NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4137-14T3

ALEXANDRA RODRIGUEZ, APPROVED FOR PUBLICATION Plaintiff-Appellant, AS REDACTED April 27, 2017 v. APPELLATE DIVISION

WAL-MART STORES, INC., and/or WAL-MART STORES EAST, LP, and/or WAL-MART STORES EAST I, LP,

Defendants-Respondents. ____________________________________

Argued April 3, 2017 – Decided April 27, 2017

Before Judges Sabatino, Nugent and Haas.

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).

The opinion of the court was delivered by

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,

(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

2 A-4137-14T3 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 store2 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

1 In the unpublished portion of this opinion, we address and reject as unmeritorious the other discrete arguments plaintiff has advanced on appeal.

2 Plaintiff's complaint named as defendants "Wal-Mart Store, Inc." and "Wal-Mart Stores East, LC." Defendants state that the proper name of the business entity responsible for the Turnersville store is "Wal-Mart Stores East, LP." For ease of discussion, we shall refer to plaintiff's adversary as "Wal- Mart."

3 A-4137-14T3 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

4 A-4137-14T3 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

5 A-4137-14T3 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.

6 A-4137-14T3 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,

(2017); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

(1995).

7 A-4137-14T3 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

8 A-4137-14T3 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

9 A-4137-14T3 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,

, 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,

10 A-4137-14T3 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

11 A-4137-14T3 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 happened in June of 2010?

A: No.

Q: How about any damage to the nerves of her right or her left arm?

A: No.

Q: Doctor did you have, the next slide deals with the diagnosis of complex regional pain syndrome. I think at the time she was complaining about it in her right arm.

A: Which time?

Q: When you examined in her March of 2014.

A: Correct, it was limited to the right upper extremity.

Q: Okay. First of all was the presentation in her right arm, was that a usual presentation for complex regional pain syndrome?

A: Well again there are certain findings both subjective and objective that we look for. Subjectively she had most of those complaints that one would look for. Objectively I could not verify those findings.

12 A-4137-14T3 But they're also accompanying other non-physiologic findings. In other words, there [are] other findings for example with her right face that didn't make any sense and therefore that brings up concern that some of the findings may not be of true nerve origin.

[(Emphasis added).]

At this point, the expert introduced to the jurors the

concept of "somatization":

Q: And Doctor what's the term somatization? Did you reach any sort of conclusion or consider the fact of somatization? And what exactly is that if you could explain that to the jury?

A: Basically it's a clinical state where one would present at different times with different complaints. The complaints would be evaluated fully. You know, for example, someone can present with chest pain, abdominal pain, different types. You work them up. You find nothing specific.

Eventually you come to the conclusion that there's nothing usually due to medical reasons. And repeated, that type of history would then be referred to as a somatoform disorder, somatization.

[(Emphasis added).]

The expert went on to elaborate how he reached his opinion

that plaintiff's reported symptoms were consistent with such a

"somatic" process:

Q: Is there an overlap between what let's say a neurologist or a belly doctor would do and a psychiatrist would do in

13 A-4137-14T3 terms of trying to find out, trying to reach a conclusion about somatoform disorders?

A: Sure. Before anyone comes to that conclusion, one takes a great deal of hesitation. One doesn't want to diagnose that until you’ve made sure that there is nothing medically going on.

So the first obligation of the physician is to explore the complaints fully and totally. Do whatever tests are necessary to make sure there’s no explanation.

And then one may even want to get other opinions. And then if one can’t find a cause for it, then it comes down to a clinical decision, whether it's due to anything medical or sometimes we can't find causes for things.

But if it's repeated over a period of time with different symptoms, then one can define that as a somatoform process.

Q: Now Doctor I didn’t pull your box up, but you've got about a banker box full of records and you evaluated her. Before you reached that opinion about somatization, did you go through [that] type of analysis in this particular case?

A: Well the advantage people like me have sometimes is we have a volume of records to look at, you know. One can go back and look at information for, you know, years if not decades.

. . . .

And there is a background history of claims of chronic and tractable pains involving her abdomen for which she's had extensive work ups. There are claims of intractable disabling pains involving her

14 A-4137-14T3 lower back and her right leg. And the work up I saw really didn't explain it adequately.

And there were other claims at different times of pain difficulties. And this was in a context of ongoing psychiatric difficulties. And that just brings up concern that things like a somatoform disorder may be there.

