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Rodriguez v. Wal-Mart Stores, Inc.

Supreme Court of New Jersey

March 4, 2019

Alexandra Rodriguez, Plaintiff-Respondent/Cross-Appellant,
v.
Wal-Mart Stores, Inc., and/or Wal-Mart Stores East, LP, and/or Wal-Mart Stores East I, LP, Defendants-Appellants/Cross-Respondents.

          Argued September 13, 2018

          On certification to the Superior Court, Appellate Division.

          Michael K. Furey (Day Pitney) argued the cause for appellants/cross-respondents (Day Pitney and McDonnell & Associates, attorneys; Michael K. Furey, Kevin J. Duffy, and Patrick J. McDonnell, on the briefs).

          Andrew A. Ballerini argued the cause for respondent/cross-appellant (Andrew A. Ballerini and Richard T. Talbot, on the briefs).

          Katelyn E. Cutinello argued the cause for amicus curiae New Jersey Defense Association (Cocca & Cutinello, attorneys; Katelyn E. Cutinello and Anthony Cocca, of counsel and on the brief).

          Bruce H. Stern argued the cause for amicus curiae New Jersey Association for Justice (Stark & Stark, attorneys; Bruce H. Stern, of counsel and on the brief).

          SOLOMON, J., writing for the Court.

         While shopping in a store owned and operated by defendant Wal-Mart Stores, Inc., plaintiff Alexandra Rodriguez was struck by a falling clothing display rack. She later brought a negligence suit against Wal-Mart. In this appeal, the Court considers whether defendant's medical experts should have been precluded from using terms like "somatization" and "symptom magnification" in their trial testimony. The Court also considers whether the trial court abused its discretion by admitting into evidence at trial plaintiff's past medical history, including her psychiatric history.

         Plaintiff sought treatment for ongoing pain with Dr. Steven Kahn, who performed nerve decompression surgery. When her symptoms recurred, Dr. Kahn referred plaintiff to Dr. Phillip Getson, a physician specializing in the treatment of Chronic Regional Pain Syndrome (CRPS). Dr. Getson diagnosed plaintiff with CRPS.

         Rodriguez filed a complaint asserting that Wal-Mart's negligence caused her pain and CRPS. Relying upon N.J.R.E. 401 and 403, plaintiff's counsel moved to exclude testimony about plaintiff's prior medical treatment for obstetric/gynecological issues, chronic abdominal pain, and psychiatric and psychological disorders. The court denied the motions.

         Dr. Getson and Robert Knobler, M.D., Ph.D., a neurologist, were called by plaintiff's counsel. Dr. Getson explained that when diagnosing CRPS one must "look[] and see that there really is no other explanation that better suits . . . the symptom complex, the history and the physical examination, than [CRPS]." Plaintiff's counsel asked Dr. Getson whether he believed plaintiff was "somaticizing" in light of her history of depression and whether her history of "psychiatric familial issues" could have caused her CRPS. Dr. Getson acknowledged that plaintiff experienced "abuse issues . . . as a child" but concluded that her psychological issues had nothing to do with her CRPS diagnosis. Dr. Knobler opined that if plaintiff's CRPS were "psychologically caused, it would have manifested itself much earlier" than it did. He also discussed plaintiff's prior medical treatment for chronic abdominal pain and obstetric/gynecological problems. Dr. Kahn, plaintiff's treating orthopedic surgeon, confirmed that a physician must "go through the exhaustive list of the differential diagnoses" and rule them out when considering CRPS. During one of plaintiff's office visits, Dr. Kahn observed her exhibiting "overt signs of . . . pain out of proportion," which led him to consider CRPS as a possible cause of her pain.

