Legal Update #25 Daubert, Joiner, Kumho, Fry and Mohan: It’s Not Easy Being an Expert

NLBC LEGAL UPDATE: December, 2006 - Issue #25

Sam Goldstein, Ph.D., Editor
Complimentary Service of the Neurology, Learning and Behavior Center

Daubert, Joiner, Kumho, Fry and Mohan: It's Not Easy Being an Expert

In the past ten years I have had the privilege of evaluating somewhere between 200 and 250 individuals throughout the life span in forensic matters. Though many in the legal system may view psychological and neuropsychological experts as operating primarily on belief absent much in the way of science, I have come to appreciate and respect the rigor and adherence to scientific principles required to serve as an expert and advisor to the court. I have also come to consider my field, which I will broadly refer to as forensic psychology, as having a relationship with the legal system akin to latency age siblings. When we agree, life is great. When we disagree, get out of the way. As a cornerstone of our justice system is built upon adversarial and advocacy tenets, agreements and disagreements between experts and attorneys occur at about equal frequency. I have also come to consider science and the justice system as so near and yet so far. It is as if they reside at opposite ends of the galaxy with the proverbial "worm hole" between them, allowing them to appear so close yet in basic tenets, principles and operation, so far apart. I have come to strongly believe that the trier of fact - jury or judge - is entitled to basic education from experts about the field in which they testify as a critical foundation for appreciating, understanding, interpreting and most importantly valuing their testimony.

In this Legal Update, I will briefly review judiciary findings relative to experts and suggest that these findings may have their ultimate value in guiding the ethics of forensic practice not in guiding the courts. To exemplify this recommendation I will briefly review current research in the areas of pain and Post Traumatic Stress Disorder, particularly highlighting the differences between commonly held perceptions relative to specific issues in these conditions and the available scientific literature.

In 1993, Daubert vs. Merrell Dow Ph.armaceuticals held that the then General Acceptance Test (Fry vs. United States, 1923) was superceded by the Federal Rules of Evidence and that general acceptance was not a necessary pre-requisite for admissibility of expert testimony. Under Federal Rule of Evidence 702, the Supreme Court ruled that "all relevant evidence is admissible." Whether Utah courts require experts to meet Daubert standards or not, these guidelines offer important ethical boundaries for experts. The four official Daubert guidelines, as outlined in Kumho Tire Company vs. Carmichael (1999) include: (1) whether the theory being proffered can be tested and falsified; (2) whether the theory or technique has been subjected to peer review and publication; (3) that consideration be given to the known or potential rate of error of the theory; and (4) that there is a general acceptance of the particular theory or technique within the scientific community. These four guidelines in fact form the basis of scientific thinking. When theories are proposed that do not meet these four guidelines, they fall within the realm of pseudoscience. The value of expert testimony is significantly compromised when experts dress up their theories in pseudoscientific thinking. Five additional guidelines have been discussed by the courts. These should also serve as key ethical guideposts for psychology experts. These are: (1) the testimony pertains to scientific knowledge; (2) the testimony assists the trier of fact to understand the evidence or to determine a fact; (3) the methodology can be properly applied to the facts; (4) the existence and maintenance of standards by which certain techniques are used; and (5) that the evidence is trustworthy.

I recognize that the Supreme Court did not intend that Daubert constitutes a checklist. These guidelines can be applied as deemed appropriate by the trial judge. Not all criteria need be applied and those that are applied can be assigned differential weighting. Further, I understand the Daubert criteria applies specifically to methods and theories not opinions and conclusions. Admissibility of methods and theories are for the judge to determine in his or her role as gatekeeper and therefore it falls upon the shoulders of the expert to provide the judge with the data and science necessary to reasonably meet this role.

