Opinion
CIVIL ACTION NO. 08-3010
06-28-2019
Peter BISTRIAN, Plaintiff, v. Warden Troy LEVI, et al., Defendants.
Robert E. Goldman, Fountainville, PA, A. Richard Feldman, Richard L. Bazelon, Lisa A. Barton, Michael F. R. Harris, Brazelon Less & Feldman, PC, Philadelphia, PA, for Plaintiff. Benjamin N. Gialloreto, Law Offices of Joel J. Kofsky, Philadelphia, PA, for Defendant Warden Troy Levi. Jeffrey M. Scott, Carlton L. Johnson, Shelley R. Smith, Archer & Greiner, P.C., Philadelphia, PA, Jordan Louise Fischer, Xpan Law Group, Downingtown, PA, for Defendants Assistant Warden Tracy Brown, Assistant Warden Blackman, Captain David C. Knox, David Garraway, Unit Manager White, Lt. R. Wilson. Jeffrey M. Scott, Carlton L. Johnson, Tanneika Minott, Thomas Nardi, Shelley R. Smith, Archer & Greiner, P.C., Philadelphia, PA, Jordan Louise Fischer, Xpan Law Group, Downingtown, PA, for Defendants J. McLaughlin, Senior Officer Bowns, Senior Officer Bergos, Lt. Robinson. Gary L. Bailey, Jr., Danyl S. Patterson, Bailey & Associates, Syreeta Joyce Moore, Team Clean Inc., Shelley R. Smith, Archer & Greiner, P.C., Philadelphia, PA, for Defendant Lt. J.A. Gibbs. Genelle Franklin, Fridie Law Group LLC, Cinnaminson, NJ, for Defendant Lt. Rodgers. Paul W. Kaufman, U.S. Department of Justice, Landon Y. Jones, Marisa Nash, U.S. Attorney's Office for the E.D. P.A., Marisa Davidson Nash, Bureau of Prisons, Philadelphia, PA, for Defendant the United States of America. Joseph Zaffarese, Wadud Ahmad, Kay Kyungsun Yu, Peter Carr, Aleena Yasmeen Sorathia, Ahmad Zaffarese LLC, Philadelphia, PA, for Defendant William Jezior.
Robert E. Goldman, Fountainville, PA, A. Richard Feldman, Richard L. Bazelon, Lisa A. Barton, Michael F. R. Harris, Brazelon Less & Feldman, PC, Philadelphia, PA, for Plaintiff.
Benjamin N. Gialloreto, Law Offices of Joel J. Kofsky, Philadelphia, PA, for Defendant Warden Troy Levi.
Jeffrey M. Scott, Carlton L. Johnson, Shelley R. Smith, Archer & Greiner, P.C., Philadelphia, PA, Jordan Louise Fischer, Xpan Law Group, Downingtown, PA, for Defendants Assistant Warden Tracy Brown, Assistant Warden Blackman, Captain David C. Knox, David Garraway, Unit Manager White, Lt. R. Wilson.
Jeffrey M. Scott, Carlton L. Johnson, Tanneika Minott, Thomas Nardi, Shelley R. Smith, Archer & Greiner, P.C., Philadelphia, PA, Jordan Louise Fischer, Xpan Law Group, Downingtown, PA, for Defendants J. McLaughlin, Senior Officer Bowns, Senior Officer Bergos, Lt. Robinson.
Gary L. Bailey, Jr., Danyl S. Patterson, Bailey & Associates, Syreeta Joyce Moore, Team Clean Inc., Shelley R. Smith, Archer & Greiner, P.C., Philadelphia, PA, for Defendant Lt. J.A. Gibbs.
Genelle Franklin, Fridie Law Group LLC, Cinnaminson, NJ, for Defendant Lt. Rodgers.
Paul W. Kaufman, U.S. Department of Justice, Landon Y. Jones, Marisa Nash, U.S. Attorney's Office for the E.D. P.A., Marisa Davidson Nash, Bureau of Prisons, Philadelphia, PA, for Defendant the United States of America.
