Opinion
No. WD 61448
March 16, 2004
Appeal from the Circuit Court of Boone County, The Honorable Gene Hamilton, Judge.
William D. Rotts, Columbia, Missouri, for appellant[s].
Susan Ford Robertson, Michael R. Baker, Co-Counsel, Columbia, Missouri, for respondent[s].
Before Joseph M. Ellis, Chief Judge, Harold L. Lowenstein, Judge and Robert G. Ulrich, Judge.
On April 21, 1995, Appellant Susan McGuire was driving south on College Park Road in Columbia, Missouri, when she stopped for a traffic light at Missouri Highway 740. After the light turned green and McGuire began to proceed through the intersection along side a preschool bus, McGuire was struck by a tractor-trailer truck driven by William Koenig, who was traveling west on Missouri Highway 740 and failed to stop for the red light. The truck Koenig was driving was owned by his employer, Respondent S S Seed Farms. McGuire's car sustained significant damage, and McGuire was taken by ambulance to a local hospital for treatment of her injuries.
On September 15, 1997, McGuire filed a petition for damages against Respondent and Koenig in the Circuit Court of Boone County alleging that Koenig had been negligent in the operation of his truck and that Respondent was vicariously liable for the negligent acts of its employee. The claim against Koenig was voluntarily dismissed before trial after Respondent's vicarious liability for Koenig's acts was stipulated. Appellant's case was tried before a jury from January 29 through February 1, 2002. After the case was submitted, the jury returned its verdict in favor of Appellant, finding Respondent 100% at fault and awarding her $45,000 in damages.
In her sole point on appeal, Appellant contends that the trial court erred in admitting into evidence the testimony of Dr. Elizabeth Pribor, an expert witness called by Respondent. Dr. Pribor, a forensic psychiatrist, testified at trial that, based upon a review of some of Appellant's medical records, without having ever examined or interviewed Appellant, she had diagnosed Appellant with a psychiatric condition known as somatization disorder. As described by Dr. Pribor:
"As described by the American Academy of Psychiatry and Law ('AAPL'), 'forensic psychiatry is a medical subspecialty that includes research and clinical practice in the many areas in which psychiatry is applied to legal issues,' including criminal responsibility and criminal competence." Thompson v. Bell , 315 F.3d 566, 602 (6th Cir. 2003).
Somatization disorder exists in an individual when they have several physical complaints for which either one of those two things is first true:
Either that, when you do the proper organic workup, when you look into the history, they do not have anything wrong, or you have a person with some problems, medical problem, and the complaints are greatly in excess of that which the doctor would expect to see.
After you have one of those two, either one, you then have to have the person either seek out attention, i.e., go to a doctor, or take some form of medication or have a change in their life-style as a result of that.
And there has to be a minimum number of symptoms, as was already asked of me. The minimum, absolute minimum number is eight. But it's the rare patient with somatization disorder where you only have eight. That was really an attempt to make it a simple diagnosis for psychiatrists and especially non-psychiatrists, as most individuals have numerous symptoms.
That's one of the hallmarks of what they're looking for, an individual who goes to the doctor over and over and over again for many, many complaints over time, many of which, not all, many of which are either not substantiated by tests or clinical exam or they are greatly in excess of what you would expect.
Appellant argues on appeal that Dr. Pribor's testimony was improperly admitted under § 490.065 because her diagnosis was based upon an insufficient medical history that did not include any records prior to age 34 and because Dr. Pribor did not conduct a personal examination of Appellant prior to diagnosing her. Appellant further claims that Dr. Pribor's diagnosis was based upon "assumption, surmise and incompetent facts in assuming there to be medical records indicating a history of affliction before 30 years of age even though there were no such facts in the record." In addition, Appellant contends that Dr. Pribor's testimony constituted an improper comment upon her credibility as a witness, thereby invading the province of the jury.
All statutory references are to RSMo 2000 unless otherwise noted.
Appellant also argues that Dr. Pribor's testimony should have been excluded under the standards established in Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Neither of these cases, however, governs the admission of expert testimony in Missouri civil cases, where § 490.065 is controlling. State Bd. of Registration for the Healing Arts v. McDonagh , 123 S.W.3d 146, 153 (Mo. banc 2003).
