A Tale of 2 Experts: Evaluations of witnesses depend on whom you ask
Marcel Strigberger.
Are experts objective? In most jurisdictions they prepare reports setting out their findings and expert opinions. In the province of Ontario where I practiced, experts are expected to actually deliver a certificate attesting to their impartiality. Then again, this season the Toronto Blue Jays no doubt expected not to get swept in the first round of the postseason.
Not surprisingly, in any one case the expert opinions are generally on the opposite ends of the spectrum.
I have noticed that most psychiatric reports will assess the same accident victim in diametrically opposed ways.
For example, let’s take a case of a 50ish-year-old European woman who was a restaurant worker but who has not been able to resume work since her car accident. The plaintiff and defendant psychiatric reports to the respective lawyers might read as follows:
The plaintiff’s medical assessment
I am an associate professor of psychiatry at the University of Toronto, with special interest in chronic pain.
Visit
Your client arrived 15 minutes early. This to me suggests someone who is very responsible. She was dressed casually, wearing blue jeans, obviously not being pretentious.
The catastrophic accident
She was a vivid historian. She described that she was stopped when suddenly she was struck forcefully from the rear by a cement truck. She related, “I thinking I hit by atomic bomb. I dead for sure.”
History
She advises that she was born and raised in rural Hungary, the youngest of eight children. Her mother was Hungarian, and her father, a shepherd from Greece, came to seek his fortune in Hungary. He also dabbled in bicycle repairs.
Her mother was a heavy smoker. Her dad was an altruistic gentleman, spending much of his spare time asking people if he could fix their bicycle flats.
She is presently married to Victor, the owner of Victor’s Delicious Deli in Toronto. Until the accident, she assisted her husband in running the deli.
Examination
She had good eye contact. She is constantly in pain. She has had to stop working at the deli, as, “I no longer able to lift anything. Even a pastrami sandwich with a pickle … no way … I feel useless.”
When asked to count backward by sevens from 100, she got stuck at 90. I handed her a facial tissue as her eyes started to moisten.
Impressions
There is no doubt that this lady suffers from depression and severe chronic pain syndrome. Like her father, she was a workaholic who demanded 100—or rather, 107%—from herself. Now she is totally unable to work. Her condition is entirely attributable to the motor vehicle accident.
The prognosis is guarded.
Sincerely,
C. Jackson Smithfield, MD
The defense medical assessment
I am an associate professor of psychiatry at the University of Toronto, with special interest in malingering.
I read the medical brief that you sent along, including the report of Dr. Smithfield.
I shall say no more about his report. I’ll confine mine to nonfiction.
Visit
The subject woman arrived 15 minutes early. This demonstrates preexisting chronic anxiety. She just can’t wait to get her hands on that insurance money.
She was dressed sloppily in blue jeans trying to impress me with her humility.
The incident (???)
When she was allegedly tapped by another vehicle, she says she was fully stopped. I can’t imagine someone this anxious actually stopping for anything.
She exaggerated, magnifying the size of the offending vehicle and indicating that it was a cement truck. When I asked her once again what type of car it was, she again insisted it was a cement truck. She was nonrepentant.
She then said in describing the light jolt, “I dead for sure.” She said this with the air of certainty that only a malingerer uses.
History
It’s obvious she learned her greed from her parents. Her father gave up the tranquil life of being a shepherd in Greece to carry on cross-border smuggling of stolen bicycle parts. It was the least he could do to keep his neurotic wife in her lavish smoking habit.
The subject was the youngest of eight children and, no doubt, a spoiled brat.
Examination
Her eye contact was nonexistent as she repeatedly buried her face in a Kleenex tissue. She was very hostile and anxious when I grabbed the box of Kleenex and hid it in my microwave oven.
She indicated she could do nothing at all at her husband’s deli, saying, “I completely useless.”
Not surprisingly, however, on further questioning, she was readily able to count pastrami sandwiches by sevens.
And to avoid any misunderstanding, I asked her three times whether her father knew how to fix bicycles, and she was adamant that he did.
Impressions
This lady is your classical malingerer. She falls squarely within the parameters of the F.T. (Faker’s Test). I speak, of course, of the seminal test developed by noted psychiatrist Dr. August Strondenberg of the University of Gothenburg. There is a perfect match with all of the professor’s DSM-XVL indicia, which lead to the inescapable conclusion of malingering:
- Her father was a disenchanted shepherd who developed a fetish with bicycles.
- Her mother was chain-smoker.
- The subject spent years working in a delicatessen.
- Her favorite number is seven.
- She chose to marry a man called Victor, who, as the name suggests, is a megalomaniac.
I have no doubt that once this lawsuit ends, the subject will achieve a complete recovery of these alleged injuries.
Sincerely,
Mortimer (Syd) Golden, MD
You get the picture.
And given that these types of dueling reports are so common, I have an idea that will save litigants thousands of dollars in expert’s fees: Why not allow the lawyers to write the reports for both sides? I, for one, can do it easily. I would collect the best talents of each of these usual suspect shrinks and conscientiously prepare both reports under different noms de plume. And my fee for both would be a lot less than what each currently charges for one report.
And of course, these reports would be flawless, as I would sign two of those mandatory forms, certifying that I am objective, unbiased and neutral.
How’s that for justice?
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. His just-launched book is Boomers, Zoomers and Other Oomers: A Boomer-biased Irreverent Perspective on Aging. For more information, visit MarcelsHumour.com and follow him at @MarcelsHumour on Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
