (2005); G. Melton, J. Petrila, N. Poythress, & C. Slobogin, Psychological Evaluations for the Courts 279 (1987).

  5. See Richard Mayou & Andrew Farmer, ABC of Psychological Medicine: Trauma, 325 British Med. J. 426 (2002).

  6. The principal problem confronted by modern courts is whether and when to compensate mental injury when there is no accompanying physical trauma or injury. See Benchbook in the Behavioral Sciences, supra, at 233–35.

  7. A party dissatisfied with the administrative outcome may usually seek redress by appealing to a court.

  8. See Restatement (Second) of Torts, Section 456.

  9. In addition to negligent conduct, tort law may premise recovery on intentional misconduct (e.g., assault and battery) and “blameless” conduct (e.g., strict liability for marketing an inherently dangerous product). Further, modern tort law is supplemented by a variety of statutory wrongs whose commission may result in liability for mental injury. The most well-known form of statutory liability is that resulting from sexual harassment, which is proscribed by laws banning gender discrimination. See, e.g., 42 USC, Section 2000e, et seq.

  10. See J. Stein, 2 Stein on Personal Injury Damages, Section 8:18 (2007). At the same time, expert testimony is not required to prove forms of psychological injury like pain and suffering, which jurors evaluate based on their common sense and experience. Nor are experts permitted to opine on the appropriate amount of compensation for such damages, which is an issue for the jury to determine.

  11. See generally G. Young, A. Kane, & K. Nicholson, Psychological Knowledge in Court (2006) (hereinafter “Psychological Knowledge in Court).”

  12. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000).

  13. See Restatement (Second) of Torts, Section 431.

  14. See Restatement (Second) of Torts, Section 461.

  15. See, e.g., Benn v. Thomas, 512 N.W. 2d 537, 538–39 (Ia. 1994). The Supreme Court of Canada has observed that the tortfeasor is not liable to the victim with a “crumbling skull.” Athey v. Leonati, 3 S.C.R. 458 (Sup. Ct. Can. 1996). But this position seems nothing more than the statement that a tortfeasor is not liable for injuries he has not caused. See Blackwater v. Plint, 2005 CarswellBC 2358, Paragraph 69 (Sup. Ct. Can 2005).

  16. Administrative proceedings often begin with a hearing before an “administrative law judge.” Such “ALJs” have expertise resolving claims in the particular field but are not usually judges in the conventional sense.

  17. See 3 Modern Workers Compensation, Section 308.1; 82 Am. Jur. 2d Workers’ Compensation, Section 570 (2007).

  18. See Charles H. Koch, Jr., 2 Admin. L & Prac 552 (2nd ed. 2006).

  19. See, e.g., Bayliss v. Barnhart, 427 F. 3d 1211, 1218 n.4 (9th Cir. 2005). In some jurisdictions, however, evidentiary standards governing the admission of expert testimony in courts may apply to administrative proceedings like workers compensation. Consequently, it is always important to examine a particular jurisdiction’s evidentiary law. See, e.g., U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 107–08 (Fla. 2002) (applying “Frye” standard to expert testimony in worker’s compensation proceedings).

  20. See, e.g., Pasha v. Gonzalez, 433 F.3d 530, 535 (7th Cir. 2005) (stating the “spirit” of Daubert applies to administrative proceedings).

  21. The plaintiff’s right to choose may be trumped by the defendant in some cases. Even if the plaintiff files suit in state court, the defendant may have authority to “remove” the case to federal court. See, e.g., 28 USC, Section 1441.

  22. Forensic psychologists must also pay attention to possible restrictions on their ability to serve as experts in a particular jurisdiction. This issue is discussed in Andrew W. Kane, Psychology, Causality, and Court in Psychological Knowledge in Court, supra note 11 at 18–19 (2006). Courts do not normally regulate the practice of non-lawyer experts within their jurisdiction. Instead, they leave such regulation to the relevant professional association governing practicing psychologists.