The trial court is vested with broad discretion in the admission or exclusion of expert testimony. Yingling v. Hartwig , 925 S.W.2d 952, 955 (Mo.App.W.D. 1996). "A trial court's decision in that regard will not be disturbed absent an abuse of discretion, which only occurs when the ruling is against the logic of the circumstances or is arbitrary and unreasonable." Bank of Am., N.A. v. Stevens , 83 S.W.3d 47, 53 (Mo.App.S.D. 2002).
"[T]he standard for the admission of expert testimony in civil cases is that set forth in section 490.065." State Bd. of Registration for the Healing Arts v. McDonagh , 123 S.W.3d 146, 153 (Mo. banc 2003). Section 490.065 provides:
1. In any civil action, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
2. Testimony by such an expert witness in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
3. The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.
4. If a reasonable foundation is laid, an expert may testify in terms of opinion or inference and give the reasons therefor without the use of hypothetical questions, unless the court believes the use of a hypothetical question will make the expert's opinion more understandable or of greater assistance to the jury due to the particular facts of the case.
Thus, Section 490.065.3 "requires the court to consider whether the facts and data used by the expert are of a type reasonably relied on by experts in the field or if the methodology is otherwise reasonably reliable. If not, then the testimony does not meet the statutory standard and is inadmissible." McDonagh , 123 S.W.3d at 157. "[S]ection 490.065.3 also imposes an independent duty on the court to determine whether the facts and data relied on are otherwise reasonably reliable." Id. "Whether expert opinion testimony satisfies the requirements of section 490.065 is a matter of trial court discretion." Bailey v. Cameron Mut. Ins. Co. , 122 S.W.3d 599, 603 (Mo.App.E.D. 2003).
When Dr. Pribor was voir dired prior to offering testimony related to her diagnosis of Appellant with somatization disorder, she acknowledged that, under the standards recognized in her profession, in order for a person to be diagnosed with somatization disorder, the person must have begun having somatic complaints that are not substantiated by an organic cause prior to age 30. She further definitively testified that "[y]ou have to have evidence of some psychosomatic complaints before the age of 30" in order to make the diagnosis.
When asked what evidence she had found that Appellant had somatic complaints prior to age 30 that did not have any organic cause, Dr. Pribor offered the following testimony:
A: Well, sir, when you do cases like this and you only have records that go back to someone who's older than age 30, what you then have to look for is evidence in the records that these problems existed prior to that. And there are several references in the records of problems that Ms. — excuse me — Dr. McGuire had prior to the age of 30. Now, we're not — I was not given any records prior to 1988. . . . And she would have been 34 years old. So the only records I was allowed to review — I shouldn't say only. I mean, it sounds like actually there weren't many. Of the records I reviewed, the earliest ones, she was 34 years old. What one does, then, as a physician, is to look through the records that would then indicate some of the problems existed prior to the age of 30.
* * *
What I said is, the records, which start at the age of 34, point to, and for the most part at 35 and older, point to some complaints that she said have been around for a number of years, going back prior to the age of 30. And those complaints are psychosomatic complaints.
Q: Psychosomatic only if they are not supported by organic confirmation by a physician?
A: Oh, if the complaints — I mean, we haven't even gone into chronic or if the complaints are in excess of that which a doctor would expect to see.
Q: Doctor, where do you find in the records any of those findings before the age of 30 for Susan McGuire? Show me just one place where a doctor said this yeast infection didn't exist and/or she is overstating her symptoms. It's not there, is it?
A: Well, I think if you want to word the question differently, do I have any record before the age of 30, was I provided with any medical records whatsoever, psychosomatic or not, prior to the age of 30, and the answer is no.
Q: Doctor, isn't it true that you cannot, by this Introductory Textbook of Psychiatry, which defines somatization disorder, or the DSM IV, the practitioners' guide of how to reach findings of somatization disorder, say with any degree of certainty that Susan had some problem preceding the age of 30 that did not have a medically supported diagnosis that there was an organic foundation?
A: No, I'm not saying that. I can say that because of the very reason I just said. What you do as a physician, you look for the symptoms and then you also look to see that there are records prior, not — excuse me — that already references or signs that there were these symptoms prior to the age of 30. I feel certain, if I could have had all the records back to age 20 on, I would have plenty of examples. But I don't have that. What I have is 1,500 pages of records starting at age 35.
