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The difficult plaintiff: the influence of somatoform disorders in civil tort.

THERE are certain matters common in personal injury litigation wherein a plaintiff alleges physical and/or mental loss secondary to an injury. The medical expert for the plaintiff testifies that this is a common condition, organic in origin. The expert for the defense testifies that the alleged complaint is not a result of the incident. There is invariably comment that the condition may have been preexisting, or implication that the plaintiff is malingering. Neither the medical nor the legal professions have ever fully addressed or better described the matter. This paper attempts to do so.

The term fragile egg traces its origins to English common law. In Dulieu v. White & Sons [1901] 2 KB 669, the plaintiff, a pregnant barmaid, suffered shock followed by illness and the premature birth of her child when a cart and runaway horses crashed through the pub where she was working. Kennedy J explained in dicta: "If a man is negligently run over, it is no answer to the sufferer's claim of damages that he would have suffered less injury or no injury at all, if he had not had an unusually thin skull or an unusually weak heart." In personal injury, the fragile egg is an individual who was physically predisposed or organically susceptible to a given injury. When this involves straightforward physical injury such as a broken leg, it is easy to explain. When this involves an unrelated psychological condition, it becomes more difficult to explain.

In this paper, the authors suggest a new legal explanation and call it a rotten egg plaintiff case. The rotten egg is the individual with preexisting, non-proximate psychological issues who sustains an injury not fully explained on a physical or organic basis. This individual complains of substantial, even incapacitating, resultant injury. Typically, this individual is involved in an accident with or without substantial injury, consults an attorney and is referred to a medical practitioner. The practitioner diagnoses and treats the individual, and has a vested interest in insurance or other coverage. Moreover, the practitioner testifies as an expert witness that the current physical ailment is real, will require ongoing treatment, and is a direct result of the injury. These cases are typically difficult to mediate and/or litigate.

Who is the Typical Rotten Egg Plaintiff?

The plaintiff, Ms. P, is a 36 year-old divorced housewife with two children, disabled from her current employment as a manicurist. Ms. P was involved in a motor vehicle accident three years prior. She was a restrained driver stopped at a red light. A car behind her struck her car at five miles per hour. Ms. P's car was a newer model SUV and sustained $2,000 worth of damage.

Still employed at the time, she drove herself to work following the accident. That afternoon, she began to feel some tightness in her neck and, at the recommendation of her friends, called an attorney who advised her to visit an emergency room immediately.

The emergency room staff performed a thorough examination and diagnosed Ms. P with musculoskeletal injury and recommended ice, immobilization of her neck with a C-collar, non-steroidal anti-inflammatory agent, and follow up with her primary care physician in one week. Her attorney recommended she consult with a chiropractor, who initiated immediate chiropractic treatment. One week later, the chiropractor pointed out pain and discomfort around the temporomandibular joint and made the diagnosis of temporal mandibular joint (TMJ) disorder. Ms. P was referred to a dentist and received an oral splint, which was adjusted weekly. When she failed to make rapid improvement, an oral surgeon was consulted. The oral surgeon, Dr. O, recommended arthroscopic surgery, but as Ms. P did not have insurance, this procedure was not performed.

Dr. O was retained as an expert by the plaintiff. Dr. D, a local university Head and Neck Surgeon with expertise in TMJ matters, was retained by the defense.

At trial, Ms. P testified she had never suffered TMJ problems prior to the motor vehicle accident. The TMJ symptoms, first noted several days following the accident, had worsened over time and were now so severe she was unable to work. Her life was in shambles, she was constantly traveling from dentist to chiropractor without medical insurance, and she was unable to pursue the recommended surgical therapies.

Dr. O, testifying on behalf of the plaintiff, described the original, theoretical whiplash hypothesis for TMJ. He indicated that TMJ was a common problem and that fifty to sixty percent of his practice was focused on TMJ. He had many patients with similar to identical injury. He further opined that the literature supported his beliefs and that there were books, conferences, and publications all describing TMJ whiplash. When asked about his impression of the opinions expressed by the defense expert in deposition, he commented that as a Head and Neck Surgeon, the defense expert had little training or expertise in the dental matters of TMJ and that only a small percentage of this expert's practice involved TMJ.