  23. One of the authors has published a text in which the litigation process is depicted based on a hypothetical case of age discrimination. See M. Allen & M. Finch, An Illustrated Guide to Civil Procedure (2006). While this text is written for law students engaged in the study of civil litigation, much of the litigation story depicted in the text is comprehensible to non-lawyers.

  24. Many trials do not involve a lay jury. Instead, the judge serves as both fact finder and overseer of the trial process.

  25. A “motion” is nothing more than a request that the court order someone to do, or not to do something. Motions can take written form or, if made during a hearing or at trial, can be made orally.

  26. See generally Fed. R. Civ. P. 8.

  27. Procedural rules usually permit several plaintiffs and several defendants to litigate their positions in a single suit, especially when their positions relate to the same factual occurrence.

  28. See generally Fed. R. Civ. P. 26–37.

  29. When a party seeks to either depose or obtain documents from someone who is not a party to the suit, the party’s lawyer will typically serve a “subpoena” on the non-party. See Fed. R. Civ. P. 45. The non-party must respond to the subpoena—either by complying with it or filing formal objections—or risk being held in contempt of court.

  30. See Fed. R. Civ. P. 35. Unlike other discovery tools, formal requests for physical or mental examinations must be approved by the court upon motion by a party. With the exception of such examinations, discovery rules anticipate that the parties will seek and respond to discovery directly without intercession of the court.

  31. See generally, C. Wright & K. Graham, Federal Practice and Procedure, Section 5543 (2007) (discussing how a party’s assertion of his mental or physical condition as a basis for recovery waives any “psychotherapist” privilege otherwise available to the party).

  32. See Fed. R. Civ. P. 56.

  33. It is customary in legal writing to refer to actions by a “party” when, in reality, the action is taken by the party’s lawyer. In discussing expert testimony, references to a “party” are intended in this way.

  34. Id.

  35. See C. Wright, A. Miller, & R. Marcus, Federal Practice and Procedure, Section 2033 (expert witness testimony is discoverable “even as to insights that involve use of the person’s expertise”).

  36. The subpoena often combines the request for a deposition and document production by asking that the deponent bring requested document to the deposition. This is called a “subpoena duces tecum.”

  37. See Fed. R. Civ. P. 26(b)(2). See also Andrew W. Kane, Psychology, Causality, and Court in Psychological Knowledge in Court, supra note 11 at 40–41 (discussing value of obtaining informed consent of patient before participating in discovery).

  38. See id. Other psychologists agree with Kane’s position. See, e.g., B. Rom-Rymer, The Do’s and Don’ts of Working with the Expert Psychologist Witness, 730 P.L.I./Lit. 387 (2005).

  39. See, e.g., Ordon v. Karpie, 223 F.R.D. 33, 36 (D. Conn. 2004); Brandon v. Village of Maywood, 179 F. Supp. 2d 847, 858–60 (N.D. Ill. 2001).

  40. See infra p. 27.

  41. See Advisory Committee Note, 48 F.R.D. at 504.

  42. See id.

  43. See Fed. R. Civ. P. 26(b)(3) (preventing discovery of “documents and tangible things” prepared for litigation unless the party seeking discovery shows “substantial need” for the materials and “undue hardship” in obtaining equivalent materials). This rule does not use the term “work product,” but lawyers commonly use the term to refer materials protected by the rule.

  44. See Fed. R. Civ. P. 26(b)(3) (“a party may obtain [materials] prepared in anticipation of litigation or for trial” only upon a showing that the party “has substantial need of the materials” and is “unable without undue hardship to obtain the substantial equivalent.”)

  45. See Fed. R. Civ. P. 26(g), 37(c).

  46. See M. Costanzo, D. Krauss, & K. Pezdek, Expert Psychological Testimony for the Courts 14 (2007) (observing that “the financial threats to the reliability of the expert testimony are profound.”)

  47. See Andrew W. Kane, Psychology, Causality, and Court in Psychological Knowledge in Court, supra note 11 at 24. See generally S. Bush, M. Connell, & R. Denney, Ethical Practice in Forensic Psychology (2006).