[(Emphasis added).]

Defense counsel then moved the questioning to the related

topic of "symptom magnification." Before the expert opined on

that concept, the court gave the jurors, as it had planned, the

following limiting instruction:

THE COURT: Yes, the Doctor had within his field of his experience and expertise, utilized what he sees and observes to determine whether the symptoms that are being expressed have some objective basis for them and give an opinion or a basis for them. He can give an opinion with regard [to] that.

But it relates to credibility. And you should understand that ultimately you are the people that judge the credibility of the plaintiff. And so you can take what the Doctor says. But ultimately it's your decision as it relates to credibility of the plaintiff and determine from your determination what to accept and what not to accept.

The expert then proceeded to define symptom magnification.

He explained why, in his opinion, plaintiff had exhibited that

characteristic:

15 A-4137-14T3 [DEFENSE COUNSEL]: Doctor as a result of your exam and the review of the records, did you form an impression that the plaintiff might be magnifying her symptoms and you can describe for us what symptom magnification is.

A: Sure. The answer is yes, there was some observations that would be compatible with symptom enhancement or magnification.

And basically what it is is a subjective evaluation, looking at someone, testing them. For example, applying pressure to let's say the neck area when one's complaining of pain. And when one barely touches the skin or moves the skin sideways and someone is screaming, okay, that's disproportionate to what one would expect in terms of that evaluation.

And that's what symptom magnification is, is a response that seems to be excessive compared to what should be observed in a given situation for most individuals.

And again everyone is a little different because of their psychological make up.

[(Emphasis added).]

In a related vein, the neurologist offered his opinions on

whether plaintiff's symptoms of pain were "psychogenic" in

nature:

Q: Doctor in terms of putting it together, what is psychogenic pain and psychogenic [sic], can it explain real physical findings over time?

A: Well a psychogenic pain is a very complicated process. One is, an implication is that there is a lot of psychological

16 A-4137-14T3 input into the pain. So for example if somebody's upset and you go over and you tap their shoulder a little bit, okay, they may scream and yell where somebody else you touch them, they don't even blink an eye. So your psychological makeup determines how you respond to pain.

But if you are complaining of pain, one needs to go all out to make sure that there's nothing on a physiologic basis first before you come to that conclusion.

Q: And is, all the things that you observed in the exam, was that consistent with her prior history, her 10 year history before hand?

A: Well I think it lays the foundation that there was predisposition to chronic pain. Not only chronic pain, but chronic disabling pain. And this was interacting with her psychological state. So there was a history.

[(Emphasis added).]

On cross-examination, plaintiff's counsel attempted to

neutralize the defense expert's opinions that plaintiff

exaggerated her symptoms:

[PLAINTIFF'S COUNSEL]: And in this case, nobody's diagnosed her with somatization in these records, did they?

A: Well the physicians treating her were treating her for pain and no one approached that diagnosis, no.

Q: And you have records that go back to the '90s, correct?

A: No, I have some records. I don't have all her psychiatric records.

17 A-4137-14T3 Q: So you're telling this jury something about somatoform disorder. You're not a psychiatrist. You're not a psychologist and you don't have all the psychiatric records, true?

A: Well they weren't supplied because she had psychiatric records going back to her teenage years.

Q: All right, but is what I said true?

A: I'm not sure. Repeat the question.

Q: Sure. You're telling this jury she has somatoform disorder but you don't have all the psychiatric records and you're not a psychologist or a psychologist, is that all true?

A: I don't need the psychiatry necessarily to make that assumption.

Q: I just want to know if what I said is true.

A: That's true.

Q: And with somatization, even if she had somatoform disorder, somehow there was, if the moon was blue and we all agreed on something in this case and she, we all agreed she had somatoform disorder which we don't obviously, in somatoform disorder isn't the pain real to the patient?

A: To them it's real, yes.

Q: And it's actually medical[ly] contraindicated to tell a patient that it's all in their head, if they were to have somatoform disorder, isn't that true?

A: I don't think the word medically contraindicated. I think it depends on the

18 A-4137-14T3 individual. It depends on the approach to it. It often is ineffective because to them it's all real.

Q: All right. Can we say it's not a good idea to tell a patient who has somatoform disorder that it's all in their head?

A: That's not a good idea, correct.

[(Emphasis added).]