         Dr. Benjamin Mark, a board-certified neurologist and internist who examined Rodriguez in his office about one year before trial, took the stand as Wal-Mart's first medical expert witness. Without objection from plaintiff's counsel, the court deemed Dr. Mark qualified in the fields of neurology, internal medicine, and electrical studies of the brain. During his direct examination, Dr. Mark recalled that while he was examining plaintiff in his office, she complained that "anything touching [her] skin throughout the arm" caused her more pain. He explained that when he touched plaintiff's right arm, she "screamed and yelled that it was horrible." Dr. Mark also observed that, "throughout the interview [plaintiff's partner] was constantly rubbing [plaintiff's] right arm, trying to comfort her . . . [a]nd she didn't flinch." Dr. Mark opined that he could not find "anything objective aside from [her] subjective complaints of pains," adding that her symptoms "[did] not make clinical sense neurologically." The trial court allowed Dr. Mark to testify about somatization and, subject to the judge's limiting instruction, about symptom magnification.

         At the close of the parties' evidence, the court reminded the jury that "one of the most important things that [a juror] need[s] to do is to decide on credibility." He also charged the jurors that only they determine the existence of facts upon which an expert relies and an expert's credibility. The jury unanimously determined that plaintiff failed to prove by a preponderance of the evidence that Wal-Mart was negligent and thus liable for her injuries.

         In a partially published opinion, the Appellate Division reversed the jury verdict and remanded the case for a new trial. 449 N.J.Super. 577, 599 (App. Div. 2017). The appellate panel held that expert testimony from a doctor, presented as a medical opinion, that "characterizes a plaintiff as a 'malingerer' or a 'symptom magnifier,' or some other negative term impugning the plaintiff's believability" is "categorically disallowed" at a civil jury trial under N.J.R.E. 403. Id. at 596. The Appellate Division also found the trial court's limiting instruction insufficient to "ameliorate the undue harm of admitting the expert opinion." Id. at 598. With respect to Dr. Mark, the appellate panel determined that he was not qualified to testify about "symptom magnification and related concepts" because he "lacked appropriate qualifications." Id. at 597 n.9. In the remaining, unpublished portion of the Appellate Division opinion, the panel concluded that the trial court did not abuse its discretion by admitting evidence of plaintiff's past medical history.

         The Court granted Wal-Mart's petition for certification and thus considers whether the Appellate Division erred when it adopted a bright-line rule categorically disallowing medical experts from using terms like "somatization," "symptom magnification," and "malingering." 230 N.J. 584 (2017). The Court also granted Rodriguez's cross-petition for certification limited "to the trial court's admission of evidence of her prior medical history that was unrelated to [her] claimed injuries." 230 N.J. 565 (2017).

         HELD: The admissibility of medical expert testimony utilizing terms such as "somatization" and "symptom magnification" must be determined by trial courts on a case-by-case basis, consistent with N.J.R.E. 403, and there was no abuse of discretion in the trial court's allowing use of those terms under the circumstances of this case. The Court disagrees with the Appellate Division's equation of the terms used by the experts with the term "malingering." The Court also disagrees with the panel's determination that one of defendant's experts, who is a neurologist rather than a mental-health specialist, was not qualified to testify about somatization or symptom magnification. The Court concurs, however, with the Appellate Division's determination that the trial court did not abuse its discretion in admitting into evidence at trial plaintiff's past medical history.

         1. The trial court's decision to admit the disputed terms -- "somatization" and "symptom magnification" -- and plaintiff's past medical history depends first upon their relevancy. Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Relevant evidence is inadmissible under N.J.R.E. 403 when its probative value is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case. Determinations of admissibility under N.J.R.E. 401 and 403 are fact-specific evaluations of the evidence in the setting of the individual case. With respect to expert opinion testimony, the balancing test under N.J.R.E. 403 is a delicate situation that requires the trial court to carefully weigh the testimony and determine whether it may be unduly prejudicial. (pp. 25-28)

