Malingering Testimony in Personal Injury Cases Should Not be Admissible

Malingering testimony frequently comes from defense witnesses in personal injury cases. That is to say, the witness may directly state or insinuate that the plaintiff is either faking or not exercising best effort. The veiled terms that may used are “symptom validity”, “not doing their best”, “exaggerating”, “claims make no sense”, “sub-maximal effort”, “magnifying symptoms”, “motivated by secondary gain”. They are all the same. They are all assertions of a type of lie detector test being employed by the defense expert.

The testimony is quite insidious. That is to say, a well-dressed, polished expert testifies the plaintiff is a faker and or a liar. At this point the case has been polarized. So, that may be your best response.

The Trial Court Must Exercise its Gatekeeper Function

The trial court must act as a gatekeeper. It has no discretion about admitting inadmissible testimony. This testimony cannot be allowed to go to the jury. Therefore, the court must exclude evidence whose prejudicial effect outweighs any purported probative value. Brugh v. Jones, 265 Va. 136, 140 (2003) Experts must be confined by the court to testifying about their examination of the plaintiff and any scientifically reliable opinions they have. In addition, if the defense expert is not a medical doctor, then the witness cannot testify as to diagnosis or causation of brain injuries. Combs v. Norfolk and Western Railway, 256 Va. 490, 495 (1998); John v. Im, 263 Va. 315 (2002)

The trial court cannot simply allow this type of testimony to be heard by a jury to consider it for what it’s worth. The court has no discretion as far as admitting inadmissible evidence. Norfolk and Western Railway v. Puryear, 250 Va. 559, 563 (1995) So, the court must not abdicate its responsibility to ensure that only properly admissible evidence is considered by the jury. CSX Transportation v. Casale, 250 Va. 359, 367 (1995)

There are a Host of Reasons as to Why this Testimony is not Admissible

There are a variety of reasons as to why this testimony is not admissible:

• Hearsay. Many of the records relied upon by the expert are medical records. They are hearsay.
• A witness is not allowed to testify about the credibility of another witness. Robinson v. Commonwealth, 281 Va. 142, 156 (1986)
• The suggestion that there is some scientific methodology or testing that produces scientifically reliable evidence as to credibility is nonsense. Billips v. Commonwealth, 274 Va. 805, 807 (2007); Spencer v. Commonwealth, 240 Va. 78, 97 (1990); Brown v. Corbin, 244 Va. 528, 533 (1992); Kidd v. WalMart, 2009 U.S. Dist. LEXIS 105668

Tactical Considerations

In terms of how to strike this testimony, there is some logic in letting the defense doctor hang his hat on the malingering. Once he has committed himself to that, then file a Motion in Limine to strike that testimony after the expert deadline has passed. If he truly believes that the plaintiff was malingering, then that undermines all of the testimony and therefore effectively the defense expert cannot testify.

Call, or contact us for a free consult. Also for more info on expert testimony see the Wikipedia pages. Also see the post on this site dealing with defense medical experts.