As noted supra, Section 490.065 requires "that the facts or data on which an expert bases an opinion or inference 'must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject' and that these facts and data 'must be otherwise reasonably reliable.'" McDonagh , 123 S.W.3d at 156. Medical opinions based upon assumptions not supported in the evidence should not be admitted into evidence. Adams v. Children's Mercy Hosp. , 848 S.W.2d 535, 548 (Mo.App. W.D. 1993) (overruled on other grounds in Washington v. Barnes Hosp. , 897 S.W.2d 611 (Mo. banc 1995)). "A medical expert's opinions must be supported by competent evidence which will give the opinion sufficient probative force to be substantial evidence." Id.
Dr. Pribor's assumption, that Appellant's medical records prior to 1988 would have contained evidence of somatic complaints and supported her diagnosis, is based upon speculation and conjecture. The records reviewed by Dr. Pribor in considering her diagnosis simply do not contain evidence from which Dr. Pribor could reasonably have made that assumption. Indeed, it appears that Dr. Pribor was making that assumption based upon her diagnosis and making her diagnosis, in part, based upon that assumption. This type of circular logic cannot form a reliable basis for an expert opinion. Accordingly, the trial court abused its discretion in finding that the facts and data upon which Dr. Pribor based her diagnosis were reasonably reliable and in admitting her testimony into evidence.
While Dr. Pribor did point to a July 29, 1989, doctor's report stating that Appellant had suffered from dyspareunia (pain during sexual intercourse) since 1980, nothing in the record indicates that there was no organic cause for that condition or that Appellant had ever previously seen a doctor for that complaint.
Respondent argues that Appellant has failed to establish that she suffered sufficient prejudice as a result of the admission of Dr. Pribor's testimony to warrant reversal. "A determination of prejudice by the erroneous admission of evidence depends largely upon the facts and circumstances of the particular case." Khan v. Gutsgell , 55 S.W.3d 440, 443 (Mo.App.E.D. 2001). "The appropriate question then is whether the erroneously admitted evidence had any reasonable tendency to influence the verdict of the jury." Id.
The credibility of Appellant was the paramount issue in this case. Indeed, Respondent's closing argument focused almost entirely upon that issue. Dr. Pribor's testimony most certainly may have influenced the jury's assessment of the credibility of Appellant's physical complaints and affected its award of damages. Under the facts of this case, we find that the improperly admitted testimony of Dr. Pribor had a reasonable tendency to influence the verdict of the jury. Accordingly, the judgment of the trial court must be reversed and the cause remanded for a new trial.
Respondent's closing argument focused on the nature and extent of Appellant's injuries, and counsel repeatedly stressed that the issues of causation and damages hinged upon the truthfulness and accuracy of the symptoms reported by Appellant. Respondent's counsel told the jury, "You cannot rely on the accuracy and the truthfulness of what she reports about her symptoms." Counsel repeatedly accused Appellant of exaggerating her symptoms and made reference to her "psychiatric condition" in asserting that she was fabricating some of her testimony.
Appellant claims to have presented evidence of approximately $79,000.00 in medical expenses incurred as a result of the accident, a sum significantly higher than the $45,000.00 award made by the jury.
We further note that Dr. Pribor's testimony improperly commented on Appellant's credibility. As a general rule, "expert testimony is inadmissible if it relates to the credibility of witnesses because it invades the province of the jury." State v. Link , 25 S.W.3d 136, 143 (Mo. banc 2000); see also State v. Middleton , 998 S.W.2d 520, 527 (Mo. banc 1999); State v. Cone , 3 S.W.3d 833, 843 (Mo.App.W.D. 1999); Yingling , 925 S.W.2d at 956;
We note that the well-established common law rule strictly prohibiting expert testimony as to the credibility of other witnesses does not rule afoul of § 490.065.2. That section provides that opinion testimony by an expert witness "otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." § 490.065.2. An expert's opinion as to the credibility of another witness is not "otherwise admissible" nor does it relate to an "ultimate issue" in the case.