The Supreme Court has further ruled (Barefoot vs. Estelle, 1983) that if a psychological expert is testifying on the basis of his or her clinical experience, rather than the state of the science of psychology, a different standard is applicable before this type of testimony is admissible. The Court may give greater or lesser weight after cross examination, and, if presented, after contrary evidence by the other party. However, when opinion is based, at least in part, on scientific theory and research (e.g., even a psychological test or diagnostic syndrome) that testimony should be subject to more rigorous scrutiny. As noted in an interesting article appearing in the Journal of Forensic Psychology Practice in 2001 by authors Shuman and Sales, Daubert is most important because it reminds mental health professionals of their ethical obligations to be aware of the latest research in the areas about which they testify and to offer valid and reliable information to the court that is obtained with appropriate methodology. These authors note that experts must be prepared to present evidence that their methodology in a given case is reliable and valid. They must prepare in each and every case for a Daubert challenge in cross examination.

Predicting the Onset of Post Traumatic Stress Disorder (PTSD)

In a recent excellent review study, O'Donnell and colleagues suggest that forensic evaluators exercise prudence when making claims about PTSD based on the literature. For example, a number of studies have generally identified that symptoms of PTSD are more severe in populations who are undergoing litigation. This is consistent with reports from the combat veterans psychiatric literature that individuals may over-report psychiatric symptoms in order to obtain disability related compensation. However, a number of well-designed studies with injury populations have found that PTSD symptom severity is not a function of compensation settlement. That is, even after a settlement those with PTSD do not necessarily get better. In regards to PTSD related to motor vehicle accident, litigation has not been found to have an effect on return to work status. Similar proportions of those who had settled or not settled their compensation were receiving psychological therapy. Litigation is likely best seen as a secondary stressor that adds to the ongoing traumatization of injury survivors. Understanding the effects of litigation on PTSD following injury is still in its infancy.

Two major meta-analyses (studies that combine other studies to increase sample size) find that although multiple person-level factors (e.g., pre-accident adjustment, family history, psychopathology, etc.) are associated with a higher likelihood of development of PTSD post-accident, there is yet to be any evidence for a straightforward causal model. The waxing, waning and length of PTSD symptoms experienced appears to be unique to each individual. From a forensic point of view, this state of affairs makes it difficult to predict in every case why, how and for how long PTSD symptoms will present, evolve and maintain.

Cognitive Functioning in Chronic Pain

Like all scientific theories, theories of pain have evolved as the result of accumulated evidence. The popular current theory of pain was first proposed in 1965. The Gate Control Theory of pain proposes that a gating mechanism controls the amount of pain that is experienced in the brain. This model incorporates psychological factors as not just reactions to pain but as an integral part of pain processing. Researchers continue to search for specific personality or psychosocial factors that predispose some individuals to develop pain problems and others not. Current theories employ a biopsychosocial approach in which the mental health needs of individuals require careful evaluation and treatment along with the physical components of their pain. Pain patients most commonly demonstrate problems with depression, anxiety and substance abuse. There is a close association between chronic pain, depression and suicide. As pain becomes chronic, emotional factors appear to play an increasingly dominant role in pain maintenance, dysfunction and suffering.

In a series of articles beginning in 1991, Gatchel developed a three stage conceptual model to further understand the transition from acute to chronic pain disability and accompanying psychosocial distress. In the acute phase, individuals experience a normal reaction (e.g., anxiety and worry) to pain. However, if pain exists beyond two to four months, individuals enter a second stage in which physiological, behavioral and personality problems are often exacerbated. Learned helplessness, anger, distress and somatization are typical of individuals in this stage as they begin to worry that their pain may never cease. Finally, beyond eight months, individuals enter a chronic phase of pain. As the result of pain and the stress it creates the individual's life begins to revolve around his or her pain and the behaviors that maintain it. Often these individuals become accustomed to the avoidance of responsibility in the quest to avoid pain.

Gatchel and Kishino recently provided an excellent set of guidelines that forensic evaluators need to consider in pain evaluations. These include:

1. There is no specific pain prone personality.

2. One can not automatically assume on an apriori basis that one assessment method of personality will be more valid or reliable than others in pain assessment.

3. The common denominator of all assessment methods is the validity, reliability and predictive value of these methods.

4. One cannot assume that one assessment measure of pain will necessarily be more valid or reliable than another.

5. A physical measure of pain will not always be more objective than self-reported psychosocial measures.

6. An individual's performance during assessment can be greatly influenced by multiple factors.

7. Neither personality assessment nor pain assessment is an exact science. As such causality can rarely be unequivocally proven. Forensic experts, therefore, should focus on making probability statements rather than cause and effect statements.

