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Trial attorneys in general may find useful Dr. Raffle’s presentation on the Direct Examination and Cross-Examination of a Mental Health Expert Witness in Workers’ Compensation Proceedings given in 2011 to the Sacramento County Bar Association. Beyond the Worker’s Compensation arena, many of the same issues of case law and principles apply. If you anticipate “dueling experts” in a case, don’t rely solely on this article: call Dr. Raffle directly at (415) 461-4845 to discuss the details of your case.

INTRODUCTION:

In order for a medical opinion to be admissible as evidence, it must fulfill either the Daubert Criteria or the Frye test. The effect of Daubert has been to limit expert testimony to opinions which are based on a scientific foundation. Daubert specifies that matters such as adequate scientific support and method and a known error rate must exist. The testimony of a mental health expert rendering an opinion using criteria which does not meet Daubert standards is weakened by the implication that it is not based on “sound science.” In some instances, for example, a mental health expert uses an approach where there are no peer-reviewed studies or methods, such as when psychologists compose their own neuropsychological test batteries. In most cases where an attorney is considering a “Daubert challenge” a contemporaneous and up-to-date literature search is indicated. Also, extensive case law presently exists as to specific issues. If you are familiar with the Daubert criteria your effectiveness in challenging a mental health expert’s opinion, by cross examination, will be more compelling. On direct examination, you will be better able to reveal the strengths of an opinion reached under Daubert criteria, because it will be founded on the science of mental health assessment.

BACKGROUND:

As a general background, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the U.S. Supreme Court held that the Frye “general acceptance” test was superseded by adoption in the Federal Rules of Evidence and that admission of scientific testimony is governed by Federal Rule of Evidence 702. In short, the Daubert criteria requires that the expert’s opinion be reached by use of “scientific methodology”, essentially formulating hypotheses and conducting experiments to prove or falsify the hypothesis. To establish the validity of the conclusion it is necessary to use empirical testing, that the method be (or has been) subjected to peer review and publication, and that it have a known or potential error rate. Further there must exist maintained standards and controls concerning the operation of that method (e.g. for example how a psychological test is administered, scored, tested and interpreted). Validity is further established by the degree to which the theory and technique is generally accepted by a relevant scientific community.

In 2000, Rule 702 was amended and now includes the additional provisions which state that a witness may only testify if

1. The testimony is based upon sufficient facts or data

2. The testimony is the product of reliable principles and methods, and

3. The witness has applied the principles and methods reliably to the facts of the case.

The determination whether or not testimony meets the Daubert criteria is at the sole discretion of the Judge.

SCIENTIFIC METHODOLOGY:

With the adoption of Daubert, the court defined “scientific methodology” as the process of formulating hypotheses and then conducting an experiment(s) to prove or disprove (falsify) the hypothesis. To be admissible, a theory or technique must be falsifiable, refutable and testable. Also, it must be peer reviewed, published, and have a known or potential error rate. There must be the existence and maintenance of standards and controls concerning its operations. The theory and technique is generally accepted by the relevant scientific community. The testimony is based on sufficient facts or data. The testimony is the product of reliable principles and methods. And, the witness has applied the principles and methods reliably to the facts of the case.

The American Psychological Association then addressed the Daubert ruling within the context of psychological testing and expressed four (4) guidelines to apply to Daubert.

1. Use theoretically and psychometrically adequate data gathering instruments.

2. Draw conclusions using scientifically validated theoretical positions.

3. Weigh and qualify testimony on the basis of the adequacy of theory and empirical research on the questions being addressed.

4. Be prepared to defend the scientific status of your data gathering methods during the process of qualifications as an expert witness.

The Frye Test is applicable in certain jurisdictions. Admissibility of scientific evidence under Frye states novel scientific evidence is admissible if it has “gained general acceptance in the particular field in which it belongs.” The Court keeps pseudo science out of evidence by deferring to those in the field.