Beyond this, counsel also questioned the expert about

whether plaintiff had exhibited "pseudo seizures." The expert

agreed that such events are considered "a form of somatization,"

and that "at times" a patient may be "volitionally" presenting

such symptoms. As a possible illustration of such a somatic or

"psychogenic" event, the expert referred to a situation in which

plaintiff went to the hospital after an argument at home,

complaining of "breathing difficulties, shaking, fatigue,

dizziness, and also claimed to have left arm pain and numbness."

That episode, diagnosed as an "anxiety reaction," was declared

by the expert to be "part and parcel of the entire history" of

episodes "that would suggest or support that there were

psychological features contributing to her medical state."

No other testifying witnesses contested the defense

neurologist on these points. Consequently, he provided the only

testimony the jury heard about symptom magnification,

somatization, and the like.

19 A-4137-14T3 C.

The courts of this state have long adhered to the cardinal

principle that "[i]t is within the sole and exclusive province

of the jury to determine the credibility of the testimony of a

witness." State v. Vandeweaghe,

(App.

Div. 2002), aff'd,

(2003). "[T]he jury is charged

with making credibility determinations based on ordinary

experiences of life and common knowledge about human nature, as

well as upon observations of the demeanor and character of the

witness." State v. Jamerson,

(1998) (citing

State v. J.Q.,

(App. Div. 1991), aff’d,

(1993)).

In furtherance of this exclusive jury function, "[w]e do

not allow one witness to comment upon the veracity of another

witness." Vandeweaghe, supra,

(internal citation omitted).3 This prohibition applies even if

3 We distinguish in this regard N.J.R.E. 608(a), which allows, subject to certain conditions and exceptions, the credibility of a witness to be attacked or supported by reputation or opinion testimony relating to a witness's general character for untruthfulness. That Evidence Rule disallows proof of such character traits to be proven by specific instances of conduct, with limited exceptions not pertinent here. In the present case, Wal-Mart's expert neurologist repeatedly referred on direct examination to specific instances of conduct by plaintiff, which Rule 608 would not permit. Moreover, the present case involves the credibility of plaintiff in a narrower sense relating to her account of the accident and her alleged (continued)

20 A-4137-14T3 the witness proffered to render such a credibility opinion is an

expert. See, e.g., State v. Henderson,

(2011); State v. Papasavvas,

(2000);

. "Experts may not offer such testimony

because 'credibility is an issue which is peculiarly within the

jury's ken and with respect to which ordinarily jurors require

no expert assistance.'"

(quoting

). See also Biunno,

Weissbard & Zegas, Current New Jersey Rules of Evidence, comment

1 on N.J.R.E. 702 (2016) (reiterating this principle and citing

additional cases applying it).

Having underscored this well-established prohibition, we

turn to the admissibility at a jury trial of expert opinion

about a testifying plaintiff's "malingering," "symptom

magnification," or other related concepts. The Fourth Edition

of the Diagnostic and Statistical Manual of Mental Disorders

("DSM-IV"), a major authoritative text classifying mental

disorders, defined "malingering" as "the intentional production

of false or grossly exaggerated physical or psychological

symptoms motivated by external incentives such as avoiding

military duty, avoiding work, obtaining financial compensation,

(continued) ensuing injuries, rather than her general character for truthfulness or untruthfulness.

21 A-4137-14T3 evading criminal prosecution, or obtaining drugs." American

Psychiatric Association, Diagnostic and Statistical Manual of

Mental Disorders 683 (4th ed. 1994). See also Fitzgerald v.

Roberts, Inc.,

, 299 n.6 (2006) (quoting this

definition from DSM-IV).4 The connotations of that term readily

can conjure up negative concepts of a person's intentionally

wrongful conduct, deceit, greed, evasion of duty, or

criminality. To brand a person a "malingerer" is essentially to

declare him or her a faker, a liar, a slacker, or a sloth.

Although there is no clinical definition of "symptom

magnification," that term essentially conveys the notion of

malingering, perhaps with more polite or scientific-sounding

phraseology. "In a medical context . . . words such as

'malingerer' and 'malingering' are not often seen in doctor's

reports." Samuel D. Hodge and Nicole Marie Saitta, What Does It

Mean When a Physician Reports That a Patient Exhibits Waddell's

Signs?, 16 Mich. St. J. Med. & Law 143, 155 (Winter 2012).

"Instead, physicians utilize phrases such as '[p]ositive

4 Malingering was removed from the substantive portion of the newest edition of the DSM, but remains as a diagnostic code. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 850 (5th ed. 2013) (identified by the authors as "DSM-5" rather than "DSM-V").

