April 3, 2017
appeal from Superior Court of New Jersey, Law Division,
Gloucester County, Docket No. L-844-12.
A. Ballerini argued the cause for appellant.
Patrick J. McDonnell argued the cause for respondents
(McDonnell & Associates, P.C., attorneys; Mr. McDonnell,
Kailee H. Farrell and Gwyneth R. Williams, on the brief).
Judges Sabatino, Nugent and Haas.
in this personal injury case appeals on several grounds from
a no-cause jury verdict. Among other things, plaintiff argues
that she was unduly prejudiced by the admission, over her
objection, of extensive testimony from a defense medical
expert opining that she had magnified her symptoms and her
alleged injuries from the accident. The testifying doctor was
not a psychiatrist, psychologist, or other mental health
specialist. Plaintiff contends that the admission of this
expert testimony unfairly impugned her overall credibility
and thereby deprived her of a fair trial on both liability
reasons that follow, we conclude that the expert's
opinions on symptom magnification were improperly admitted,
and that plaintiff was sufficiently prejudiced by that ruling
to be entitled to a new jury trial on all issues. In doing
so, we adopt the reasoning of other jurisdictions that have
disallowed such expert opinions about symptom magnification,
malingering, or other equivalent concepts in civil jury
cases, including the Eighth Circuit's seminal opinion in
Nichols v. American National Insurance Company, 154
F.3d 875 (8th Cir. 1998).
qualified expert is not precluded, however, from providing
factual testimony recounting observations the expert made
about plaintiff's physical movements or responses to
testing during an examination, subject to exclusionary
arguments under N.J.R.E. 403 that may be asserted on a
case-specific basis. Nor is a qualified expert precluded from
testifying that a plaintiff's subjective complaints
appear to be inconsistent with objective medical test results
or findings. In addition, we do not foreclose the admission
of opinion testimony concerning symptom magnification or
similar concepts from a qualified expert in a non-jury case,
also subject to Rule 403.
Alexandra Rodriguez claims that she was injured when a metal
rack display (known in the retail field as an
"endcap") suddenly fell on her when she was
shopping at a Wal-Mart store in Turnersville on June 6, 2010.
Photographs taken after the incident show that there were
garments on racks attached to the endcap. According to
plaintiff's liability expert, a professional engineer,
the portion of the rack that allegedly fell on plaintiff,
inclusive of the displayed clothing, weighed approximately
141 to 157 pounds.
endcap is designed to be secured by a single metal clip at
the top and two clips at the bottom. The top clip slides into
a vertical metal frame, held in place with the assistance of
described the incident on several occasions, doing so with
varying details. A few days after the incident, plaintiff
stated in an interview that she did not hit the endcap shelf
as she turned the corner with her shopping cart. At her later
deposition, she testified that she "nipped" the
shelf, and that the basket on her cart struck the
fixture's horizontal bars. In her trial testimony,
plaintiff could not recall stating that she had hit her cart
against the rack. She was unclear about what portion of her
body came into contact with the display when it fell.
plaintiff was accompanied at the store by a friend and her
teenage daughter, neither of them testified at trial. No
store personnel witnessed the endcap fall. Store employees
did attend to plaintiff after the incident, and called for
medical assistance. Plaintiff reported pain in her right arm,
and was taken to a local emergency room.
was treated by several doctors following the incident. A
post-accident MRI study revealed a right upper ulnar
neuropathy. Plaintiff contends that condition was caused by
the incident, whereas Wal-Mart disputes such alleged
causation. Eventually in 2013, plaintiff had a spinal cord
stimulator implanted to relieve what she contends was her
persisting pain. She also complained of swelling of her hands
and other lingering conditions.
presented medical testimony at trial from several experts.
They included an orthopedic surgeon, a neurologist, and a
family medicine practitioner with expertise in what is known
as Complex Regional Pain Syndrome ("CRPS"). The
latter expert diagnosed plaintiff with "Type 2"
CRPS. He further opined that her condition, despite treatment
efforts, was likely to be permanent.
denied plaintiff's contentions of liability and
compensable injury. With respect to liability, Wal-Mart
disputed that the endcap was in a dangerous condition. The
company also disputed that the fixture actually fell on
plaintiff and, as she alleged, trapped her. Among other
things, the defense presented testimony from an employee
familiar with maintenance at the store, who stated that the
endcap had not been noticed to be unstable or hazardous
before plaintiff's alleged incident.
defense counsel's cross-examination of plaintiff's
liability expert at trial, the engineer acknowledged that it
would have been physically impossible for the display to fall
had it merely been bumped by plaintiff's shopping cart.
The engineer also acknowledged that, if the display fell, it
would not have landed solely on plaintiff, but also would
have contacted the opposite wall.
contended that these particular statements by her liability
expert are not dispositive, arguing that there were ample
factual grounds for a jury to find that the store is liable
for the happening of this accident. She requested, and the
trial court issued, an instruction advising the jury that
there was no proof of comparative negligence on her part. In
addition, plaintiff requested a jury charge on the doctrine
of res ipsa loquitor. Over Wal-Mart's objection, the
trial court issued that charge, albeit with a modification we
discuss in Part III, infra.
from liability, Wal-Mart also presented competing proofs on
damages. It called several medical experts to support its
theory that plaintiff was not injured in the alleged
accident, and that the physical symptoms and sensations she
complained of were caused either by other accidents or by her
underlying physical and psychological conditions.