Dr. D, the expert for the defense, testified that based on review of records and independent medical examination, the plaintiff had been restrained in a low impact rear end collision and had not sustained trauma to the face, mandible or temporomandibular joint. Furthermore, unlike known traumatic injuries in which pain is present immediately, Ms. P's complaints were not noted until two weeks following the accident. Dr. D also opined that the literature supporting TMJ whiplash was theoretical and anecdotal. Studies with superior scientific methodology demonstrated that while TMJ was a common complaint, it was no more common in those with whiplash motor vehicle injuries than it was in the general population, absent whiplash trauma. In fact, he testified, in areas such as Europe where whiplash is not compensated, TMJ whiplash is a nonexistent entity.

Dr. D further opined that in his 30 years of medical practice at a university trauma center, he had seen thousands of patients who had suffered trauma to the mandible, many sustaining fractures of the mandible, one-third of which involved the TMJ. Virtually none of these resulted in long term TMJ dysfunction. He pointed out that in all his years of practice, he had never once seen TMJ whiplash in anyone other than a plaintiff. He concluded by saying that TMJ was a very common complaint and the common etiologies were malocclusion, stress, clenching and bruxism. Ms. P indeed had reported bruxism on previous dental records and her posttraumatic radiographs showed a TMJ condition consistent with a chronic, not acute, condition. Ultimately, it was his opinion, in all medical probability, that while the patient suffered TMJ dysfunction, this was not related in a causal fashion to the motor vehicle accident.

Jury deliberations were unable to come to conclusion on the proximate cause of the TMJ problem. Both experts were informative, entertaining, and credible. Both attorneys were pleasant, respectful, and sincere, and they presented their cases well. The jury had difficulty believing that a five mile per hour rear end injury could result in such significant problems, but did feel sorry for the plaintiff. Consequently, the ultimate jury decision is invariably arbitrary. One day it could swing in favor of the plaintiff if the jury feels sympathetic or particularly likes the plaintiff expert or attorney; another day it could swing in favor of the defense if they find the injury to be minor, the plaintiff unimpressive, and/or they particularly like the defense attorney or expert.

At the heart of the problem is that defendants, and their attorneys and experts, have not yet had a positive theory with which to combat the long-running axiom in tort law that a negligent actor takes his victim as he finds him, no matter how fragile the egg. The classic law school "eggshell plaintiff' was one whose preexisting physical conditions--active, dormant or latent--were fired up by an accident, without which the injuries would not have occurred. The question in this case is whether Mrs. P is such an eggshell plaintiff, whose injuries are compensable.

Following the authors' proposed theory, she is instead an individual with non-proximate, underlying, difficult to diagnose, psychological disease who has somatized her illness. In other words, hers is a case of straight forward psychological etiology here, as in many cases, a somatoform disorder.

The psychological basis of this rotten egg condition is an individual suffering from repressed emotional disturbance including anger, depression, anxiety, or another personality disorder. Dorland's Medical Dictionary defines repression as: 1) the act of restraining, inhibiting, or suppressing, and 2) in psychiatry, an unconscious defense mechanism in which unacceptable ideas and impulses are thrust out or kept out of consciousness. Often, the patient is unaware of the underlying problem, which could range from childhood molestation, rape, parent(s) with substance abuse, latent homosexuality, or other early psychological trauma. The patient does not actively know the psychological issues; in other words, she is unaware of the issues that are repressed or suppressed.

Such an individual is prone to physical complaint, called somatization, and in psychiatry, referred to as a somatoform disorder. The Merriam-Webster Medline Plus medical dictionary defines somatization as "conversion of a mental state (such as depression or anxiety) into physical symptoms, also: the existence of physical bodily complaints in the absence of a known medical condition."

The Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders elucidates as follows:
      Common feature is the presence
   of physical symptoms that suggest a
   general medical condition (hence, the
   term somatoform) and are not fully
   explained by a general medical
   condition, by the direct effects of a
   substance, or by another mental
   disorder (e.g., Panic Disorder). The
   symptoms must cause clinically
   significant distress or impairment in
   social, occupational or other areas of
   functioning. In contrast to Factitious
   Disorders and Malingering, the
   physical symptoms are not intentional
   (i.e., under voluntary control).
   Somatoform Disorders differ from
   Psychological Factors Affecting
   Medical Condition in that there is no
   diagnosable general medical
   condition to fully account for the
   physical symptoms. The grouping of
   these disorders in a single section is
   based on clinical utility (i.e., the need
   to exclude occult general medical
   conditions or substance-induced
   etiologies for the bodily symptoms)
   rather than on assumptions regarding
   shared etiology or mechanism. These
   disorders are often encountered in
   general medical settings. (1)


Somatoform disorders encompass, but are not limited to, 1) Somatization Disorder (historically referred to as hysteria or Briquet's syndrome), a polysymptomatic disorder that begins before age thirty years, extends over a period of years, and is characterized by a combination of pain, gastrointestinal, sexual and pseudoneurological symptoms; 2) Conversion Disorder, involving unexplained symptoms or deficits affecting voluntary motor or sensory function that suggest a neurological or other general medical condition--psychological factors are judged to be associated with the symptoms or deficits; 3) Pain Disorder, characterized by pain as the predominant focus of clinical attention--here also, psychological factors are judged to have an important role in its onset, severity, exacerbation or maintenance; and 4) Hypochondrias, the preoccupation with the fear of having, or the idea that one has, a serious disease based on the person's misinterpretation of bodily symptoms or bodily functions. (2)

A 2005 article in the Journal of the Medical Association (JAMA) estimates over ten percent of adult patients seeking healthcare in the United States suffer from some degree of a somatoform disorder. (3) Moreover, aside from the somatoform disorder variation of the rotten egg phenomenon, the spectrum of underlying psychopathologies comprises other mental health issues such as depression, anxiety, impulse-control disorders, or mood disorders. According to a recent Morbidity and Mortality Weekly Report, in any given year, approximately twenty-two percent of the U.S. adult population has one or more diagnosable mental disorders, and the estimated lifetime prevalence for any of the aforementioned mental disorders is forty-six percent. (4)

It should be little surprise that the prevalence of mental health disorders has a corresponding impact on civil tort as well; affected individuals contribute disproportionately to personal injury lawsuits and the resultant medical costs. A 2005 article in the Archives of General Psychiatry documents the magnitude of the problem. Primary care and specialty visits are more common. (5) Hospital admissions are more common. In-patient expenses are five times higher; out-patient costs are two times higher. Moreover, the estimated national expense from somatization in 2005 was $256 billion annually. (6)

The challenging question is how one diagnoses, explains, and then proves the rotten egg phenomenon. The answer is that this diagnosis and explanation are difficult to prove. To unravel these types of complex psychological issues would require a motivated patient, a skilled psychotherapist and six to twelve months of twice weekly appointments. No expert, plaintiff or defense, could ever prove or disprove the psychological contribution in one or two examinations. Psychiatric examination can be requested. Unfortunately, one can always find a psychiatrist who will argue the patient is mentally well and another who will argue that the patient is mentally ill. If a jury were to have difficulties understanding the different opinions between the medical experts, they would find the differences between the psychiatric experts to be even more confusing.

What value is an explanation that cannot be proven? In rotten egg litigation, attorneys will likely agree that the jury decision too often boils down to which experts, attorneys, and litigants the jury liked and believed. The problem is that defense experts invariably opine there is no organic explanation while the plaintiff experts opine that there is; the jury is often left with no concrete explanatory basis to develop its verdict.

The rotten egg provides logical, easily understood, positive alternate explanation for the onset of the symptoms. Somatization supplants the organically tenuous collision explanation as the "proximate" cause of injury. Stated simply, where there is not an organic cause of an injury, then there is by implication a psychological cause. If the egg is not fractured, then by exclusion, it must be rotten.

The Rotten Egg and Causation

The rotten egg opinion is clearly a defense opinion. Plaintiff's attorneys would be expected to make two arguments.

The first argument that plaintiff's counsel will likely raise is that the stress influencing the injury is a direct result of the tort. After all, they will argue--and longstanding principles of tort law may support this position--that none of the plaintiff's extraordinary injuries would have developed if the tort had not occurred.