22 A-4137-14T3 Waddell's signs,'5 'secondary gain,' 'factious disorder,' 'within

the patient's voluntary control,' 'motions voluntarily limited

to the patient,' and 'subjective symptoms and complaints out of

proportion to the objective signs' to indicate malingering

behavior."

(internal citation omitted).6

To be sure, we acknowledge the phenomenon of malingering is

real. Some claim it to be widespread, particularly for chronic

pain patients. Id. at 154. Whatever the actual prevalence rate

of malingering may be, we do not lose sight of the possibility

5 Waddell's signs refer to a series of tests developed by Gordon Waddell and his research colleagues in 1980 to identify a group of inappropriate responses to a doctor's physical examination. Hodge, supra, 16 Mich. St. J. Med. & Law at 156 (citing Gordon Waddell, et al., Nonorganic Physical Signs in Low-Back Pain, 5 Spine 117 (March/April 1980)). The five signs, which were not developed for litigation purposes, include: (1) tenderness testing, (2) simulation testing, (3) distraction testing, (4) regional disturbances, and (5) overreaction to stimuli. Id. at 157-58. According to Waddell, it is clinically significant if three or more of these signs are present. Id. at 157. As Professor Hodge and his colleague note in their article, Waddell signs are controversial and have been criticized by some as non- reliable, although the tests have been admitted by some tribunals, including worker's compensation agencies and the Social Security Administration. Id. at 162-64.

6 The concept of "somatization," which was also a term used by the defense neurologist in this case, has a related but arguably less pejorative meaning. As noted in

somatization disorder has been defined as "a chronic condition in which a person experiences numerous physical complaints that implicate psychological problems rather than an underlying physical problem."

-99 n.5 (citing DSM-IV, supra, at 446). The term "somatization disorder" has been replaced in DSM-5 with "somatic symptom and related disorders." See DSM-5, supra, at 309-15.

23 A-4137-14T3 that a personal injury claimant could be exaggerating or

fabricating his or her reports of pain, weakness, and other

subjective symptoms.

Indeed, we are by no means declaring here that opinion

testimony on malingering or related concepts from a qualified

professional is inadmissible "junk science" or per se

unreliable. See N.J.R.E. 702; Hisenaj v. Kuehner,

(2008). Instead, we shall assume for the purposes of our

analysis that qualified expert opinion on malingering or cognate

concepts could have some probative value in evaluating whether a

personal injury plaintiff is telling the truth about his or her

claimed injuries. Our concern here is on the capacity of such

expert testimony to usurp or unduly influence, as a practical

matter, a jury's paramount role in evaluating a plaintiff's

credibility.

The expert's opinions about symptom magnification (and

equivalent technical-sounding medical terms) stamp an erudite

imprimatur upon a defense attack on plaintiff's overall

credibility. The same effect can occur reciprocally, as at

least one unpublished decision from our court has observed, when

a plaintiff presents a medical expert to opine that he or she

did not display on examination any indicia of symptom

magnification or malingering. In either instance, laypersons on

24 A-4137-14T3 juries might too readily accept the expert's gross assessment at

face value, despite their own critical independent role as the

ultimate judges of witness credibility.

These concerns about the undue impact upon jurors of such

expert testimony about malingering were detailed at length in

the Eighth Circuit's influential opinion in Nichols, supra,

. The plaintiff in Nichols sued her former

employer for sexual harassment and constructive discharge. She

alleged that she was forced to resign after a superior had

sexually assaulted her and made degrading comments about her.

. She claimed she suffered mental anguish, pain

and suffering, and emotional distress due to her employer's

conduct.

.

The defendant employer in Nichols presented expert

testimony from a psychiatrist who had performed an interview and

evaluation of the plaintiff.

. The psychiatrist

concluded that the plaintiff had a personality disorder and

"undifferentiated somatoform disorder."

. Over the

plaintiff's objection, the expert opined to the jurors that the

plaintiff had "poor psychiatric credibility" as well as "a

tendency to blur fantasy with reality."

The expert

punctuated these negative opinions by telling the jury that the

plaintiff had "recall bias" and that her accounts of what had

25 A-4137-14T3 occurred were affected by "secondary gain" and "malingering."

The expert defined "secondary gain" to the jurors as

signifying the possibility that the plaintiff's claimed symptoms

were motivated by financial gain, such as the prospect of being

awarded money damages in litigation.