Joseph Zaffarese, Wadud Ahmad, Kay Kyungsun Yu, Peter Carr, Aleena Yasmeen Sorathia, Ahmad Zaffarese LLC, Philadelphia, PA, for Defendant William Jezior.
ORDER
CYNTHIA M. RUFE, J. Both Individual Defendants and the United States (collectively, "Defendants") seek to introduce, during the trial on damages, the expert testimony of Barbara Ziv, M.D., a psychiatrist, who conducted a two-day interview with Plaintiff and reviewed his medical records. Dr. Ziv concluded that Plaintiff meets the American Psychiatric Association's criteria for the diagnosis of malingering, that his desire to profit from the present lawsuit predominates his clinical presentation, that he is a clinical narcissist, and ultimately, that Plaintiff does not require ongoing psychiatric care or psychotherapy. Plaintiff has moved to exclude Dr. Ziv's testimony on numerous grounds, or in the alternative, to limit the scope of her testimony. For the reasons that follow, the Court will not exclude Dr. Ziv's testimony in its entirety but will preclude her from testifying as to Plaintiff's credibility, including her diagnosis of malingering.
Plaintiff has not disputed Dr. Ziv's qualifications, who is being presented as an expert in the field of psychiatry. Dr. Ziv provides in her opinion that "[i]n order to ascribe causality between an event and subsequent symptoms, it is essential to assess two issues: the honesty and reliability of the individual being evaluated, and the individual's baseline functioning." The Court finds no issue with Dr. Ziv testifying as her evaluation of his present baseline functioning. However, her proposed testimony with regard to his honesty and reliability is impermissible, as it both invades the role of the fact-finder and relies on Plaintiff's past bad acts in a way that would be unduly prejudicial to Plaintiff.
Barbara Ziv's Report, Ex. A [Doc. No. 285-1] at 56.
Dr. Ziv asserts that "at the core of [her] assessment is the question of Mr. Bistrian's honesty." She finds that Plaintiff's "adult life has been characterized by not merely illegal behaviors, but criminal behaviors that are rooted in deception." According to Dr. Ziv, his deception extends to non-criminal behavior as well, including lying and being unfaithful to his wife and failing to pay taxes. Dr. Ziv adds that "even [his experience of being incarcerated] did not deter him from continuing deceptive behaviors," and his credibility is undermined by his "lifelong history of dishonesty and the obvious secondary gain he stands to obtain from this lawsuit." Dr. Ziv then concludes that Plaintiff meets the criteria for malingering, a diagnosis for which is made by any combination of the following: (1) medicolegal context of presentation; (2) marked discrepancy between the person's claimed stress or disability and the objective findings; (3) lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen; (4) the presence of Antisocial Personality Disorder.
Id.
Id. at 56-57.
Id. at 57.
Id.
Some of the reasoning employed by Dr. Ziv in concluding that Plaintiff is a malingerer overlaps with her testimony as to his current functioning, and therefore may be proper, as will be discussed in more detail below. For example, in finding marked discrepancies between Plaintiff's claimed stress or disability and the objective findings, she refers back to her assessment that his activity and relationships are inconsistent with a claim of Persistent Depressive Disorder. However, the majority of Dr. Ziv's expert testimony regarding her diagnosis of malingering is impermissible.
Because the Court finds that Dr. Ziv may not testify as to her opinion that Plaintiff is a malingerer, the Court need not address Plaintiff's arguments that her conclusions as to malingering are mistaken.
First, Defendants have not made clear how Dr. Ziv's characterization of Plaintiff as a litigant motivated by potential financial gain in this lawsuit is proper testimony for an expert witness. While the concept of potential financial gain as a motivation to lie may be a proper subject for cross-examination of Plaintiff, it is not properly addressed by a forensic psychiatrist.