In response, the authors suggest that the question of whether a low-velocity crash resulting in no physical damage to the mandible or temporomandibular joint can precipitate the crippling symptoms of a TMJ-type disease in an egg that may be rotten must be examined both from the perspectives of proximate and "but-for" causation. Because this discussion is not particular to any jurisdiction, the above contention draws very generally from common-law tort causation concepts, which Judge Campbell of the First Circuit has neatly summarized:
      Causation in tort law is generally
   divided into two concepts: causation
   in fact, or actual causation, and
   proximate or legal causation. See W.
   Page Keeton et al., Prosser & Keeton
   on Torts [section][section] 41-42 (5th ed. 1984).
   The terms for these two concepts are
   sometimes confused, as are the
   concepts themselves. Regardless of
   the terminology, however, there are
   two questions that must be answered
   to determine if a defendant's conduct
   "caused" a plaintiffs injury. The first
   question is whether there was in fact
   some causal relationship between the
   conduct and the outcome. The
   Restatement expresses this test as
   whether the defendant's conduct was
   a "substantial factor" in producing the
   harm. Id. The second question is
   whether the circumstances and causal
   relationship are such that the law will
   impose liability on the defendant.
   Sometimes this is expressed as a
   foreseeability test, see Keeton, supra,
   [section] 42, at 273. Cf. Restatement
   (Second) of Torts, [section] 431(b) (1965). (7)


How, then, does one draw a line between a fragile and a rotten egg, and does the introduction of such a theory redefine the foreseeability test? The answer may lie in other substantial factors and indicators of the rotten egg pathology.

It is the experience of the physician author that the classic rotten egg complaints such as whiplash and TMJ are common among plaintiffs and uncommon among defendants or those involved in injury not undergoing litigation. Moreover, it is interesting that the rotten egg plaintiff in a defense-requested independent medical examination (IME) rarely has interest in the expert's opinion; these contentions are based on a twenty-five year practical experience of well over a hundred IME's. If one provides medical advice at the time of the IME, these patients are uninterested. This is particularly peculiar, as the defense experts are often the best practitioners the individual will ever meet.

The prevailing psychiatric literature indicates that the somatizing patient denies psychosocial influence on their somatic complaints and resists psychiatric referral. (8)

Most tragically, the somatizing patient does not improve with medical management. (9)

When such a patient is presented an opportunity for a "real," organic complaint--a complaint reinforced and legitimized by plaintiff's health care practitioners and attorney--it is only natural for her to believe and live the physical condition. The impact of protracted litigation is stressful and burdensome and compounds the psychic turmoil. Previous literature by a noted forensic psychologist has attempted to explain the effects of litigation as follows:
      Conditions of protracted
   litigation constitute a significant class
   of stressors whose impact has been
   little understood in psychology,
   medicine, or law. People are placed
   differentially at risk for intensified
   symptom expression, retarded
   recovery and inaccurate attribution of
   causation during the period in which
   litigation remains pending. Effects
   differ as a function of interactions
   among (a) causes of action(legal
   event), (b) personality traits and
   defensive styles(person), and (c)
   stressors associated with protracted
   legal proceedings (situational
   demands). Separating proximate from
   non proximate factors and the
   dynamics of primary and secondary
   gain become increasingly
   complicated with the passage of time.
   Misattributions, based on post hoc
   ergo prompter hoc reasoning are
   common. (10)


It is no surprise, then, that rotten egg plaintiff will believe the tort incident is responsible for her suffering. However, though pain and suffering may fall within the emotional zone of risk if it results from the tort (in other words, the pain and suffering may not have occurred but for the accident), empirically it is the legal process and not the accident itself that uncaps the rotten egg. In other words, while the occurrence of the accident may have been a substantial factor in the emergence of the rotten egg, the accident itself seems nonetheless not to be the proximate cause of the harm.

Underlying psychosomatic causes for injuries have long been recognized by courts. (11) As such, to the extent a medical expert is qualified to give testimony regarding the psychogenic cause of a plaintiff's puzzling injuries, his or her testimony can be used to dispute plaintiff's expert's opinion as to proximate cause.

Who is Qualified to Give Expert Testimony on the Subject, and How Can Defense Counsel Set up the Rotten Egg Testimony?

