Oregon's Supreme Court held, once again, that experts may not provide opinions on whether another witness is truthful. Although State of Oregon v. Lupoli involved allegations of child abuse, its ruling on the law of evidence will help personal injury and car accident victims fight against bogus defense arguments. This post summarizes the key points.
For decades, Oregon Law has prohibited one witness from testifying on whether he believes another witness is telling the truth. (E.g., State v. Middleton). Yet, insurance companies continue to hire experts to call injured people liars. The basic scenario is this. Defendant hires a neurologist to testify that she does not find any "objective evidence" of pain, suggesting the problem is psychological. Next, the defense psychologist testifies that the person is malingering or scored high on something called the "fake bad scale."
Funny, no one tries to offer polygraph test evidence, yet defendants continue to offer voodoo lie detector tests as evidence. Unfortunately, some plaintiff's lawyers and judges let them get away with it.
The problem with a diagnosis of malingering is that it is an opinion that the injured person is lying. According to the DSM IV, "The essential feature of malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives such as . . . obtaining financial compensation." Under Oregon law, no such opinion is admissible.
The "Fake Bad Scale" was created by a defense expert. He (1) selected a relative small number of questions out of the well-regarded pencil-and-paper test (MMPI), (2) created his own scoring system, and (3) said that if you hit a certain score, you must be faking you injury. Somehow, insurance company defense attorneys claim that this is more reliable than a polygraph test and should be offered to a jury. Fortunately, some judges look at the questions selected by the expert, look at Oregon Law, and say, "Baloney, not in my court."
The take home message: civil trial lawyers must use criminal law precedents when protecting their personal injury clients from bogus defense tactics.
Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
http://www.jeffmerrick.com 503-665-4234
The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.