Additionally, in diagnosing Plaintiff with Antisocial Personality Disorder for the purpose of her assessment that Plaintiff is malingering, Dr. Ziv relies on a plethora of Plaintiff's past bad acts, including: Plaintiff's seven convictions, beginning in 1991, for criminal offenses "demonstrating a failure to respect societal norms of lawfulness"; repeated violations of prison policies while incarcerated, "despite being disciplined in prison"; his use of his wives' names on his businesses and engagement in deceitful behaviors for much of his adult life; his failure to pay taxes; his limited history of "legitimate" employment; his lack of remorse for his past actions; and his failure to "see[ ] [anything] wrong in structuring his monetary transactions so as to avoid his restitution obligations." Permitting Dr. Ziv to testify extensively about Plaintiff's past misconduct, including his drug use that pre-dates his injuries while incarcerated in 2006, would be extraordinarily prejudicial to him, and its probative value is undermined by the fact that the ultimate conclusion it supports—that Plaintiff is a malingerer and is thus not credible—is improper expert testimony.
Barbara Ziv's Report, Ex. A [Doc. No. 285-1] at 64.
Defendants argue that Plaintiff's drug use prior to 2006 is relevant because there is evidence that he previously lied to physicians about such drug use, and therefore this evidence is relevant to his credibility. While the evidence may be relevant in the way Defendants describe, Defendants have not made clear why a forensic psychiatrist need testify to such purported dishonesty.
As the Third Circuit has held, "[a] doctor ... cannot pass judgment on the [examinee's] truthfulness in the guise of a medical opinion, because it is the jury's function to decide credibility." Here, through Dr. Ziv's conclusion that Plaintiff is a malingerer motivated by secondary gain, Defendants seek to utilize Dr. Ziv's testimony "to answer the very question at the heart of the jury's task—could [Plaintiff] be believed? ... Opinions of this type create a serious danger of confusing or misleading the jury, causing it to substitute the expert's credibility assessment for its own common sense determination." In sum, much of Dr. Ziv's report centers on her belief that, "[g]iven Mr. Bistrian's lifelong history of dishonesty and the obvious secondary gain he stands to obtain from this lawsuit, all information must be corroborated with objective, verifiable information," but a physician's valid consideration of a patient's subjective complaints "does not mean ... that [a physician] should have been able to testify more broadly as to his opinion concerning the truthfulness and reliability of [a plaintiff's] complaints."
Coney v. NPR, Inc. , 312 F. App'x 469, 474 (3d Cir. 2009) (citing United States v. Whitted , 11 F.3d 782, 785–86 (8th Cir. 1993) ).
Nichols v. American Nat. Ins. Co. , 154 F.3d 875, 883 (8th Cir. 1998) (remanding for a new trial where a psychiatrist expert witness "did more than explain psychiatric terms and the situations in which they may arise. She provided her own opinion that Nichols' statements to Dr. Tyndall were influenced by recall bias, secondary gain, and malingering"); see also Gray v. Ratanchandani , 2017 WL 4969338, *2 (M.D. Pa. Nov. 1, 2017) ("we note that court decisions suggest that such testimony [concerning ‘symptom magnification’] may be best characterized as a credibility determination, ordinarily reserved to the jury."); Kidd v. Wal-Mart Stores, Inc. , 2009 WL 3805584, *3 (E.D. Va. Nov. 12, 2009) ("Even if they possess the requisite expertise, the Court will not permit these doctors to opine as to whether Kidd has [symptom magnification or somatoform disorder ]. Such testimony far too easily invades the province of the jury or comments on the credibility of the Plaintiff" and "[n]either doctor ... may opine as to whether or not [the plaintiff] herself has somatoform disorder because such testimony could comment on Kidd's veracity and such testimony extends beyond the area of expertise identified for these doctors.").
Barbara Ziv's Report, Ex. A [Doc. No. 285-1] at 57.
Coney , 312 F. App'x at 474 (citation omitted).