The second argument is that the non psychiatric clinician is not a psychiatric expert and therefore can not opine on a psychological issue. Specifically, the question is whether a non-psychiatric physician can be an "expert" in matters of mental health, an area typically belonging to the purview of psychiatry and other mental health practitioners. This paper does not attempt to address particular nuances in the rules of evidence of different states; rather, the goal of this discussion is to provide a general framework with which to analyze the legal issues, and to provide suggestions --from an expert witness's perspective--on how best to prepare and present admissible and compelling rotten egg testimony.

As a preliminary matter, speaking generally an "expert" is an individual who knows more about a subject than a member of the lay public. Using the Federal Rules of Evidence Rule 702 as a model, a witness is qualified to testify as an expert by virtue of his or her "knowledge, skill, experience, training, or education." In this general regard, any physician who has graduated from medical school and carries a license to practice qualifies as an expert, as he has taken courses in psychiatry and has taken clinical rotations in psychiatry. Also, he has passed a rigorous written examination (the state or national board examination), a condition of licensure that includes the field of psychiatry. But, while the issue of the relative expertise of a physician in the matters of mental health is important to the conceptual understanding of the rotten egg, it is of little import to the health profession; therefore, it has not been scientifically discussed in the medical literature. As such, will a physician's testimony on a psychological issue be admissible within the court's mandated "gatekeeping" function? It is the physician author's contention, empirically verified in his capacity as frequent expert witness, that it will.

In Daubert v. Merrell Dow Pharmaceuticals (12) and Kumho Tire Co. v. Carmichael, (13) the Supreme Court of the United States found that, under Federal Rule of Evidence 702, federal trial judges act as "gatekeepers" to "ensure that any and all scientific testimony ... is not only relevant, but reliable." (14) A court must confront the "nature of the issue, the expert's particular expertise, and the subject of his testimony" in assessing the reliability of an expert's opinion. (15) This inquiry is necessarily fact-specific, and "the trial judge must have considerable leeway in determining whether particular expert testimony is reliable." (16) It is admittedly possible that a federal court judge may see fit to exclude a medical expert based on insignificant expertise in a field unrelated to his or her specialty. (17) However, the practical experience of the physician author indicates that such a non-psychiatric physician testifying on matters of mental health should survive a motion to exclude his testimony in that field; whether or not he is more or less qualified than a mental health expert is simply not in the scope of the admissibility question; rather, his "relative" medical expertise is relevant for the jury in the weight they will accord his testimony but not his qualifications as a gatekeeping matter. Ultimately what is important is that the court, in exercising its gatekeeper function, "make certain that an expert ... employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." (18)

In this regard, inquiry into the reliability of a clinician's testimony into a mental health matter would show that a number of physical/organic practitioners are extremely skilled in recognizing psychopathology. They must develop this skill to treat patients with somatic complaints and underlying psychopathology contributing to or in fact being the sole cause of the somatic complaints. If one divides the medical profession into those primarily focused on physical/organic matters and those primarily focused on mental health matters, there is no financial, professional, or academic competition between the two specialties. The majority of referrals to psychiatry are made by the medical profession. We have yet to hear a psychiatrist opine that a physician colleague is not qualified to make psychiatric referral; in fact, most mental health practitioners would opine that among physical/organic health practitioners, too many miss important psychopathology. Hence the physical/organic physician does have expertise in mental health matters--at least to the extent those mental health matters impact patients with complaints within their area of expertise.

Moreover, health practitioners have developed, out of necessity, a keen clinical sense for identifying patients with psychopathology. The patient who responds poorly to medical therapies consumes a tremendous amount of time for the health practitioner, and is always a significant medical malpractice risk. Consequently, organic/physical clinicians ordinarily try to direct these individuals to the mental health profession, and they are very careful to avoid misdiagnosis and/or invasive procedures that might result in difficulties, either for the patient or the physician. If a plaintiff with a somatoform disorder or other psychopathology might be a difficult client for a legal practitioner, so also is such an individual often described as a "difficult" patient; in fact, there are medical courses directed at recognizing and dealing with the difficult patient.

