In Missouri, Witnesses cannot Claim Victim's Symptoms are Effected by Litigation - The Malingering Defense
Generally, under Missouri law, witnesses cannot testify about the credibility or truthfulness of another witness or party to the case. That is the job of the jury, to weigh credibility and decide who is telling the truth. So obviously, one witness cannot say another is dishonest or opine that the victim is exaggerating her pain because of a lawsuit. This is referred to as malingering. Whether it is from a lay witness or an expert medical witnesses, it is plain error to admit testimony that is a thinly veiled comment on a witness' credibility.
However, what about defense hired doctors who try and claim that patients who are involved in litigation tend to have complaints of pain longer than those that do not have ongoing litigation? We had on such situation when a brain injury case involving post-concussion syndrome went to trial recently in St Louis County court. The neuropsychologist that examined the Plaintiff testified in his deposition (testimony before trial) that patients with post concussion syndrome, who complain of symptoms more than 1 year from the date of injury, may be complaining of symptoms because of ongoing litigation. This testimony is absolutely inadmissible as the doctor is very obviously implying that the Plaintiff is making up their complaints because of an ongoing lawsuit. This is what defense doctor's are hired to do, call the Plaintiff a liar or malingerer and try to imply to the jury they are only saying they are hurt for money. This is a witness testifying about the credibility of another witness, again, the job of the jury to weigh credibility, not witnesses.
In Allen v. Andrews, 599 S.W.2d 262 (Mo.App.S.D. 1980), the plaintiff hurt their neck in a Springfield Missouri car accident. The case went to trial, however, after the verdict the Judge ordered a new trial because of testimony from a defense doctor that should not have been allowed. In particular, a treating physician called to testify by the defendant testified:
"I would just like to make a broad statement insofar as my dealings with patients with injuries which involve litigation.... I repeat that without exception patients with litigation in injured necks apparently recover because they never come back to see me once the litigation has been settled, so I would say (the plaintiff's) neck would recover without any residual disability."
This case supports the proposition that testimony offering generalized opinions as to the credibility of plaintiffs is unfairly prejudicial.
In Yingling v. Hartwig, 925 S.W.2d. 952, 956 (Mo. App. 1996), comments by a defense doctor that "Patients who are involved in litigation tend to have their subjective complaints last considerably longer" than patients who are not in litigation were allowed by the trial judge. However, the court of appeals found that the allowance of this testimony to be an abuse of discretion. That comment was improper as it was a comment or opinion as to the truth or veracity of the Plaintiff, and that is an issue for the jury to decide.
The court began its analysis by noting that the challenged witness' testimony in the case before it was similar to the witness testimony considered in the Allen case discussed above. In particular, the court observed:
"[A]s in Allen, the trial court in the case at bar abused its discretion in allowing testimony because it was highly prejudicial to the Yinglings' case. [The] testimony constituted broad-sweeping statements reflecting on "people not in litigation" and "people who are in litigation" - generalities, without any indication of similarity with or application to Christina Yingling. A court of law is not a public forum, and witnesses are not permitted to make general declarations about matters wholly unrelated to the parties. * * * Statements about unidentified people with unidentified injuries and complaints are irrelevant to prove whether Christina Yingling continues to suffer from her injuries, one of the issues at trial, and the trial court abused its discretion in admitting the testimony."
In other words, the court found that generalized opinions, as to the credibility and/or truthfulness of litigants in general, is irrelevant to the credibility or truthfulness of the plaintiff in a particular case, and that such opinions are unfairly prejudicial. Importantly, however, the court did not end its analysis there. Rather, the court went on to consider whether the opinion testimony in question - if assumed to be relevant and probative as to the particular plaintiff - was still too unfairly prejudicial to be admitted. The court answered this question in the affirmative. Specifically, the court said:
"Even if we assumed, arguendo, the testimony was somehow logically relevant, any probative value is far outweighed by its prejudicial effect to the Yinglings. * * * [The witness'] testimony was, in essence, a comment on a plaintiff's credibility; a statement that plaintiffs generally falsify their subjective complaints for the purpose of furthering their lawsuit and increasing their damages. Such a comment by an expert witness is inadmissible. State v. Tayler, 663 S.W.2d 235, 239 (Mo. banc. 1984) ("[E]xpert opinion testimony is not admissible as it relates to credibility of witnesses")."
"[E]ven if we could say the testimony had some logical relevance and some probative value, which we cannot, it would still be inadmissible because its prejudicial effect is wholly disproportionate to any value it might have."
Even if generalized opinion testimony regarding the tendency of litigants in general to manufacture or exaggerate their symptoms were somehow relevant and probative on the issue of whether a particular plaintiff was manufacturing or exaggerating her symptoms, such opinion testimony would nevertheless constitute an improper and inadmissible comment on a plaintiff's credibility, and would be unfairly prejudicial. On this basis, the court reversed and remanded for a new trial.
Expert testimony that comments directly on a particular witness' credibility, as well as expert testimony that expresses an opinion with respect to the credibility or truthfulness of witness of the same type under consideration invests "scientific cachet" on the central issue of credibility and should not be admitted.