ALEXANDRA RODRIGUEZ VS. WAL-MART STORES, INC., ET AL. A-4137-14T3Plaintiff 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, a neurologist, was not a psychiatrist, psychologist, or other mental health specialist. Plaintiff
The appellate panel concludes 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, the panel adopts 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, 154 F.3d 875 (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 categorically precluded from testifying that a plaintiff's subjective complaints appear to be inconsistent with objective medical test results or findings. In addition, the court does 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.