Furthermore, the Court will not permit Dr. Ziv to testify that Plaintiff lied to Dr. DiMonaco. Dr. Ziv writes that Plaintiff was dishonest in his account to Dr. Weiss of his psychological treatment following his release, as he purportedly claimed to be receiving treatment from Dr. DiMonaco, when in fact he was not. Defendants argue this is appropriate expert testimony, because:
One purpose of an expert witness is to respond to another expert's report. Dr. Ziv perceived this ambiguity in Dr. Weiss's report, which suggests either that plaintiff was asserting that he received care from DiMonaco when he was not, or that Dr. Weiss mistook that as being the case. Either plaintiff was exaggerating, or the credibility of Dr. Weiss's report is called into question.
United States Resp. in Opp. to Pl.'s Mot. in Lim. [Doc. No. 313] at 21.
Defendants may cross-examine Dr. Weiss on inconsistencies between his report, which is based on Plaintiff's narrative, and "available record," but they may not use Dr. Ziv's testimony to identify such inconsistencies.
This type of critique relating to purported inconsistencies in the factual basis for Dr. Weiss's report differs from Dr. Ziv's other, appropriate critiques of Dr. Weiss's report, relating to her opinion that his diagnoses of Plaintiff are mistaken.
Although Dr. Ziv may not testify as to Plaintiff's credibility, her report contains other assessments and diagnoses that she may properly testify to, including her opinion that Plaintiff does not have PTSD, her assessment of his purported mental health treatment and whether it is consistent with his claimed impairments, and her assessment that he does not have Persistent Depressive Disorder. Plaintiff objects to her testimony relating to PTSD as being overly dependent on her opinion that he is a malingerer, but to the extent that Dr. Ziv's opinion as to PTSD is based on her assessment that Plaintiff does not display certain symptoms or respond to memories of the events in question in a manner consistent with someone with PTSD, it is proper expert testimony. Plaintiff's own expert concludes that Bistrian suffers from PTSD, and his attempt to preclude opposing expert testimony is without merit.
Dr. Ziv's testimony as to Persistent Depressive Disorder is also admissible for similar reasons, as it relies on his activities since the assaults—including driving and writing—which Dr. Ziv believes are inconsistent with a diagnosis of Persistent Depressive Disorder.
Finally, as to Dr. Ziv's supplemental report, Plaintiff's attempt to preclude its discussion of PTSD as an impermissible effort to "deepen" or "strengthen" an opinion rendered two years ago is without merit. In writing this supplemental report, Dr. Ziv considered new evidence not previously available, including reports from Plaintiff's experts and records from Plaintiff's former primary care provider, and her supplemental report is thus proper under Rule 26(e). Relatedly, although Dr. Ziv cannot testify that Plaintiff is a malingerer, she may explain why she believes certain conduct, such as being "overly vague or overly detailed in their descriptions of psychiatric symptoms," is inconsistent with a PTSD diagnosis.
The Court need not address some of Plaintiff's arguments on this point that relate to her ability to opine on factitious disorder and malingering, as the Court is not permitting such testimony at trial. The Court also need not address Plaintiff's objection to Dr. Ziv's testimony on conversion disorder, as it only arises in the report in the context of her explanation of malingering.
Dr. Ziv's Suppl. Report, Ex. F [Doc. No. 285-3] at 6.
AND NOW , this 27th day of June 2019, upon consideration of the United States' Motion for Relief from Page Limits (with respect to its response in opposition to Plaintiff's motion to exclude Dr. Ziv's report) [Doc. No. 311], to which no response was filed, and Plaintiff's Motion to Exclude the Testimony of Expert Witness Barbara Ziv, M.D. [Doc. No. 285], and the responses thereto, it is hereby ORDERED that:
1. United States' Motion for Relief from Page Limits [Doc. No. 311] is GRANTED .
2. Plaintiff's Motion to Exclude the Testimony of Expert Witness Barbara Ziv, M.D. [Doc. No. 285] is DENIED in part and GRANTED in part .
3. Dr. Ziv may testify to Plaintiff's baseline functioning, including her opinion as to whether his mental health treatment is consistent with his claimed impairments, but she may not testify as to his honesty and credibility, including her opinion that he is a malingerer.
It is so ORDERED .