The expert defined

"malingering" for the jury as "feigning or making up symptoms

for the purpose of secondary gain."

On appeal, the majority opinion of the Eighth Circuit in

Nichols reversed the jury's verdict for the defendant employer.

The court specifically overturned the trial court's admission of

the psychiatrist's expert opinions about the plaintiff's

malingering and related perceived characteristics.

at 882-

84. Among other things, the court applied the exclusionary

principles of F.R.E. 403, which authorize the court to disallow

relevant evidence if its claimed probative value is

substantially outweighed by the risks of unfair prejudice, juror

confusion, or other countervailing concerns that may taint the

truth-finding process.

. Cf. N.J.R.E. 403 (the

synonymous New Jersey version of F.R.E. 403).

The majority in Nichols observed that the defense expert

had opined on a credibility question "at the heart of the jury's

task[,]" specifically the issue of whether the plaintiff could

be believed.

. "Opinions of this type," noted the

26 A-4137-14T3 court, "create a serious danger of confusing or misleading the

jury."

(citing F.R.E. 403). The testimony about

malingering and the like had the improper capacity to cause the

jury "to substitute the expert's credibility assessment for its

own common sense determination."

As the Nichols majority rightly noted, "[w]eighing evidence

and determining credibility are tasks exclusive to the jury, and

an expert should not offer an opinion about the truthfulness of

witness testimony."

(internal citations omitted).

"Because '[e]xpert evidence can be both powerful and quite

misleading,' a trial court must take special care to weigh the

risk of unfair prejudice under the probative value of the

evidence under [Evidence Rule] 403."

at 884 (citing Daubert

v. Merrell Dow Pharmaceuticals, Inc.,

,

,

(1993)). Although the

defense psychiatrist was presented solely as a witness on

damages, the Nichols majority recognized that the expert

testimony was likely to also affect the jury's assessment of

liability. That was because the case as a whole "turned on

whose story the jury would believe – that of [the plaintiff] or

that of her supervisors[.]" Ibid.7

7 The dissenting judge on the panel in Nichols found no reversible error because, in his view, plaintiff's own medical (continued)

27 A-4137-14T3 Several courts around the country have since applied these

principles from Nichols barring or restricting expert opinions

on malingering, symptom magnification, and similar concepts in

jury cases. See, e.g., United States v. Benedict,

(8th Cir. 2016); Hale County A&M Transp., LLC v. City of

Kansas City,

(W.D. Mo. 2014); Olson v.

Ford Motor Co.,

(D.N.D. 2006);

Figueroa v. Simplicity Plan de P.R.,

(D.P.R. 2003); Corrothers v. State,

(Miss.

2014). Several unpublished opinions, which we will not cite

here, see Rule 1:36-3, have also favorably applied Nichols. We

are unaware of any opinions, published or unpublished, that

repudiate Nichols, although judges in a few jury cases, without

citing Nichols as contrary authority, have permitted expert

opinion about malingering, Waddell's signs, or similar concepts.

See, e.g., Rush v. Jostock,

(Minn. Ct. App.

2006); Lambert v. State,

(Okla. Crim. App.

2005).

We endorse these principles from Nichols. We agree that,

in a jury setting, there is a great danger that an expert

(continued) expert opened up this line of testimony by the defense expert, plaintiff did not preserve the issue for appeal, and any error was harmless. Id. at 891-92 (Loken, J., dissenting).

28 A-4137-14T3 witness who characterizes a plaintiff as a "malingerer" or a

"symptom magnifier," or some other negative term impugning the

plaintiff's believability will unfairly infect the trier of

fact's assessment of the plaintiff's overall narrative on both

liability and injury. Such opinion evidence from a doctor

inherently has a clear capacity to deprive a plaintiff of a fair

jury trial. R. 2:10-2. Consequently, we hold that such

testimony at a civil jury trial should be categorically

disallowed under N.J.R.E. 403.8

We have considered whether this bright-line principle

should be diluted to allow the presentation of expert opinion on

the concept of symptom magnification in certain limited and

exceptional civil jury cases. Having pondered that possibility,

we choose to reject it. There are contexts in which a bright-

line principle of law best serves litigants and lawyers, and

fosters predictability and uniformity. See, e.g., State v.

Bernhardt,

(App. Div. 1991); Zappala v.