  48. See D. Faigman, D. Kaye, M. Saks, & J. Sanders, Science in the Law: Standards, Statistics and Research Issues, Section 3–4.2.2 (2002).

  49. Whether this tactic can be effective also depends on the rigor of the testifying expert’s examination. The expert has a professional obligation not to give testimony without thoroughly reviewing relevant information. See S. Bush, M. Connell, & R. Denney, Ethical Practice in Forensic Psychology 13–14 (2006).

  50. See Fed. R. Civ. P. 26(b)(4).

  51. See id.

  52. See, e.g., Lugosch v. Condel, 219 F.R.D. 220, 249–50 (N.D. N.Y. 2003). This position represents the majority rule governing discovery of work product provided to experts.

  53. See generally M. Saks, D. Faigman, D. Kaye, & J. Sanders, Annotated Reference Manual on Scientific Evidence 169–70 (2nd ed. 2004).

  54. See id. at 175.

  55. One of the authors was appellate counsel in State Farm Ins. Co. v. Johnson, 880 So. 2d 721 (Fla. 2d DCA 2004), and also filed an amicus curiae brief in Marsh v. Valyou, 940 So. 2d 1125 (Fla. 2006). Both cases addressed the admissibility of evidence about post-traumatic fibromyalgia.

  56. See Fed. R. Evid. 104. While rules governing the admissibility of evidence also apply when the judge serves as fact finder, they are often drafted so as to ensure that lay jurors properly use admitted evidence.

  57. Admissibility decisions may be made at trial as well, in which case the court hears testimony concerning admissibility outside the jury’s presence.

  58. Lay persons’ right to give opinion testimony is strictly limited to testimony “rationally based on the perception of the witness.” Fed. R. Evid. 701. For example, a lay witness is usually permitted to testify that an automobile he observed was “speeding.”

  59. See Fed. R. Evid. 704 (“testimony in the form of an opinion or inference… is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”) Rule 704(b) creates an exception by precluding “ultimate issue” testimony in criminal cases concerning a defendant’s “mental state or condition” that is an element of the crime.

  60. Fed. R. Evid. 702.

  61. See C. Wright & V. Gold, 29 Federal Practice and Procedure, Section 6264 (2007).

  62. Fed. R. Evid. 702. The process of examining the expert in court to determine qualification is sometimes referred to as “voir dire.” A somewhat similar process of voir dire is used to determine whether jurors are qualified to serve. Mandatory disclosure rules like those discussed earlier also provide the parties and the court information with which to assess qualification.

  63. See D. Faigman, D. Kaye, M. Saks, & J. Sanders, Science in the Law: Standards, Statistics and Research Issues, Section 1–3.3.1 (2002).

  64. See, e.g., Grenitz v. Tomlian, 858 So. 2d 999 (Fla. 2003).

  65. See id. at 1001–1002.

  66. See generally Michael S. Finch, Law and the Problem of Pain, 74 U. Cinn. L. Rev. 285 (2005).

  67. See D. Lorandos & T. Campbell, Benchbook in the Behavioral Sciences 47 (2005).

  68. That said, some courts give undue deference to professional credentials without adequately scrutinizing the expert’s actual knowledge base. See Paul Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half Century Later, 80 Colum. L. Rev. 1197, 1210 (1980).

  69. See, e.g., Reichert v. Phipps, 84 P.3d 353, 358–59 (Wy. 2004) (experts were unfamiliar with the consensus report on fibromyalgia); Jones v. Conrad, No. CA2000–12–257, 2001 WL 1001083, *3 (Oh. Ct. App. Sept. 4, 2001) (expert could not name studies supporting opinion on traumatically induced fibromyalgia and was unfamiliar with consensus report).

  70. The terms “valid” or “reliable” to describe the admissibility standard under Daubert and the federal rules are not used in the stricter scientific sense.