In order to be "otherwise admissible" as provided in § 490.065.2, an expert's opinion must meet the requirement of § 490.065.1 that the opinion be based upon scientific, technical or other specialized knowledge that will assist the jury to understand the evidence or determine a fact in issue. Stucker v. Chitwood , 841 S.W.2d 816, 819-20 (Mo.App.S.D. 1992). "[I]f the topic is one of everyday experience, the testimony of an expert witness is properly rejected." Roy v. Mo. Pac. R.R. , 43 S.W.3d 351, 365 (Mo.App.W.D. 2001). Credibility determinations lie within "'the general realm of common experience of members of a jury and can be evaluated without an expert's assistance.'" State v. Cone , 3 S.W.3d 833, 843 (Mo.App.W.D. 1999) (quoting State v. Lawhorn , 762 S.W.2d 820, 823 (Mo. banc 1988)). Accordingly, an expert's opinion as to the credibility of another witness cannot provide the jury with any scientific, technical or other specialized knowledge that will assist the jury in its deliberations and is, therefore, inadmissible under § 490.065.1.
Similarly, the credibility of the plaintiff was not an "ultimate issue" to be decided by the jury as contemplated in § 490.065.2. See Black's Law Dictionary 1522 (6th ed. 1990) (defining "ultimate issue" as "[t]hat question which must finally be answered as, for example, the defendant's negligence is the ultimate issue in a personal injury action."); see also Harvey v. Washington , 95 S.W.3d 93, 98 (Mo. banc 2003) (noting that "all ultimate issues or elements necessary to the plaintiff's case" must be included in the verdict director); P.S. v. Psychiatric Coverage Ltd. , 887 S.W.2d 622, 626 (Mo.App.E.D. 1994) ("A plaintiff's verdict directing instruction must require the jury to find all contested ultimate issues or elements necessary to plaintiff's case."); State v. Candela , 929 S.W.2d 852, 867 (Mo.App.E.D. 1996) (noting that question about expert's opinion as to whether the victim's injuries were accidental "did not seek a conclusion of law with respect to the defendant's intent to cause serious physical injury, nor did it seek a comment on the credibility of any witness," and that instead, "[the expert witness] was asked his opinion as to an ultimate issue (whether [victim]'s death was accidental)").
Messina v. Prather , 42 S.W.3d 753, 764 (Mo.App.W.D. 2001); Peterson v. Nat'l Carriers, Inc. , 972 S.W.2d 349, 357 (Mo.App. W.D. 1998). "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 witnesses of the same type under consideration invests 'scientific cachet' on the central issue of credibility and should not be admitted." State v. Williams , 858 S.W.2d 796, 800 (Mo.App.E.D. 1993); State v. Hamilton , 892 S.W.2d 774, 780-81 (Mo.App.S.D. 1995). "Expert testimony presents the danger that jurors may be over-awed by the evidence, or may defer too quickly to the expert's opinion." Williams , 858 S.W.2d at 800.
Dr. Pribor testified that Appellant had somatization disorder. Dr. Pribor then testified that individuals who have somatization disorder have physical complaints where they don't have anything wrong physically and greatly exaggerate physical complaints where they have actual injuries. Dr. Pribor further testified:
So even if she complained of something months after the accident, hadn't been complaining for months, it was due to the accident. And that's a matter of her refocusing her psychological energies, if you will: This must be the reason why I'm feeling bad. So she'd have symptoms, but she had a reason. And the reason was the accident.
* * *
Individuals with somatization disorder are like the rest of us. They get the flu and get all sorts of things. And she has real medical problems. She's, you know, including she's had some problem with her knees. She had some problems, you know, with pain in her shoulder, pain in the arms. She had a disc herniation. And I'm not saying that wasn't real.
What I'm saying is, first of all, she has lots more complaints than that. And secondly, because of this accident, she focuses her attention, and psychological attention, that is, on these symptoms as all being from the accident.
After being asked if she was saying that Appellant was lying about the symptoms she is reporting, Dr. Pribor stated:
Definitely not. Again, this is not someone coming in trying to, quote, fake it for the doctor to get medicine or to get attention from a husband or anything like that. It's very different.
In somatization disorder, these are real physical symptoms. These are not, "I think if I tell the doctor I have pain in my leg, I'll get pain medicine." She doesn't get lots of pain medicine. It's real to her. She has these symptoms, whether it's burning pain, or shoulder pain, or knee pain, or trouble with her eyesight, before or after the accident. The difference is, it's real to her, but it is not — it was either not a cause for it or the complaints are greatly in excess of what you would expect. But it's not the same thing as lying, definitely. I mean, it's almost the exact opposite of it. They're real to her.