A recent case of the physician author is illustrative. The example individual was a middle-aged woman who, for the past five years, had complained of a foul odor emanating from her nose. A sinus CT scan showed mild infection in the paranasal sinuses. Medical therapy slightly improved the condition, but did not eradicate the foul odor. When the patient went off the medical therapy, the odor returned in full force. Surgical therapy was undertaken, and a minor complication ensued. The patient resolved the complication, but the foul odor persisted. The patient then sought other practitioners' opinions. Another operation was performed, again without benefit. Neurology evaluation failed to find neurologic cause. The patient was seemingly a healthy, well-adjusted, and mentally-balanced woman, and psychiatric evaluation was never recommended. The patient ultimately came to the UCSD Nasal Dysfunction Clinic, where she was seen by the first author.

Residents from Family Medicine often participate in the Nasal Dysfunction Clinic as part of their education. On this particular day, a senior family medicine resident was present. This individual was pursuing training in both family medicine and psychiatry, so this individual was experienced and skilled in both arenas. Based on clinical experience, the physician author knew that patients complaining of a foul odor emanating from their nose for an extended period of time, absent some gross infection, invariably have significant psychopathology. In fact, there is no level of medical and/or surgical care to eradicate this condition. It is simply one of many peculiar somatic manifestations of psychopathology. After completion of the history, physical examination, nasal endoscopy, and review of sinus CT scans, the case was discussed with the family medicine/psychiatry resident and the other students in the clinic. They had no suspicion that this was a bogus physical complaint and a red flag for underlying psychopathology.

Following discussion in the conference room, the doctors revisited with the patient and asked about psychological matters. The patient asked why this was being explored, and it was explained that pre-existing mental matters might be contributing to her complaint. The patient became incensed and left.

With a non-cooperative patient, it is often difficult for the physical/organic health practitioner to diagnose specifically or exactly the condition. In the non-cooperative patient, it may even be difficult for the psychiatrist to diagnose the condition, particularly in matters such as this, where they have little to no experience to know to what degree the complaint is organic and to what degree it is psychological. On the other hand, clinicians who treat specialized areas of medicine, such as TMJ, headache, neck ache, back ache, etc., see thousands of these patients and get to know them, both mentally and physically. Thus, the authors offer the opinion that not only do non-psychiatric physicians have expert opinion regarding psychiatric matters germane to their area of board-certified expertise, but that in fact they may have even greater expertise than has a mental health professional, who although imminently qualified in the matters of mental health, may have little exposure to the field of organic disease. The bottom line is that physical/organic clinicians are experts in diagnosing the presence or absence of organic conditions; simultaneously they are experts in recognizing that non-organic factors play a role and to what degree they influence the complaints.

Ultimately, regardless of whether a physical or psychological practitioner is more qualified than the other to give testimony relating to the rotten egg syndrome, the question of most pragmatic importance is how a defense attorney can set up the defense in court while avoiding the pitfalls of Daubert and a potential motion to exclude? Diagnosis of a somatoform disorder is a diagnosis of exclusion: it follows that organic pathology must first be ruled out. (19) But, at the same time, if one encounters restrictions on what types of experts may ultimately opine that psychopathology underlies the complaint, then it is best to be prepared for setting up the psychological explanation within the currently recognized tort framework. What the authors suggest, from a case management perspective, is that a defense attorney who suspects a rotten egg plaintiff should work to establish a two-step explanation, from both the physical and psychological perspective, of the potential psychogenic cause for the plaintiff's puzzling injuries.

The first thing that a defense attorney should do in a potential rotten egg case is to designate, early in the litigation process, a mental health practitioner as one of his or her experts. It is the physician author's experience that often, the non-organic (i.e., psychogenic) explanation for the plaintiff's injuries does not become apparent until after the medical physician testifying for the defense has performed the IME and submitted his or her report. At this time, it is often too late for a defense attorney to designate an additional expert, and the cleanest opportunity to introduce this critical testimony has been lost.