REASONABLE MEDICAL PROBABILTY:

A line of questioning I have suggested to attorneys regarding “reasonable medical probability” of a medical opinion is the degree of certainty expressed by the expert based upon all of the evidence reviewed. This line of questioning will tend to uncover whether or not an expert is biased for the side he is testifying for and whether the expert has considered contradictory testimony. As everyone in the audience knows, in order for a medical opinion to be admissible in workers’ compensation, or for that matter, in a civil court or criminal court, the conclusion must be reached with a “reasonable medical probability or reasonable medical certainty” which means the opinion is “more likely than not” true. In most contested cases, there is a “battle of the experts” whereby contradictory opinions are expressed based upon evidence which is weighed differently by the various experts. If an expert has an opinion of which he is only 51% certain, then this must mean that there is 49% of contradictory data available which had to be countered. It is worth exploring which of the data is contradictory to the expert’s opinion; doing so may reflect a bias. It may also reveal a lack of understanding by the expert about what constitutes an admissible medical opinion. Many experts do not understand the legal basis for expressing a medical opinion. Instead, they believe that if a medical opinion is “possible” then they can testify to it. They also do not understand the Daubert Criteria (or the Kelly/Frye Criteria in applicable jurisdictions) and thus are not able to forensically weigh the medical evidence. On cross examination, revealing this ignorance in the expert is clearly beneficial. Also, revealing the expert’s ignorance about these guidelines may enable the attorney to have the expert’s opinion disregarded by the court as not being applicable, relevant or admissible.

CHALLENGING THE ADEQUACY OF THE CLINICAL EVALUATION:

In the Workers’ Compensation System as well as other legal venues, the Diagnostic and Statistical Manual of Mental Disorders IV-TR generally is accepted as the standard for identifying the necessary clinical criteria for various psychiatric disorders. In November 1995, the American Journal of Psychiatry, Volume 152 Supplement, provided detailed guidelines for an adult psychiatric evaluation titled “Practice Guidelines for Psychiatric Evaluation of Adults.” I do not wish to identify all the particulars in that article but do refer you to a part of that article involving a sufficient mental status examination. For your information, a mental status examination is the equivalent of a physical examination by a “regular doctor,” i.e., non-mental health professional. The Mental Status Exam is a description of the various mental functionings or their derivatives of the evaluee at the time the examination is conducted. The mental status examination should include the following elements:

• General appearance including dress, gait, posture, facial expression, cooperativeness, accessibility, alertness, tenseness, restlessness, friendliness, tidiness, disorderedness, broodiness, agitation, negativism, indifference, stupor, or stereotypic behavior.

• General activities such as normal compulsive bizarre or retarded movements, pressured activity, hand wringing, pacing or crying.

• Disorders in speech such as scanning, hesitating, slurring or stuttering as well as an inability to identify objects.

• Disorders of thinking such as whether the thinking is interrupted. Thought production including flow of thought, acceleration or retardation and flow of thought or distractibility. Thought continuity such as clearness of thought, coherence, relevance, whether the thoughts ramble, whether they are not specific to the topic at hand, whether or not perseveration occurs i.e., the individuals stays on the same topic even though the examiner moves to another topic, flight of ideas whereby the examinee’s ideas flit from topic to topic without completion or blocking, whereby thoughts are not completed.

• Thought content includes formation of concepts, handling of ideas, anxieties, fears, obsession, phobias, hypochondriacal preoccupations, body image concerns, autistic thinking, ideas of reference or ideas of influence (paranoid type thinking), self-depreciation, suicidal ideas, somatic delusions, other systematized delusions, self-referential thinking, hallucinations (abnormal sensory experiences), apprehensive expectation (anticipating bad things happening), fears of abandonment or feelings of estrangement.

• Emotional state should indicate how emotions are regulated, mood swings, control of emotions, anxieties, feelings of unreality, perplexity, agitation, irritability, depression, apathy, elation, restlessness, or emotional numbing.

• Somatic functioning can include headaches, pains, or other medical system abnormalities. This can include but is not limited to disturbances of sleep, eating, appetite, weight, bowel regularity, sex, alcohol or drug abuse, or excessive smoking.