Subsequently, the following exchange occurred during Appellant's cross-examination of Dr. Pribor:
Q: Doctor, just so we're clear, you're not here to challenge today whether Susan suffered injuries out of the motor vehicle collision? You're not trying to tell the jury that she didn't get a broken knee cap?
A: No.
Q: You're not trying to tell the jury that she didn't get a herniated disc?
A: From the accident?
Q: From the accident.
A: I'm not here to say she did or didn't.
Q: All right. Thank you, Doctor. You're not here today to question whether Susan suffered a 25 percent vision loss to one eye as a result of this collision?
A: No. I'm talking about a disorder and how it can affect her perception of those problems or how she might relate them.
In short, Dr. Pribor's testimony was essentially a comment on Appellant's credibility, stating that individuals with somatization disorder, like Appellant, will frequently report symptoms for which there is no physical explanation and that, when such individuals actually have physical problems, they report symptoms greatly in excess of their actual physical problems. Dr. Pribor also implied that somatization disorder had caused Appellant to fixate on the car accident and improperly blame the car accident for her physical problems.
This is not the first occasion on which Dr. Pribor's testimony has been the subject of appellate court review. In Nichols v. American National Insurance Co. , 154 F.3d 875, 878 (8th Cir. 1998), Dr. Pribor testified, inter alia, that the plaintiff in that case had exhibited poor "psychiatric credibility" and that her story was unreliable. On appeal, Nichols complained that Dr. Pribor went beyond diagnostic opinion to testify about her veracity and credibility. Id. at 882.
The Eighth Circuit found that "[t]he challenged testimony impugning Nichols' psychiatric credibility and suggesting that recall bias, secondary gain, and malingering had influenced her story was not a proper subject of expert testimony" under the federal rules of evidence. Id. at 883. "[I]n her testimony Dr. Pribor sought to answer the very question at the heart of the jury's task — could Nichols be believed? She testified that she needed 'to interpret and weigh' what Nichols said or she could 'get a very skewed and inaccurate view of what actually happened' and that Nichols was a malingerer motivated by financial gain." Id.
The Eighth Circuit went on to explain: "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." Id. "Dr. Pribor was permitted to comment on Nichols' reliability 'in the guise of a medical opinion,' . . . and this 'impressively qualified the expert's stamp' of untruthfulness on Nichols' story went beyond the scope of proper expert testimony." Id.
Commentary of this nature, directly challenging the credibility of another witness, is not a proper subject for expert testimony and should not be admitted at trial. See Yingling , 925 S.W.2d at 956; Williams , 858 S.W.2d at 800; see also State v. Davis , 32 S.W.3d 603, 608 (Mo.App.E.D. 2000) (citing State v. Taylor , 663 S.W.2d 235, 241 (Mo. banc 1984) ("Expert testimony regarding a witness's reliability in distinguishing truth from fantasy [has been] deemed inadmissible because such opinions invade the jury's province to make credibility determinations.")). Furthermore, Dr. Pribor's testimony that Appellant actually believed the false statements that she was making and that she was not actually lying does not remedy the situation and fails to diminish the prejudicial impact of Dr. Pribor's statements on her overall credibility. As noted supra, "[e]xpert 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 witnesses of the same type under consideration invests 'scientific cachet' on the central issue of credibility and should not be admitted." Williams , 858 S.W.2d at 800; Hamilton , 892 S.W.2d at 780-81.
But see State v. Cone , 3 S.W.3d 833, 843 (Mo.App.W.D. 1999) ("[A] witness' credibility is best left to 'the general realm of common experience of members of a jury and can be evaluated without an expert's assistance, . . . [h]owever, the 'credibility' to which the doctors spoke was the consistency and reliability of their statements to the doctors, not their court testimony.")
See Yingling v. Hartwig , 925 S.W.2d 952, 956 (Mo.App. W.D. 1996) ("Contrary to Hartwig's argument in his brief, Dr. Neighbor's follow-up testimony that Christina Yingling is '[m]ost likely a truthful patient' fails to diminish the prejudicial impact of the repeated references about plaintiffs involved in litigation and their prolonged subjective complaints.")
"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." Nichols v. American Nat'l Ins. Co. , 154 F.3d 875, 883 (8th Cir. 1998).
The judgment is reversed, and the cause is remanded for a new trial.
All concur.