Introducing Evidence of Psychological Treatment


I.          Setting the Stage

            A.        Pain by any other name?

                        1.         Fibromyalgia

                        2.         Chronic Pain Syndrome

                        3.         Thoracic Outlet Syndrome

                        4.         Reflex Sympathetic Dystrophy

            B.        Recognize the nearly-universal skepticism among jurors.

            C.         Lay witnesses are critical to setting the stage.

1.         The best “stage” on which to present evidence of psychological treatment is one which includes the following:

                                    (a)       Your client was “normal” before the incident causing pain.

(b)       Your client has weathered and survived other difficulties/injuries.

(c)       The chronic-pain-causing incident coincides with your client’s psychological problems.

                                    (d)       Your client wants to return to pre-chronic-pain          status.

(e)       There are no other factors in your client’s life which could cause the pain and/or psychological problems.

                        2.         Lay witnesses are perfect for setting the stage because:

                                    (a)       They have no stake in the outcome.

                                    (b)       They are more believable to the jury.     

                                    (c)       They relate interesting anecdotes.

                                    (d)       Together they add up to credibility.

                        3.         “Rules” in the use of lay witnesses:

                                    (a)       Use many — at least 8-10.

                                    (b)       They must tell a story.

                                    (c)       Cover all aspects of your client’s life:

                                                (1)       Work

                                                (2)       Hobbies

                                                (3)       Family

                                                (4)       Home

                                                (5)       Charity  

                                                (6)       Neighbors

                                    (d)       Be very brief with each witness — 5 – 10 minutes.

                                    (e)       No repetition.

                                    (f)        Spread them out throughout the trial.

                                    (g)       Save family members until last.

                                    (h)       Don’t be afraid of examples of her trying to do things.

                                    (i)        Look for examples that she has “kept her chin up.”

                        4.         Follow a careful and non-leading script:

                                    (a)       What is your name?

                                    (b)       How do you know Jane?

(c)       Did you know her before the accident of September 5, 1998?   Did you see her regularly?

                                    (d)       Have you seen her regularly since the accident?

(e)       Can you tell the jury if you noticed anything different about her after the accident?

(f)        Is she able to do the things now that she could do before the accident?

                                    (g)       Please provide some examples to the jury.

II.        The Treater

A.        By far your best choice as an expert.  Even if not appropriately credentialed, call to trial.

            B.        Don’t be afraid to bolster your treater with credentialed experts.

C.         It is important that your treater follow appropriate methods in evaluating and determining extent of impairments resulting from chronic pain.

            D.        The Guides (see IV below) recommend the following diagnostic methods:

1.         Review all available medical records and diagnostic studies.  Communication with previous health care providers may be needed.

2.         Obtain a complete medical history from the patient, speaking with persons in close contact with the patient as needed.  Include a family, work, and social activities history.  List affected daily activities.  

3.         Document all current complaints and the pain history.  The pain history should include a description of onset, location, quality, progression, character, intensity, variability, frequency, duration, migration pattern, precipitating and aggravating factors, epiphenomena, treatment, mediations, and other interventions used and results.

                        4.         Perform a complete physical and neurological examination.

                        5.         Arrange appropriate ancillary studies, for instance,                                                                 roentgenographic, magnetic resonance imaging, and                                                                         electomyographic studies.

6.         Psychological testing is an integral part of evaluating pain.  Using the Minnesota Multiphasic Personality Inventory has become standard.  Other instruments include the Cornell Medical Index Health Questionnaire, McGill Pain Questionnaire, Beck and Zung Depression Indices, and Westhaven-Yale Multi-dimensional Pain Inventory.

7.         Formulate a diagnostic impression based on the accumulated information.  This assessment should refer to the cause and classification of the pain, description of the biopsychosocial impact, and prognosis.

                        8.         Estimate the extent of the pain and impairment.

III.       The Expert

            A.        Expert testimony will be admissible if:

1.         The expert’s testimony will assist the trier of fact, and the person giving the testimony is qualified as an expert concerning the matters upon which his or her testimony is based.  Rule 702.