verdict, the jury unanimously determined that plaintiff
failed to meet her burden of proving Wal-Mart's
liability. The jury consequently did not address the damages
questions on the verdict form.
now appeals, raising several issues of claimed error. Those
issues, which we list in a different order than presented in
her brief, include: (1) improper and unduly prejudicial
admission of the defense neurologist's testimony on
"symptom magnification" and similar concepts; (2)
improper and unduly prejudicial admission of testimony by
another defense medical expert attempting to discredit the
general viability of a diagnosis of CRPS; (3) improper
admission of evidence of plaintiff's prior accidents and
injuries; (4) failure to omit from the res ipsa jury charge a
reference to a plaintiff's "voluntary act"; (5)
other trial errors; and (6) cumulative error.
admissibility at a civil jury trial of "symptom
magnification, " or equivalent opinion testimony, from a
defense medical expert raises an issue of first impression
that has not been decided in any prior reported case in this
state. Because this is a legal issue, we review the trial
court's ruling on the subject de novo. Royster v.
N.J. State Police, 227 N.J. 482, 493 (2017);
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995).
its defense case, Wal-Mart proffered testimony from a medical
expert, a neurologist, who had examined plaintiff almost a
year before the trial. The medical examination took about two
record shows that this defense expert had substantial
credentials in several disciplines. He was board-certified in
neurology, internal medicine, and electrical studies of the
brain. He completed a residency in neurology at Duke
University, as well as a fellowship in disorders of the
electrical activity of the brain and the spine. As of the
time of his testimony, the expert had privileges at two New
Jersey hospitals, and practiced adult neurology full time.
expert admittedly was not a psychiatrist or psychologist,
although he noted that he had treated patients with both
neurological problems and psychological problems. The expert
asserted that there was some "overlap" between the
disciplines of psychiatry and neurology, but conceded that
the certification requirements of those two respective
specialties were "very, very different[.]"
trial court deemed the expert qualified in the respective
fields of neurology, internal medicine, and electrical
studies of the brain. Plaintiff's counsel did not object
to this finding of the expert's qualifications.
to the neurologist addressing symptom magnification and other
related topics, plaintiff raised an objection to the expert
presenting opinions on such matters. The trial court
accordingly conducted a hearing pursuant to N.J.R.E. 104,
outside of the jury's presence, at which the expert was
questioned by both counsel. The expert enhanced his testimony
with demonstrative slides, with highlights of key points,
which he had personally prepared to display to the jurors.
defense expert opined that the symptoms of persisting pain
plaintiff complained of were inconsistent in several respects
with his observations of her during her medical examination,
and also with certain aspects of the objective studies,
including the MRI. More specifically, the expert stated that
the patient's responses were consistent with what he
referred to as "somatization, " which he described
as "a process where individuals describe experiencing
symptoms of various types that are not accompanied by
objective findings and interpretations." However, the
expert did not formally diagnose plaintiff with a somatoform
disorder, acknowledging at the Rule 104 hearing that
he would need to involve a mental health expert to confirm
such a diagnosis. The expert also stated that, in his
opinion, plaintiff was magnifying her symptoms.
the trial court heard the expert's proposed testimony,
counsel presented arguments on plaintiff's motion to
exclude the expert's opinions on "symptom
magnification" or equivalent concepts. During that
colloquy, plaintiff's counsel cited to the trial court
the Eighth Circuit's decision in Nichols,
supra, 154 F.3d at 884, which disallowed such
opinion testimony where it is used as a "thinly veiled
comment on a witness'[s] credibility."
trial court overruled plaintiff's objection. At the
outset of its ruling, the court did acknowledge that, as a
general proposition, "we can't have witnesses that
testify to what they think [is] somebody's
credibility." Nonetheless, the court found no bar to the
defense neurologist opining that there was "no objective
basis" to support plaintiff's expressed complaints
and that she thereby was "exaggerating." The court
concluded that the expert had provided a sufficient
foundation within his fields of expertise to present opinions
on such matters.
trial court did not address in its oral ruling
plaintiff's citation of Nichols. Nor did it
discuss any considerations of alleged undue prejudice under
N.J.R.E. 403, which, as plaintiff's counsel had argued,
can justify the exclusion of otherwise-admissible evidence.
Even so, the court implicitly recognized at least the
potential for the jurors to place undue reliance on the
expert's opinions because it announced, sua
sponte, that it would provide a cautionary instruction
to the jurors. That instruction would remind the jurors that,
ultimately, it is their function "to judge the
credibility of the plaintiff."
point, the jurors returned to the courtroom and the defense
neurologist resumed his testimony. We present here, in
excerpted form, some of the key portions of the expert's
opinions on symptom magnification and cognate subjects:
[DEFENSE COUNSEL]: All right Doctor. I think there's,
left off at the slide that's, kind of conclusions
about what you're able to determine after your exam.
First of all were you able to determine one way or the other
whether there was a soft tissue injury to the right side of
her neck or her right arm?
A: Yeah, the character of her initial complaints would make
sense for that. So she mostly like did have a strains
involving the right neck area, possibly the right shoulder
region. And she may have even bruised her right arm, although
there was no evidence of any external trauma.
Q: And again was that, her complaint or subjective, was that
supported by any contemporaneous medical records in that they
observed any sort of spasm of the neck or bruising of the arm
or anything like that?
A: I think the only description initially was that she had
some tenderness in those areas, but there was no described
swelling, bruises, contusions, lacerations, anything
objectively they could see.
Q: And did she sustain any disc herniation as a result of
anything that ...