         2. The Court reviews the definitions of "somatization," "symptom magnification," and "malingering." (pp. 28-30)

         3. Dr. Mark's testimony on "somatization" and "symptom magnification" is relevant because "somatization" was first described in detailed testimony by plaintiff's medical expert, because Dr. Mark's testimony challenged plaintiff's theory of causation in this negligence action, and because CRPS is a diagnosis of exclusion that required Rodriguez's physicians to rule out all of her previous mental health issues and accidents as possible factors prior to reaching a CRPS diagnosis. By itself, the term "somatization" does not suggest to the average juror that plaintiff may have been lying about her injuries. There was sufficient credible evidence for a jury to conclude that plaintiff's subjective complaints of pain were inconsistent with the objective medical evidence. Under these circumstances, the trial court did not abuse its discretion when it admitted Dr. Mark's testimony about "somatization." (pp. 30-34)

         4. Unlike "somatization," "symptom magnification" is not defined in the medical literature, and the term itself may implicate credibility. Legitimate concern that the term, when used by a medical expert, may implicate credibility does not justify a bright-line rule barring its use by a medical expert. As was done by the trial judge here, courts should conduct a fact-specific evaluation of the evidence in the setting of the individual case to determine the admissibility of prejudicial evidence. Given the inconsistencies between the objective medical evidence and Rodriguez's subjective complaints of pain, Dr. Mark's testimony about his observations of hypersensitivity, and Dr. Kahn's mention of Rodriguez's "overt signs of . . . pain out of proportion," any risk of undue prejudice was substantially outweighed. The trial court minimized any possible harm by giving an appropriate instruction to the jury before Dr. Mark's testimony, and by its credibility charge to the jury prior to the start of deliberations. (pp. 34-36)

         5. The final term at issue is "malingering." The Appellate Division specifically held that Dr. Mark's opinions on plaintiff's symptom magnification were improperly admitted. In doing so, the panel merged its analysis of that term with "malingering . . . [and] other equivalent concepts in civil jury cases." 449 N.J.Super. at 580. However, none of defendant's medical experts used the term "malingering" during trial; nor did defense counsel. The term "malingering" raises heightened concerns since it may implicate credibility. A medical expert's use of the term must be carefully scrutinized, applying an N.J.R.E. 403 balancing test, reviewed on appeal under an abuse of discretion standard. (pp. 36-37)

         6. As to whether the trial court abused its discretion by admitting proof of Rodriguez's past medical history, including her psychiatric history, CRPS is a diagnosis of exclusion that requires a treating physician to rule out all other potential causes and factors. The issue in the case was, therefore, the accuracy of plaintiff's CRPS diagnosis. Preventing Wal-Mart from pointing out plaintiff's past medical treatment and ongoing mental health issues as possible contributing factors to her diagnosis would have been unfairly prejudicial to defendant. Under N.J.R.E. 403, the probative value of plaintiff's past medical history, in light of her claimed injuries and damages, including her psychiatric history, was not substantially outweighed by any risk of undue prejudice. (pp. 38-40)

         7. Finally, the Appellate Division determined that Dr. Mark lacked qualifications to render opinions on "somatic disorder" and "malingering . . . at a level suitable for admission at a jury trial" because he was not a psychiatrist, psychologist, or other mental-health specialist. 449 N.J.Super. at 597 n.9. Testimony from both parties' medical experts established that there is a significant overlap between the fields of neurology and psychiatry. Allowing Dr. Mark -- an accomplished, board-certified neurologist -- to offer somatization and symptom magnification as possible explanations for the inconsistencies between the objective medical evidence and Rodriguez's subjective complaints of pain was not an abuse of discretion. The trial court properly left the ultimate determination as to the credibility, weight and probative value of Dr. Mark's testimony to the jury. (pp. 40-42)

         The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the jury's verdict of no cause of action is REINSTATED.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON'S opinion. JUSTICE PATTERSON did not participate.

