Rodriguez v. Wal-Mart Stores, Inc.

          Argued April 3, 2017

         On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-844-12.

          Andrew 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).

          Before Judges Sabatino, Nugent and Haas.

          OPINION

          SABATINO, P.J.A.D.

         Plaintiff 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 and damages.

         For the 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).

         A 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.^[1]

         I.

         Plaintiff 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^[2] 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.

         The 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 gravity.

         Plaintiff 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.

         Although 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.

         Plaintiff 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.

         Plaintiff 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.

         Wal-Mart 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.

         During 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.

         Plaintiff 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.

         Aside 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.

         In its 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.

         Plaintiff 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.

         II.

         The 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).

         A.

          During 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 hours.

         The 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.

         The 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[.]"

         The 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.

         Prior 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.

         The 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.

         After 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."

         The 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.

         The 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."

         B.

         At that 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 ...