• Mental grasp should be assessed regarding the person’s understanding of his or her current situation, attention, concentration, memory, ability to calculate, engage in abstract reasoning and the quality of their judgment. An absence of an adequate mental status assessment may constitute a defective psychiatric or psychological evaluation and permit a challenge as to the adequacy of the expert’s opinion.

THE USE OF PSYCHOLOGICAL TESTING AS PART OF THE BASIS OF A MENTAL HEALTH OPINION REGARDING A DISABLED EMPLOYEE:

In my opinion, the best psychological personality test available for assessing personality is the Minnesota Multiphasic Personality Inventory 2, better known as the MMPI-2. This is the most widely given psychological test in the world. It is the best studied test and the test most agreed upon between inter-rater assessment i.e., two separate specialists looking at the same test results would agree with the interpretation of the test. As a psychiatrist who has administered at least two thousand MMPI-2s (probably more), been trained in its use and who has qualified as an expert on the MMPI-2 in multiple jurisdictions, I believe that the use of the test in workers’ compensation cases is justified and helpful. I am not particularly fond of computerized interpretations of this test because they only perform two-point interpretations on the clinical scales. Furthermore, the computerized printout cannot take into account the individual’s clinical presentation which may skew the test interpretation in a direction which is not helpful to the evaluator. An experienced evaluator of the MMPI-2 is able to do three or four-point interpretations of the test as well as to incorporate many subtleties which are generally not addressed in a computerized printout. For example, often questions are left unanswered which are particularly relevant to the assessment of the injured worker. Specific inquiry into these questions may reveal important clinical information. Also, the MMPI-2 is very well standardized for its validity scales. The validity scales are helpful to a psychological evaluator because they report the test taker’s attitude toward the test and by extension may assist the evaluator in assessing the injured employee’s attitude toward his symptoms. A gross overstatement of psychiatric pathology evidenced on the MMPI-2 Validity Scales may be very helpful in assessing the degree of disability the person is reporting. Sometimes, the degree of overemphasis is so substantial as to cause the evaluator to entertain a diagnosis of malingering i.e., intentional conscious misrepresentation of symptoms. This test is not a definitive test for malingering, but it does become part of the basis of an opinion regarding this diagnosis.

Within the various validity scales, there are cross-referencing scales which further assist the examiner in drawing conclusions about the test taker’s attitude. One scale, the F Scale, is a good measure of emotional distress; however, the F Scale may also be elevated if the person has a reading problem. By examining another validity scale, the VRIN, the Variable Response Inconsistency Scale, the examiner can determine whether or not an actual reading discrepancy exists since the VRIN should be elevated if there is a reading problem. Being able to rule out a reading problem is beneficial in establishing the cause of an F Scale elevation.

The MCMI-III, the Millon Clinical Multiaxial Inventory-III, is in my opinion not a particularly useful test in a forensic setting because it overdiagnoses personality disorders. I believe the test does not fulfill the Daubert Criteria either, in that only three questions out of 175 questions addressing the test taker’s attitude. As such, I believe, it does not have a falsifiability rate that is scientifically reliable.

Many tests are face obvious. This is not a reason to avoid them, but it does impact their reliability. The Beck Depression Inventory for example is about depression. The questions clearly indicate it is a measure of depression. An individual who is trying to exaggerate his level of depression would easily do so with this test. However, by using this test in conjunction with the MMPI-2’s validity scales, I have found to be clinically useful. Similarly, the State-Trait Anxiety Inventory or Zung Anxiety Inventory or Beck Anxiety Inventory are all face-obvious tests which may be used in conjunction with an MMPI-2 validity assessment regarding test-taker attitude.

NEUROPSYCHOLOGICAL TESTING:

There exist many peer-reviewed neuropsychological test batteries which assess various parameters of neuropsychological functioning. Those include but are not limited to the Halstead-Reitan Battery, the Luria-Nebraska Test Battery, the WAIS-III Battery, the Wechsler Memory Scale III, the Wisconsin Card Sort, Trails A and B and about a thousand others.