  71. Sir Austin Bradford Hill, The Environment and Disease: Association or Causation? 58 Proceedings of the Royal Society of Medicine 295 (1965).

  72. One reason may be the courts’ lack of understanding of the scientific meaning of core Daubert concepts like “falsifiability.” See S. Dobbin, et al., Applying Daubert: How Well do Judges Understand Science and Scientific Method? 85 Judicature 244–47 (2002).

  73. This development has been observed, for example, in courts’ use of medical testimony. See Jerome P. Kassirer & Joe S. Cecil, Inconsistency in Evidentiary Standards for Medical Testimony: Disorder in the Courts, 288 J. Am. Medical Ass’n 1382 (2002) (“The courts appear to be asserting standards that they attribute to the medical profession, but that are inconsistent and sometimes more demanding than actual medical practice….Courts are misled if they think they are representing medical practice.”)

  74. An illustration from fibromyalgia litigation is some courts’ insistence that litigants show “the physiological process by which a particular disease or syndrome develops” before causation testimony is admissible. See, e.g., Black v. Food Lion, 171 F.3d 308, 314 (5th Cir. 1999); Vargas v. Lee, 317 F.3d 498, 501 (5th Cir. 2003). This requirement, if taken seriously, would preclude a great deal of epidemiological proof since, at most, epidemiologists require “biologic plausibility” rather than knowledge of a disease’s specific biological mechanisms. See Douglas L. Weed & Stephen D. Hursting, Biologic Plausibility in Causal Inference: Current Method and Practice, 147 Am. J. Epidemiology 415, 416 (1998).

  75. The most influential text on methodology is the Reference Manual on Scientific Evidence, published by the Federal Judicial Center. The manual includes relatively sophisticated introductions to topics like statistics, epidemiology, toxicology, and medical testimony. Unfortunately, it does not include an entry on behavioral science.

  76. See generally Note, Navigating Uncertainty: Gatekeeping in the Absence of Hard Science, 113 Harv. L. Rev. 1467 (2000).

  77. See, e.g., Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Bendectin Litigation, 86 N.W. L. Rev. 643, 659–62 (1992); Peter H. Schuck, Multi-Culturalism Redux: Science, Law, and Politics, 11 Yale L. & Pol’y Rev. 1, 7–11 (1993); Donald A. Lawson, Hopkins v. Dow Corning Corporation: Silicone and Science, 37 Jurimetrics 53, 56–68 (1996).

  78. See Carl Cranor, Scientific Inferences in the Laboratory and the Law, 95 Am. J. Public Health S121 (2005) (discussing the “mixed record” of federal courts in assessing the value of clinical evidence under Daubert).

  79. See Christopher Slobogin, Pragmatic Forensic Psychology: A Means of “Scientizing” Expert Testimony from Mental Health Professionals? 9 Psychol. Pub. Pol’y & L. 275, 287 (2003); Christopher Slobogin, Doubts About Daubert: Psychiatric Anecdata as a Case Study, 57 Wash. & Lee L. Rev. 919 (2000).

  80. Professor Slobogin has characterized behavioral science experts in criminal trials as “at best, engaging in informed speculation, not reporting data obtained through rigorous scientific methods.” The Admissibility of Behavioral Science Information in Criminal Trials: From Primitivism to Daubert to Voice, 5 Psychol. Pub. Pol’y & L. 100, 101 (1995).

  81. See M. Brodin, Behavioral Science Evidence in the Age of Daubert: Reflections of a Skeptic, 73 U. Cinn. L. Rev. 867, 869 (2005) (“derived not from experimentation but observation, there is serious question as to whether much of this behavioral science evidence can meet the Daubert definition of reliable science.”) At least one observer has expressed surprise there is not a greater amount of research addressing issues pertinent to psychological injury. He observes, “[c]onsidering the enormous amount of activity occurring in compensation assessments, it is surprising that the evidence base for much of this activity is limited.” R. Bryant, Assessing Individuals for Compensation in Handbook of Psychology in Legal Contexts 102 (2003).

