In a case of first impression, a New Jersey appellate court issued a “bright line” rule disallowing expert opinion on the concept of symptom magnification, malingering, or any other negative terminology impugning a plaintiff’s believability.  

In Rodriguez v. Wal-Mart Stores, Inc., the plaintiff filed suit after she allegedly sustained injuries in an un-witnessed incident involving a metal display rack alleged to have fallen on her while shopping.  At trial, the plaintiff’s medical experts diagnosed Complex Regional Pain Syndrome.  The defense presented the testimony of an expert neurologist who testified that the plaintiff had some initial soft tissue injury but no damage to her nerves.  He denied that the plaintiff had any objective findings to support the diagnosis of Complex Regional Pain Syndrome.  Further, he opined that the plaintiff was exaggerating and magnifying her injury symptoms.  The jury returned a defense verdict.

On appeal, the court found that the defense expert’s opinion was an improper attack on the plaintiff’s overall credibly. Ultimately, the Appellate court held that such opinion evidence from a doctor should be categorically disallowed at trial.

The Rodriguez opinion is important since it will restrict defense medical experts from classifying a plaintiff as a malingerer during trial. We note that a qualified expert may still testify that a plaintiff’s subjective complaints appear to be inconsistent with objective medical testing, without using labels such as “malingerer” or “symptom magnification.”  Going forward, it will be important for defense expert witnesses to properly frame any testimony surrounding inconsistent subjective complaints so that the testimony will be admissible at trial. 

Thanks to Heather Obregon for her contribution.

For more information, contact Denise Fontana Ricci at .