Some neuropsychologists use nonstandard procedures, that is to say they administer parts of various test batteries in order to perform a forensic assessment of an individual’s neuropsychological functioning. I believe that under Daubert, this is not permitted because the nonstandard procedures are not falsifiable and they have not been peer-reviewed. This flexible battery approach, therefore, has not been subjected to adequate scientific testing. Even if the examiner is qualified to administer these tests, I believe Daubert opens the door to challenge the admission of this neuropsychological evidence in a medical-legal setting. There is a distinction between methodology and qualifications. Said another way, Daubert requires that in order for an expert’s opinion to be admissible, the entire reasoning process must be valid. A link must exist between the test results and the conclusions drawn.

THE USE OF FORCED-CHOICE TESTING IN FORENSIC NEUROPSYCHOLOGICAL ASSESSMENT:

Forced-choice testing means the test taker must express an answer to a question. The first forced-choice test I became familiar with was the Rey 15 Items Test. Subsequent study of this test found that it was not particularly reliable as a forced-choice test. Other tests have been developed. For a more complete discussion about forced-choice testing and a diagnosis of malingering, I refer you to Rogers’, Clinical Assessment of Malingering and Deception, Second Edition. According to Rogers, forced-choice testing is composed of two elements: 1. A specific ability is assessed by a large number of items presented in a multiple choice format. 2. A person’s performance is compared to the likelihood of success based on chance alone, i.e., no ability. “All widely used forced-choice tests have two multiple choice alternatives. Therefore, the probability of purely guessing, i.e., analogous to no ability whatsoever, the correct response is 50%. Scores significantly lower than chance performance suggests that sensory cues may have been perceived, but the patient chose not to report the correct answer. Other viable explanations are not apparent. The compelling conclusion is that the patient who scores below probability is deliberately motivated to perform poorly. The conclusion of malingering, however, must be derived from the total clinical context.” Two of the more commonly used forced-choice tests today are the TOMM (Test of Memory Malingering) and Variable Response Indicator. Other tests include the PDRT (Portland Digit Recognition Test) and the Multi-Digit Memory Test. The Recognition Memory Test which is a standard neuropsychological test also has been used as a forced-choice test. A later version of the 15-Item Test, the 21-Item Test, is a shorter forced-choice test, but because of its brevity, this decreases the probability of obtaining statistical significance.

Another group of tests to assess malingering are self-report instruments. I again refer you to Rogers for a full description of them. They include the M-Test, the Malingering Scale, Tehachapi Malingering Scale, the Malingering Detection Scale, the Malingering Probability Scale, and the Structured Inventory of Malingered Symptomatology. Others are the Inventory of Problems and the Sentence Completion Test.

OTHER TESTS FOR MALINGERING:

The MMPI-2 has validity scales which may be of such significance as to raise the possibility of malingering. The Rey Auditory Verbal Learning Test is also useful for the assessment of malingering particularly those associated with mild head injuries. Low scores of recognition in the California Verbal Learning Test is also suggestive of malingering as are the Memory Assessment Scales. Atypical performance on tests such as the Wechsler Memory Scale revised or the WAIS-III are other indicators of intentionality.

When cross-examining a neuropsychologist about the neuropsychological assessment of an allegedly brain-damaged individual, I believe the absence of forced-choice testing greatly undermines the reliability of the proffered opinion. Given the medical-legal context of a neuropsychological injury, I believe it is incumbent upon the neuropsychologist to use forced-choice testing. As a psychiatrist who is often involved in neuropsychiatric cases, I myself often administer forced-choice tests as part of my mental status examination, particularly when there is a suggestion of “faking bad” on the MMPI-2, whereby the individual is overstating his level of pathology beyond what is expected. Other indicators for using forced-choice testing in a psychiatric assessment would be the assertion by others that an individual who is alleging difficulties with memory, attention or concentration is not giving a full effort. For example, if a person alleges a serious depression associated with poor memory, and I administered the TOMM, which then falls below the cut point for malingering, I believe I have a good basis to express an opinion the individual is overstating his deficit.