  82. For example, one of the leading treatises on scientific evidence devotes an entire volume to “social and behavioral science issues.” See D. Faigman, D. Kaye, M. Saks, & J. Sanders, Science in the Law: Social and Behavioral Science Issues (2002). Yet, there is little treatment of diagnoses more pertinent to psychological injury in the civil setting. Post-traumatic Stress Disorder is briefly discussed, but chronic pain, traumatic brain injury, and the somatoform disorders are not considered.

  83. A brief review of Daubert disputes concerning forensic psychology testimony reveals that lawyers are in fact focusing on the research foundation of testimony. Cases reported in the leading online resource for information on Daubert challenges, http://www.dauberttracker.com, show that courts increasingly address the sufficiency of published research underlying expert testimony. See, e.g., Pleasant Glade Assembly of God v. Schubert, 174 S.W.3d 388 (Tex. App. 2005) (“If the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base on opinion on the data because any opinion drawn from that data is likewise unreliable”); Blansett v. BP Exploration & Oil, Inc, 2002 Ohio 4757 (Ohio Ct. App. 2002) (discussing a challenge to testimony of Post-traumatic Stress Disorder because of “inadequate testing” of the alleged causal link between toxic chemicals and PTSD).

  84. In the next issue of the Journal, the authors will report their findings from a systematic review of Daubert challenges involving claims of psychological injury.

  85. United States v. Hall, 93 F.3d 1337, 1342 (7th Cir. 1996).

  86. The same seems true of the International Classification of Diseases, currently the ICD-10.

  87. See, e.g., A. Houts, Discovery, Intervention, and the Expansion of the Modern Diagnostic and Statistical Manual of Mental Disorders in Rethinking the DSM 17, 56 (2002) (“Much of the so-called empirical evidence to bolster DSM-IV has been amassed under the conditions of accepting diagnostic criteria that have not been tested against other criteria but that have made their way into the research literature by way of expert consensus and tradition.”)

  88. For a discussion of the argument that the DSM may not satisfy Daubert, see D. Lorandos & T. Campbell, Benchbook in the Behavioral Sciences 121–32 (2005).

  89. See generally Andrew W. Kane, Psychology, Causality, and Court in Psychological Knowledge in Court, supra note 11 at 18–19 (2006) (discussing various assessment instruments and supporting research for PTSD, chronic pain, and traumatic brain injury); B. Rom-Rymer, The Do’s and Don’ts of Working with the Expert Psychologist Witness, 730 P.L.I./Lit. 387 (2005) (discussing issues that arise when psychological tests are used in court); see also S. Erickson, S. Lilienfeld, & M. Vatacco, A Critical Examination of the Suitability and Limitations of Psychological Tests in Family Court, 45 Family Court Rev. 157, 164 (2007) (questioning use of Rorschach ink blot test in family court).

  90. See D. Lorandos & T. Campbell, Benchbook in the Behavioral Sciences 232 (2005); M. O’Connor, Expert Testimony in Sexual Harassment Cases: Its Scope, Limits, and Effectiveness, in M. Costanzo, D. Krauss, & K. Pezdek, Expert Psychological Testimony for the Courts 136 (2007) (noting the absence of a single assessment tool to relate sexual harassment to psychological disorders).

  91. See D. Faigman, D. Kaye, M. Saks, & J. Sanders, Science in the Law: Social and Behavioral Science Issues 48 (2002) (“For most psychiatric disorders, the DSM criteria are silent with respect to specific etiology.”) Post-traumatic Stress Disorder is the most noteworthy exception.

  92. See, e.g., Troy Brennan, Causal Chains and Statistical Links: The Role of Scientific Uncertainty in Hazardous-Substance Litigation 469, 483–501 (1988). In the classic “slip and fall” case, courts have understandably shown a lenient attitude toward scientific evidence of causation and even dispensed with the need for expert testimony at all. See Note, Navigating Uncertainty: Gatekeeping in the Absence of Hard Science, 113 Harv. L. Rev. 1467, 1473 (2000) (observing that in “slip and fall” cases “courts have customarily... felt comfortable admitting causation testimony that lacks true scientific rigor but that is supported by a combination of ‘reasonable medical certainty,’ physician expertise, and adherence to standard diagnostic techniques.”)