The claim that there is an abundance of strong evidence for cognitive risk factors in pain populations appears to be based on misconception or myth. Although systematic reviews of psychological factors and their influence on pain and disability in pain patients have concluded there is strong evidence for a role played by a variety of these factors, including catastrophizing, coping strategies, helplessness, personality traits and fear avoidance; when objective criteria are used to assess the quality of the evidence, limited support is generated that pain causes cognitive dysfunction. However, the evidence is strong enough to suggest that research continue and that daily cognitive functioning (e.g., memory, attention, etc.) can to some extent be adversely affected by chronic pain.

Conclusion

Though our judicial system trusts in the common sense and reasoning of the average juror to judge and evaluate the evidence effectively and efficiently, judges and juries need forensic experts to operate on sound ethical principles offering the courts testimony based on accepted science. Findings of Daubert and others can and should offer a set of guidelines for forensic experts. It is not easy being an expert nor, should it be.

Selected References

Blanchard, E.B., Hickling, E.J., Frieidenberg, B.M., Malta, L.S., Kuhn, E., & Sykes, M.A. (2004). Two studies of psychiatric morbidity among motor vehicle accident survivors one year after the crash. Behavior Research and Therapy, 42, 569-583.

Blanchard, E.B., Hickling, E.J., Taylor, R., Buckley, T.C., Loos, W.R., & Walsh, J. (1998). Effects of litigation settlements on post traumatic stress symptoms in motor vehicle accident victims. Journal of Traumatic Stress, 11, 337-354.

Bruin, C.R., Andrews, B., & Valentine, J.D. (2000). Meta-analysis of risk factors for post traumatic stress disorder in trauma-exposed adults. Journal of Consulting and Clinical Psychology, 68, 748-766.

Bryant, R.A., & Harvey, H.E. (1995). Avoidant coping style and post traumatic stress disorder following motor vehicle accidents. Behavior Research and Therapy, 33, 631-635.

Dersh, J., Polatin, P., & Gatchel, R. (2002). Chronic pain and psychopathology research findings and theoretic considerations. Psychosomatic Medicine, 64, 773-786.

Gatchel, R.J., & Kishino, N. (2006). Influence of personality characteristics of pain patients: Implications for causality in pain. In G. Young, A. Cane and K. Nicholson. Psychological Knowledge in Court. New York, NY: Springer.

Gatchel, R.J., Polatin, P.B., & Kinney, R.K. (1995). Predicting outcome of chronic back pain using clinical predictors of psychopathology: A prospective analysis. Health Psychology, 14, 415-420.

Mayou, R.A., Ehlers, A., & Bryant, B. (2002). Post traumatic stress disorder after motor vehicle accident: Three year follow-up of a prospective longitudinal study. Behavior Research and Therapy, 40, 665-675.

Melzack, R., & Wall, P.D. (1965). Pain mechanisms: A new theory. Science, 150, 971-979.

O'Donnell, M.L., Cramer, M., Bryant, R.A., Schnyder, U., & Shalev, A. (2006). Post traumatic disorders following injury: Assessment and other methodological considerations. In G. Young, A. Cane and K. Nicholson. Psychological Knowledge in Court. New York, NY: Springer.

Oser, E.J., Best, S.R., Lipsey, T.L., & Weiss, D.S. (2003). Predictors of post traumatic stress disorders symptoms in adults: A meta-analysis. Psychological Bulletin, 129, 52-73.

Pincus, T., Burton, K., Vogel, S., Field, A. (2002). A systematic review of psychological risk factors for chronicity/disability in prospective cohorts of low back pain. Spine, 27, 109-120.

Shuman, D.W., & Sales, D.B. (2001). Daubter's wager. Journal of Forensic Psychology Practice, 1, 69-77.

The Neurology, Learning and Behavior Center provides clinical and forensic assessment, case management, trial consultation and treatment services for children and adults with brain injury and dysfunction, Attention-Deficit Hyperactivity Disorder, language disorders, learning disability, developmental delay, emotional disorders, Autism and adjustment problems. The Center is dedicated to the provision of treatment services.