As noted above, I believe the MMPI-2 is a very good screening test for the possibility of malingering. If indeed clinical assessment plus psychological testing suggests an effort to intentionally deceive the examiner, then malingering is to be considered. Ultimately, malingering is a conclusion reached by the Trier of Fact. The expert who considers it and rules it out or rules it in as a possibility, is performing a more complete examination than the expert who does not consider it at all. This inquiry also is worthy of examination.

In closing, I find that the better prepared I am, and the better prepared the attorney is who has hired me, the better the outcome of my testimony, by which I mean my conclusions and logic are well understood such that jurors could find themselves in agreement with me for rational reasons. Conversely, the better prepared the attorney is for cross-examination, the more fruitful the cross-examination will be. This seems face obvious, but is worth mentioning because of its importance. As an expert, I believe it is my job to educate the attorney for whom I work about psychiatric pathology, its relevance to the case and how the attorney can elicit the best evidence from me and the best evidence from the opposing expert. I do not believe a psychiatrist helping an attorney prepare direct or cross-examination question is advocacy. It is the expert’s job, I believe, to educate the attorney so that the attorney can help the expert educate the jury or other Trier of Fact about the elements the expert is expert at. If the expert understands the litigation process to be one of discovery, then assisting an attorney to discover contradictions or deficits in the opinion of an opposing expert is not advocacy, but rather expert witnessing once removed. Furthermore, it is necessary for the expert to understand the basis of the opinions reached by the opposing expert in order to fully consider the basis of his opinion.

When teaching about direct and cross examination of mental health expert witnesses, I have sometimes recommended that the best cross-examination of an expert witness is with your own experts. Taking the expert’s direct examination and examining it through your own expert often provides the clearest exposition about the shortcomings of the opposing expert’s opinions. A recent example occurred in a murder case in which I testified for the defendant. It was my testimony the defendant had a dissociative state immediately following a motor vehicle accident whereas the prosecution’s psychiatric expert believed the defendant drove away from the scene of the accident because he was intoxicated and had an alcoholic blackout about remembering what he did. This was a crucial issue for the jury in this particular jurisdiction (Minnesota). Using the literature and also relying on a forensic toxicologist, I was able to state with certainty, not just medical certainty, that alcoholic blackouts do not occur with a blood alcohol of 0.15 mg%. The prosecutor’s expert was not able to rebut my testimony and the jury concluded my testimony was correct. In this fashion, I was used to “cross-examine” the prosecution’s expert.

Toronto Star, “Is Russell Williams Still Grasping for Control?” By Jim Rankin, April 18, 2010

[Background: Col. Russell Williams in the Canadian Forces and a former Base Commander is accused in a string of murders, rapes, now 82 counts of breaking and entering and an unfolding story of escalating violent behavior. Toronto Star reporter Jim Rankin interviewed Stephen Raffle, M.D., and other forensic mental health experts to gain insight into Col. Williams' recent behavior in jail: a hunger strike, what appear to be suicide attempts and their meaning]

“…the major thing is loss of control and trying to remain in control of an out-of-control situation,” says Raffle, who has interviewed serial killers and gives expert testimony in criminal cases…Hypothetically, assuming that he did these things, there may be a sense of shame, and he sees (suicide) as an honourable way out,” says Raffle. “I think this is a man trying to regain control. It’s his only possible escape at this point….”   

…read the complete article at www.thestar.com

A hostile work environment arises when a worker experiences physical threats, unwelcome sexual advances, humiliation, or other unspecified egregious behavior on the job. The effect of the experience must affect the employee’s psychological well-being and the way in which the employee works. If the employee does not experience the “hostile” acts as abusive, then the conduct has not actually altered the work environment and the workplace is not considered hostile for legal purposes, i.e., no offense has occurred. Thus, a particular act may cause one person to experience a hostile work environment because a particular conduct has altered the work environment for that person whereas another person may remain unfazed.