  93. See Peter W. Huber, Galileo’s Revenge: Junk Science in the Courtroom 39–56 (1991).

  94. See Charles Hennessy, Multiple Sclerosis After Trauma/Whiplash, 2 J. Personal Injury L. 133 (2002).

  95. See Coronary Episode (Heart Attack) As a Result of Physical Trauma, 14 Am. Jur. Proof of Facts 3d 241 (2003).

  96. See Generalized Anxiety Disorders, 27 Am. Jur. Proof of Facts 3d 1 (2003).

  97. See Major Depressive Disorder, 26 Am. Jur. Proof of Facts 3d 1 (2003).

  98. See Post-Traumatic Stress, 49 Am. Jur. Proof of Facts 2d 73 (2003).

  99. See F. Wolfe, Special Report: The Fibromyalgia Syndrome: A Consensus Report on Fibromyalgia and Disability, 23 J. Rheumatology 534, 535 (1996).

  100. See Damages: Traumatic Aggravation of Preexisting Mental Disorder, 12 Am. Jur. Proof of Facts 323 ‘5 (2003).

  101. Andrew Malleson, Whiplash and Other Useful Illnesses 211 (2003).

  102. See Michael S. Finch, Law and the Problem of Pain, 74 U. Cinn. L. Rev. 285, 314 (2005).

  103. See Michael S. Finch, Law and the Problem of Pain, 74 U. Cinn. L. Rev. 285, 314 (2005). Compare R. Melzack & J. Katz, Pain in the 21st Century: The Neuromatrix and Beyond in G. Young, A. Kane, & K. Nicholson, Psychological Knowledge in Court 18–19 (2006).

  104. See Kennedy v. Unumprovident Corp, 50 Fed. Appx. 354 (9th Cir. 2002).

  105. See Michael S. Finch, Law and the Problem of Pain, 74 U. Cinn. L. Rev. 285, 292–98 (2005). As discussed in this article, even federal judges sometimes fail to distinguish between somatoform disorders and symptom falsification. Id. at 299–300.

  106. See, e.g., R. Bryant, Assessing Individuals for Compensation in Handbook of Psychology in Legal Contexts 92–93 (2003) (discussing the research foundation for causal claims concerning PTSD).

  107. See M. Henefin, H. Kipen, & S. Poulter, Reference Guide on Medical Testimony in Annotated Reference Manual on Scientific Evidence (Second) 630 (2004) (discussing role of general causation evidence in determining specific causation).

  108. A “general causation” proposition often evolves into a more complex sub-set of propositions, each of which is subject to challenge. For example, the proposition, “trauma can cause widespread, chronic pain” is too undiscriminating. The suspected causal agent, “trauma,” is not a homogeneous phenomenon. Trauma can be physical or emotional, trauma can be severe or minor, trauma can result from child birth or an auto accident, and trauma can be recent or months old. Similarly, “widespread, chronic pain” can be broken down into a variety of diagnoses and symptoms. Consequently, disputes about general causation often grow more sophisticated with the evolution of case law and science.

  109. See, e.g., Westberry v. Gummi, 178 F.3d 257, 263 (4th Cir. 1999).

  110. See, e.g., Cavallo v. Star Enterprise, 892 F. Supp. 756 (E.D. Va. 1995). The requirement of general causation evidence has obvious similarities with evidence-based medicine and evidence-based psychology.

  111. At least one court has taken general causation to the extreme. In an unpublished decision, In the Interest of M.C.M., C.M.M., J.L.M., & L.S.M., 57 S.W. 3d 27 (Tex. App. 2001), the court asked of an expert, “Can you name one empirical study that has ever proven the unconscious to exist?” The court was ultimately willing to take “judicial notice that the unconscious does exist. This case can be found at http://www.dauberttracker.com.