Zappala,

(App. Div. 1988); In re Will

of Ferree,

, 153 n.21 (Ch. Div. 2003). This

is such an instance.

8 We impose no equivalent restriction on such testimony from a qualified expert in a non-jury trial, subject to case-specific arguments for exclusion under N.J.R.E. 403. See also Nichols, supra,

n.6 (distinguishing decisions in non-jury cases).

29 A-4137-14T3 We discern no necessity to cloud this principle of

exclusion with exceptions. Defendants still have a variety of

means to attempt to impeach a plaintiff, including through

arguments and evidence of bias, inconsistent statements, faulty

perception or memory, contradiction, prior criminal convictions,

and other methods.9

We should make clear that this prohibition on expert

opinion testimony about malingering or symptom magnification

does not disallow factual testimony by an examining physician,

conveying to a jury what the physician saw or heard a patient do

in the examination room. For example, if a plaintiff claimed to

the doctor that she could not lift her right arm above her head

without excruciating pain, the doctor would be free to testify

that, to the contrary, the doctor observed the plaintiff raise

her arm to reach for her coat on the way out of the examination

room. The jury would then have the task of evaluating the

9 For sake of completeness, we observe that even if our laws were construed to allow expert opinion on symptom magnification and related concepts to be presented to a jury to undermine a patient's credibility, the expert retained by Wal-Mart in this case lacked appropriate qualifications to render such opinions. Despite his formidable and unchallenged credentials as a very accomplished, board-certified neurologist, the expert was not a psychiatrist, psychologist, or other mental health specialist. Although he may have possessed sufficient experience and training to assess the veracity of his own patients' subjective complaints in his medical practice, he lacked the qualifications to diagnose somatic disorder, malingering, or other conditions at a level suitable for admission at a jury trial.

30 A-4137-14T3 significance of those observed facts, without any pejorative

labeling or credibility opinions from the defense expert.

Nor does our holding preclude a qualified expert from

testifying, without using pejorative classification labels such

as "malingering" and "symptom magnification," that a plaintiff's

subjective complaints appear to be inconsistent with objective

medical test results or findings. See, e.g., DiProspero v.

Penn,

(2005) (requiring plaintiffs who are

subject to the lawsuit limitation option of N.J.S.A. 39:6A-8(a)

to support their claims of injury in auto negligence cases with

medical "objective clinical evidence").

We are mindful that here, unlike the scenario in Nichols,

the trial court issued a limiting instruction reminding the

jurors of their exclusive role in assessing witness credibility.

We do not believe such an instruction can sufficiently

ameliorate the undue harm of admitting the expert opinion in the

first place. As we have recognized, sometimes jury instructions

about the misuse of evidence are simply inadequate to

effectively blunt the risks of significant prejudice. See,

e.g., James v. Ruiz,

(App. Div. 2015);

State v. Collier,

(App. Div. 1998),

aff'd o.b.,

(1999).

31 A-4137-14T3 The error in admitting the defense neurologist's opinions

on symptom magnification in this case, over a timely and

strenuous objection by plaintiff, was not harmless. Cf. State

v. Macon,

(1971). The testimony was extensive

and emphatic. Indeed, the expert stressed that he had reached

his opinions about plaintiff after a "very complicated process,"

and that they were reinforced by a "banker's box" of medical

records, which he claimed further showed plaintiff's tendency to

exaggerate her symptoms.

This case was a pitched battle over whether anything that

plaintiff had to say about the accident should be believed at

all. Her credibility was key because no eyewitnesses to the

accident testified. Although defense counsel did not explicitly

refer to the defense neurologist in his summation, he did

repeatedly argue that plaintiff was not a believable witness.

We lack confidence that the jurors ignored the defense expert's

testimony about plaintiff's alleged symptom magnification in

considering that advocacy. We do not fault the trial judge in

this setting – which arose in the absence of New Jersey

precedent directly on point – but nonetheless conclude that

reversal is mandated.

For these reasons, plaintiff is entitled to a new trial, at

which expert opinion testimony about her malingering, symptom

32 A-4137-14T3 magnification, somatic disorder, and other similar conditions

and traits shall be disallowed.

[At the discretion of the court, the published version of this opinion omits Part III, which addresses issues unrelated to the symptom magnification issue. See R. 1:36- 2.]

Reversed and remanded for a new trial consistent with the

evidentiary restrictions set forth in this opinion.

33 A-4137-14T3