The definition of unwelcomeness I use is “behavior not incited or solicited.” This definition is directly linked to attitudes and expectations by the aggrieved party and becomes part of the basis of my evaluation. If I am evaluating an employee for fitness for duty and he/she is said by others to have engaged in threatening, bullying, sexual touching, or other unwanted or unsolicited behavior, then I may have a person who is creating a potentially hostile work environment. If the examinee denies the behavior, then I must examine him/her for underlying psychopathology to assess the level of reality he/she is operating in (reality testing). The person may feel justified in the behavior due to a belief the object of attention wants it, e.g. a sexual relationship. Also I must consider the idiosyncrasy of the person I’m examining, especially in civil litigation, but also in fitness for duty exams. For example, one person may claim a hostile work environment and harassment because a co-worker chews and cracks gum. Such hypersensitivity doesn’t create an abusive work environment. To determine “idiosyncrasy,” I try to apply a “reasonable person” test to the alleged wrongdoing and complaint.

One “take away” from all of these parameters and perspectives is that too often employers who seek a fitness-for-duty exam for an employee vis-a-vis the employee’s ability to work, fail to consider that his/her identified behavior may be creating a hostile work environment for co-workers or supervisors.

There are distinctions to be drawn when evaluating individuals for occupational problems, psychopathology, disability, creation of a hostile work environment, workplace stress, retaliation, discrimination, risk of violence, and fitness for duty.

The current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) is more than 900 pages long and describes in detail most of the psychiatric disorders which exist and their characteristics. It describes psychopathology, which is to say psychiatric malfunctioning. The DSM also categorizes “other conditions or problems which may be the focus of clinical attention,” but which is not the result of a mental disorder,

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Presentation by Stephen M. Raffle, M.D.
Fitness for Duty Psychiatric Examinations
Kaiser Permanente
Employee/Labor Relations Consultants and Disability Managers for Northern California
December 11, 2009

Thank you for inviting me to present on the psychiatric aspects of fitness for duty exams in conjunction with your in house attorneys and the guest attorney from the firm of ReedSmith.  [Transcription of Presentation Follows]…

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Undue Influence? Abuse of Trust?  Elder Abuse?  Increasingly, caregivers are taking a central role in the lives of parents and spouses when there aren’t enough hands to go around.

What are the indicators which may point to a caregiver raiding a patient’s assets?  As a psychiatric consultant to Hospice by the Bay, I have been asked this question.  This involves assessing elder abuse, Alzheimer’s, other dementias, “senility,” mental confusion, drug effects, and indicators of undue influence and theft.  Exploitation can occur

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Reasons the Treating Psychotherapist
Should Not Be the Expert Witness

In civil cases where emotional distress is alleged, it often occurs that the plaintiff’s attorney designates the treater as his expert. Usually the argument is that the plaintiff’s own therapist has spent many more hours with the plaintiff than the defense expert and therefore “knows” the plaintiff better.  The treater often agrees with this reasoning.

I believe a number of fallacies exist in this conclusion:

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All psychiatric reports evaluate something, but not always the same thing. For example, eligibility for benefits, or fitness to do a job (e.g., in HR arenas, as well as wrongful termination and discrimination lawsuits). To make sense of the report, the reader must determine what is being evaluated and how it is being done. Psychiatric reports are not created equal. To be meaningful, the diagnoses and conclusions in a psychiatric report must be supported by data contained in the report.

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My teacher and mentor, Dr. Bernard Diamond, pondered the question about the role of the psychiatric expert and other experts in the courtroom. My first public presentation was to the American Criminology Society on this topic, and it has continued to occupy my attention to the present. I believe the courtroom is a special place with special rules that must be understood in order for the most effective presentation of the clinical data to occur. The process is adversarial, which is generally contrary to the experience of clinicians or academicians. Clinicians are used to being trusted and believed without having to explain in detail the basis for their opinions. The courtroom is different; there must be a sound scientific basis for the expression of an opinion (the Daubert or Kelly-Fry cases, for example) and most clinicians are not used to having to defend their opinions in this fashion.

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