2.         Threshold inquiries regarding whether testimony will assist the trier of fact:

                                    (a)       Whether the expert testimony is relevant.

                                    (b)       Whether the expert testimony is reliable.

B.        In federal courts and some state courts, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), sets forth the methodology for a district court to follow when deciding whether to admit expert testimony based upon novel scientific evidence (often an issue in chronic pain syndrome cases):

                        1.         Whether the expert would testify to valid scientific knowledge, and

2.         Whether that testimony would assist the trier of fact with a fact at issue.

C.         Daubert lists inquiries which courts may use in determining whether to admit expert testimony.  If you can fit your psychological expert’s theory or technique under one or more of these, your odds of admissibility are better:

1.         Can the theory or technique in question be tested and, if so, has it been tested?

2.         Has the theory or technique been published and subjected to peer review?

3.         What is the known or potential rate of error when using the theory or technique?

                        4.         Do standards exist and, if so, were they employed here?

                        5.         Has the theory or technique been generally accepted?

            D.        Beware of “facts forming the basis of the opinion.”

1.         Rule 703 identifies three permissible sources of facts or data upon which the expert may base his opinion or inference:

                                    (a)       Firsthand perceptions.

(b)       Facts or information admitted in the hearing at which he is called to testify.

                                    (c)       Information made known to the expert before the hearing.

2.         Erroneous background information: See Walker v. Soo Line Railroad Co., 203 F.3d 581 (7th Cir. 2000).

(a)       Erroneous account of plaintiff’s educational background resulted in trial court not admitting testimony of psychologist.

                                    (b)       Seventh Circuit reversed:

(1)       The witness relied upon a proper scientific method because medical professionals may reasonably rely on self-reported histories.

(2)       The accuracy and truthfulness of the underlying history is subject to meaningful exploration on cross-examination.

(3)       The reversal was based on the exclusion of testimony from three experts, so it is unclear if there would have been a reversal on the psychologist alone.

3.         Self-reported history: See Cooper v. Carl A. Nelson & Co., 211 F.3d 1008 (7th Cir. 2000).

(a)       Plaintiff offered three medical expert witnesses to substantiate that he was suffering from chronic pain syndrome. All three relied on Mr. Cooper’s statements about his past medical history as the basis for a diagnosis that Mr. Cooper’s fall caused his CPS.  “I was free of pain before the fall, so my pain must be caused by the fall.”

(b)       The trial court believed that the physicians had no scientific basis for their testimony.

(c)       The Seventh Circuit reviewed Daubert and concluded that the trial court assumed an “overly aggressive role as gatekeeper:”

(1)       The methodology of physical examination and self-reported medical history employed by Dr. Richardson is generally appropriate.

(2)       The treater testified that a patient history indicating freedom from pain before a given event followed by pain of the type experienced and observed following the event was a sufficient basis for diagnosis and treatment of the CPS.

(d)       The Seventh Circuit said that the testimony should not have been excluded under Daubert solely on the ground that his causation diagnosis was based only on his patient’s self-reported history.  The case was remanded for the district court to revisit the issue of admissibility.

IV.       Chronic Pain is Permanent: Overcoming the Controversial Aspects.

A.        Guides to the Evaluation of Permanent Impairment, American Medical Association, Fourth Edition, 1995, Chapter 15, “Pain.”

                        1.         Refer your client’s treaters, and your experts, to this treatise.

                        2.         Use it when cross-examining defense experts.

            B.        Concepts to Embrace:

                        1.         Pain is subjective and cannot be measured objectively.

2.         Pain evokes negative psychological reactions, such as fear, anxiety and depression.

3.         Pain is perceived consciously and is evaluated in the light of past experiences.

4.         People usually regard pain as an indicator of physical harm, despite the fact that pain can exist without tissue damage, and tissue damage can exist without pain.

            C.         Chronic Pain – Definitions:

1.         Pain of long duration is commonly referred to as “persistent pain” with the term “chronic pain” being reserved for the devastating and recalcitrant type with major pyschosocial consequences.

(a)       Under the Guides definitions, persistent pain may exist in the absence of chronic pain, but chronic pain always presumes the presence of persistent pain.