  112. For example, early research relating sexual harassment to psychological injury was “largely anecdotal, case study, or nonrepresentative samples.” See M. O’Connor, Expert Testimony in Sexual Harassment Cases: Its Scope, Limits, and Effectiveness, in M. Costanzo, D. Krauss, & K. Pezdek, Expert Psychological Testimony for the Courts 134 (2007). Today there are more “systematic and longer term studies.” Id. Another example is drawn from expert testimony of “lie detection.” One commentator argues that, while the “ecological validity” of lie-detection research remains in doubt, it may have sufficient validity to justify its admission in civil litigation (although not in criminal proceedings). See A. Vrij, The Assessment and Detection of Deceit in Handbook of Psychology in Legal Contexts 83 (2003).

  113. Some courts distinguish the concepts of “differential diagnosis” and “differential etiology.” The term “differential etiology” may be used when the issue is causation rather than classification of an injury.

  114. The US Supreme Court has indicated that an expert should employ in the courtroom “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” See Kumho Tire, Ltd. v. Carmichael, 526 US 137 (1999).

  115. See M. Costanzo, D. Krauss, & K. Pezdek, Expert Psychological Testimony for the Courts 26–27 (2007).

  116. See Alice Lustre, Annotation, Post-Daubert Standards for Admissibility of Scientific and Other Expert Evidence in State Courts, 90 A.L.R. 5th 453, Section 2 (2005) (reporting that “[t]wenty-five states have affirmatively adopted the Daubert or similar test for use in their courts... Fifteen states and the District of Columbia adhere to Frye... Six states have not rejected Frye in toto but apply the Daubert factors... and four states have developed their own tests.”)

  117. See E. Cheng & A. Yoon, Does Frye or Daubert Matter? A Study of Scientific Admissibility Standards, 91 Va. L. Rev. 471 (2005).

  118. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

  119. See D. Faigman, Expert Evidence and Psychological Expertise 383–84 in Handbook of Psychology in Legal Contexts 83 (2003).

  120. The research is summarized in Cheng & Yoon, supra.

  121. See, e.g., Burke v. Town of Walpole, 405 F.3d 66, 91 (1st Cir. 2005) (suggesting that the commonly understood meaning of phrase is “more probable than not” while recognizing the term’s plasticity).

  122. See Jeff Lewin, The Genesis and Evolution of Reasonable Uncertainty about “Reasonable Medical Certainty,” 57 Md. L. Rev. 380 (1998).

  123. Id.

  124. See In re Ephedra Products Liability Litigation, 393 F. Supp. 2d 181, 187 (S.D. N.Y. 2005).

  125. Most legal journals published by American law schools are edited by students with relatively modest faculty oversight. While this tradition has been sorely criticized, it persists. See, e.g., Richard Posner, The Future of the Student-edited Law Review, 47 Stan. L. Rev. 1131 (1995).

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  1. Carol Henderson

    Present address: National Clearinghouse for Science, Technology and the Law, Stetson University, College of Law, Gulfport, FL, USA

Authors and Affiliations

  1. College of Law, Stetson University, Gulfport, FL, USA

    Michael Finch & Carol Henderson

  2. National Clearinghouse for Science, Technology and the Law, Stetson University, College of Law, Gulfport, FL, USA

    Catherine Guthrie

  3. American Academy of Forensic Sciences, Colorado Springs, CO, USA

    Carol Henderson

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The authors employ the style of footnoting throughout this article used in legal literature. Readers from other professions might wish to know that legal style often includes substantive footnotes, which further explain points made in the text.

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Finch, M., Guthrie, C. & Henderson , C. Expert Testimony on Psychological Injury: Procedural and Evidentiary Issues. Psychol. Inj. and Law 1, 20–35 (2008). https://doi.org/10.1007/s12207-007-9001-0

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