          OPINION

          SOLOMON, JUSTICE

         While shopping in a store owned and operated by defendant Wal-Mart Stores, Inc., plaintiff Alexandra Rodriguez was struck by a falling clothing display rack. She later brought a negligence suit against Wal-Mart. In this appeal, we are asked to determine whether defendant's medical experts should have been precluded from using terms like "somatization"[1] and "symptom magnification" in their trial testimony. We also consider whether the trial court abused its discretion by admitting into evidence at trial plaintiff's past medical history, including her psychiatric history.

         We conclude that the admissibility of medical expert testimony utilizing terms such as "somatization" and "symptom magnification" must be determined by trial courts on a case-by-case basis, consistent with N.J.R.E. 403, and we find no abuse of discretion in the trial court's allowing use of those terms under the circumstances of this case. Although use by medical experts of the term "malingering" causes heightened concern since it may improperly implicate a plaintiff's credibility, the term "malingering" was never used by defendant's medical experts or by defense counsel during trial, and we disagree with the Appellate Division's equation of the terms used by the experts with that term. We also disagree with the panel's determination that one of defendant's experts, who is a neurologist rather than a mental-health specialist, was not qualified to testify about somatization or symptom magnification.

         We concur, however, with the Appellate Division's determination that the trial court did not abuse its discretion in admitting into evidence at trial plaintiff's past medical history, including her psychiatric history, after conducting an N.J.R.E. 104 hearing, in which the court found that the probative value of plaintiff's past medical history was not substantially outweighed by the risk of undue prejudice.

         We therefore affirm in part and reverse in part the judgment of the Appellate Division, and we reinstate the jury's verdict of no cause of action.

         I.

         Resolution of the issues before this Court requires that we review in some detail the testimony of plaintiff, the parties' experts, and the trial court's rulings. We begin with the testimony of plaintiff and plaintiff's experts as reflected in the trial record.

         A.

         While pushing a shopping cart in the ladies' department at Wal-Mart, plaintiff "brushed" a clothing display rack that started to fall.[2] The rack struck Rodriguez's right elbow and hand, and she used her elbow and hand to prevent the rack from pushing her to the ground. One of plaintiff's children, customers, and the store manager lifted the rack off of plaintiff.

         Rodriguez claimed that she immediately experienced pain in her neck and back but declined medical attention because her three children were with her. Later that day, plaintiff sought treatment at a local hospital emergency room. Approximately two-and-a-half weeks later, plaintiff sought treatment for ongoing pain with Dr. Steven Kahn. Dr. Kahn referred plaintiff to a pain management specialist, who administered epidural steroidal injections. Rodriguez reported only temporary relief from the injections.

         Because conservative treatment failed, Dr. Kahn performed nerve decompression surgery on plaintiff's wrist and elbow. When her symptoms recurred, Dr. Kahn referred plaintiff to Dr. Phillip Getson, a physician specializing in the treatment of Chronic Regional Pain Syndrome (CRPS).[3]Dr. Getson diagnosed plaintiff with CRPS. Six months after the Wal-Mart incident, but before her CRPS diagnosis, plaintiff was involved in an automobile accident ("the automobile accident").

         Later, Rodriguez filed a complaint asserting that Wal-Mart's negligence in constructing and maintaining the clothing rack caused her pain and CRPS.[4]Plaintiff filed a pre-trial motion to preclude Wal-Mart from referencing the automobile accident as a potential cause of her injuries, but the court denied the motion and permitted Wal-Mart to refer to the automobile accident "to challenge the medical opinions provided by plaintiff's medical experts citing to the Wal-Mart incident as the sole basis for her complained maladies."

         Additionally, relying upon N.J.R.E. 401 and 403, plaintiff's counsel moved in limine to exclude testimony -- including testimony by her treating orthopedic surgeon, Dr. Kahn -- about plaintiff's prior medical treatment for obstetric/gynecological issues, chronic abdominal pain, [5] and psychiatric and psychological disorders.[6] Citing N.J.R.E. 403, plaintiff's counsel argued that this evidence had little probative value and that the risk of undue prejudice and confusion of the issues far outweighed its probative value. Noting that Rodriguez "does have a history, a medical history that has to be considered," the court denied the motions in limine and allowed testimony about plaintiff's prior medical treatment for obstetric/gynecological issues, chronic abdominal pain, and psychiatric and psychological disorders.