                        2.         Chronic pain is a process which is:

                                    (a)       Self-sustaining

                                    (b)       Self-reinforcing

                                    (c)       Self-regenerating

                                    (d)       Persistent

                                    (e)       Long-lived

                                    (f)        Progressive

3.         Chronic pain is not a symptom of an underlying acute somatic injury, but rather a destructive illness in its own right.

4.         It is an illness of the whole person and not a disease caused by the pathologic state of an organ system.

                        5.         Pain perception is markedly enhanced.

6.         Pain-related behavior becomes maladaptive and grossly disproportional to any underlying noxious stimulus, which usually has healed and no longer serves as an underlying pain generator.

            D.        Chronic Pain and Functional Capacity.

1.         Pain may be viewed as an impairment that should be assessed according to the individual’s residual functional capacity.  

2.         Chronic pain and pain-related behavior are not, per se, impairments, but they should trigger assessments with regard to ability to function and carry out daily activities.

3.         Chronic pain that is not recognized and property treated results in a deterioration of coping mechanisms.  Under such circumstances, limitations of functional capacity are apt to occur.

            E.         Chronic Pain is not a Psychiatric Disorder.

            F.         The Eight D’s (Diagnostic Characteristics) of Pain:

(1)       Duration:  In the past, the term “chronic pain” has been applied to pain of greater than 6 months’ duration; however, current opinion is that the chronic pain syndrome can be diagnosed as early as 2 to 4 weeks after its onset.  Prompt evaluation and treatment are essential.

(2)       Dramatization:  Patients with chronic pain display unusual verbal and nonverbal pain behavior.  Words used to describe the pain are emotionally charged, affective, and exaggerated.  Patients may exhibit maladaptive, theatrical behavior, such as moaning, groaning, gasping, grimacing, posturing, or pantomiming.

(3)       Diagnostic Dilemma:  Patients tend to have extensive histories of evaluations by multiple physicians.  The patient has undergone repeated diagnostic studies, despite which the clinical impressions tend to be vague, inconsistent, and inaccurate.

(4)       Drugs:  Substance dependence and abuse involving drugs and alcohol is a frequent concomitant.  Patients are willing recipients of multiple drugs, which may interact adversely.  Often they consume excessive amounts of prescribed drugs.

(5)       Dependence:  These patients become dependent on their physicians and demand excessive medical care.  They expect passive types of physical therapy over long time periods, but these provide no lasting benefit.  They become dependent on their spouses and families and relinquish all domestic and social responsibilities.

(6)       Depression:  The condition is characterized by emotional upheaval.  Patients tend to have psychological test results that suggest depression, hypochondriasis, and hysteria.  Cognitive aberrations give way to unhappiness, depression, despair, apprehension, irritability, and hostility.  Coping mechanisms are severely impaired.  Low self-esteem results in impaired self-reliance and increased dependence on others.  

(7)       Disuse:  Prolonged, excessive immobilization results in secondary pain of musculoskeletal origin.  Self-imposed splinting may be validated by misguided medical directives to be “cautious,” and this can result in progressive muscular dysfunction and generalized deconditioning.  The secondary pain further aggravates and perpetuates the reverberating pain cycle.

(8)       Dysfunction:  Having lost adequate coping skills, patients with chronic pain begin to withdraw from the social milieu.  They disengage from work, drop recreational endeavors, tend to alienate friends and family, and become increasingly isolated, eventually restricting their activities to the bare essentials of life.  Bereft of social contacts, rebuffed by the medical system, and deprived of adequate financial means, the patient becomes an invalid in the broadest sense: physical, emotional, social and economic.                       

[Note: all material in Section IV is from Chapter 15 of Guides to the Evaluation of Permanent Impairment, American Medical Association, Fourth Edition, 1995.]

V.        Practical Considerations

            A.        Your client must be legitimate.

            B.        Your treater must believe in your client and:

                        1.         Appropriately evaluate his/her chronic pain.

                        2.         Appropriately treat his/her chronic pain.

            C.         Your expert must believe in your treater and in your client.

D.        You must lay the ground work so that the jury believes your client, your treater and your expert.