         B.

         Dr. Getson and Robert Knobler, M.D., Ph.D., a neurologist, were the first two medical expert witnesses called by plaintiff's counsel to testify at trial. Both doctors diagnosed Rodriguez as suffering from CRPS and testified on her behalf as experts in CRPS. Dr. Getson testified first.

         1.

         During his qualification, Dr. Getson defined CRPS as "an incurable neurologic problem that most often comes following some kind of trauma. It [affects] the nervous system. The primary and hallmark symptom is horrible and unrelenting pain. There are many other symptoms. The exact nature and etiology of this is not clearly known." He explained that when diagnosing CRPS one must "look[] and see that there really is no other explanation that better suits that -- the symptom complex, the history and the physical examination, than [CRPS]." The court qualified Dr. Getson as an expert in areas including family medicine and CRPS.

         Plaintiff's counsel asked Dr. Getson on direct examination whether he believed plaintiff was "somaticizing" in light of her history of depression. He responded by defining somatization as "the conversion of a psychological issue into a physical problem," and testified that, in his expert opinion, Rodriguez was not somaticizing. He also added that as a general matter he does not believe that "psychiatric or psychological issues have any role in causing CRPS." In his redirect examination of Dr. Getson, plaintiff's counsel specifically asked whether Rodriguez's history of "psychiatric familial issues" could have caused her CRPS. Dr. Getson explained that a treating physician "has to look at the psychiatric history and ask whether or not it has a factor into the diagnosis" of CRPS, and he acknowledged that plaintiff experienced "abuse issues . . . as a child." Dr. Getson conceded that those issues would "certainly" have "psychological ramifications," but he ultimately concluded that plaintiff's psychological issues had nothing to do with her CRPS diagnosis and that her psychiatric history would not have "manifest[ed] itself in somatization."

         2.

         The trial court likewise qualified Dr. Knobler, who teaches a medical school class about the "Borderline between Psychiatry and Neurology," as an expert in neurology and CRPS. Dr. Knobler testified on direct examination by plaintiff's counsel that CRPS is rarely curable and becomes a "chronic, intractable pain disorder." He went on to clarify that, "because there is an underlying basis that is based on the anatomy and function of the nervous system that leads to the development of [CRPS][7] there are many secondary manifestations," including depression, difficulty sleeping, or dysfunction of internal organs. Dr. Knobler explained the reasons for his diagnosis of CRPS, including the reasons for plaintiff's symptoms and the fact that he ruled out other causes that might better explain the symptoms, like plaintiff's automobile accident.

         Dr. Knobler also addressed the relationship between plaintiff's past medical history -- including her psychiatric history -- and her diagnosis of CRPS. On redirect examination, plaintiff's counsel asked Dr. Knobler whether he would have expected to observe some physical manifestation of plaintiff's psychiatric history before the Wal-Mart incident, especially because it "goes way back" to her childhood. Dr. Knobler opined that if plaintiff's CRPS were "psychologically caused, it would have manifested itself much earlier" than the June 2010 incident at Wal-Mart. When plaintiff's counsel asked Dr. Knobler about the details of plaintiff's psychological history going back to her childhood, he responded, "It's physical molestation by a parental individual." Never before in pre-trial or trial motions, briefs, or testimony had any party or witness mentioned plaintiff's molestation as a child.

         Dr. Knobler also discussed plaintiff's prior medical treatment for chronic abdominal pain and obstetric/gynecological problems. When asked if any of those issues could have caused her CRPS, Dr. Knobler stated that they have "no direct relevance to what transpired with regards to the right upper extremity which is where the problem was." Dr. Knobler also stated that "there was nothing [in previous ...


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