Next, just as the defense attorney must rely on a physical/organic physician to eliminate the possibility of an organic cause, he or she should also set up the second expert, the psychologic/psychiatric expert, to step in and essentially replace the "lack" of organic cause with the "presence" of a psychopathologic one. Thus, when identifying a physical/organic medical expert, defense counsel should ascertain that that individual is willing and able to comment that not only do plaintiff's problems have no organic origin, but also that some alternative, somatic, or other psychopathologic, explanation would be reasonable, viable, and/or probable by implication. This introduction thus sets the stage for a psychiatric expert then to opine that in fact, psychopathology is a probable and reasonable explanation. As alluded to above, the psychiatric expert may not necessarily be able to identify the details of the psychopathology, e.g, childhood molestation, chemically addicted or abusive parents, a narcissistic mother, etc., within the short period of time he or she interacts with the plaintiff. However, today's psychiatric experts are well-equipped with psychological batteries and other testing paradigms that can readily identify individuals prone to certain psychopathologies (most commonly for these matters: somatization, hysteria, anxiety, and depression). As such, the psychiatric expert testimony serves to bring the rotten egg explanation full circle; the second expert can explain to the finders of fact that, in fact, this particular plaintiff, whose injuries lack organic cause, does indeed have a proclivity or tendency toward psychopathology (most commonly somatization). The combination of the two testimonial perspectives can best help a juror to reason and conclude that the complaint is not organic in nature and is, therefore, psychogenic.

Conclusion

Psychopathology pervades all illness. Where the organic cause has been ruled out, defense counsel was traditionally left with very little control over what a jury may conclude caused the injury; the rotten egg presents for the first time a positive explanation for plaintiffs injuries where before there was only speculation as to a lack of organic cause. The ultimate goal of this paper is to arm defense counsel with the theoretical foundation for a viable, "positive" explanation for an injury that seems at first to be without cause, so that he or she need not engage in a battle of the experts with its accompanying uncertainties. It is the authors' hope that introduction of a tangible, psychogenic explanation may prove to be a powerful tool. For instance, in the physician author's own experience, the very suggestion of a possible psychogenic cause for the plaintiff's injuries by a defense witness can exert settlement pressures on plaintiff's counsel.

This is not to say, however, that the demarcation between rotten and fragile eggs is nonexistent. Particularly, the rotten egg phenomenon is not an alternate explanation for all torts, but only for those in which the plaintiff's symptoms exist in the absence of organic cause. And, of course, as the inquiry into whether the theory is tenable in a particular case is individualized and fact-specific, the question of whether it should apply in a particular case may fall within the realm of legal strategy. Applying the rotten egg explanation where it is not clearly operant has, obviously, a huge potential negative impact; it may be perceived by the finder of fact that the defense is grasping for straws.

As an additional strategic matter, while the rotten egg is excellent descriptive jargon for the legal profession, it is inappropriate terminology in the courtroom. Just as a difficult medical patient may not be willing to hear the very diagnosis that may help her to treat her injuries, the rotten egg plaintiff will not know there is underlying psychopathology and will take umbrage to being labeled a "rotten egg." The jury might also be incorrectly influenced by the term, albeit not the concept. "Non proximate, preexisting psychopathology" is the appropriate legal term.

The authors' intentions are merely to proffer a theory. Tort complaints are influenced by proximate and non-proximate psychopathology, and concededly, the slope becomes slippery where psychopathology unravels all concepts of causation and foreseeability in assessing tort damages. However, given the heavy burden that complaints such as these impose on our legal system, the question should at least be considered. In sum, when the complaint is caused or influenced by non proximate psychopathology, the egg may be rotten, not fragile.

(1) DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Ed, Text Revision Washington DC, AMERICAN PSYCHIATRIC ASSOCIATION (2000).

(2) Id.

(3) Lynne Lamberg, New Mind/Body Tactics Target Medically Unexplained Physical Symptoms and Fears, J. OF THE MEDICAL ASSOC. Nov; 294: 2152-2154 (2005).

(4) MORBIDITY AND MORTALITY WEEKLY REPORT, (The Centers for Disease Control and Prevention) The Role of Public Health in Mental Health Promotion (Sept 2, 2005).

(5) A. Barsky, J. Orav, D. Bates, Somatization Increases Medical Utilization and Costs Independent of Psychiatric and Medical Comorbidity, ARCHIVES OF GENERAL PSYCHIATRY Aug; 62:903-910 (2005).

(6) Id.

(7) Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 54 (1st Cir. 1997).

(8) See, e.g., T.K. Craig, A.P. Boardman, K. Mills, O. Daly-Jones, H. Drake, The South London Somatization Study I: Longitudinal Course and the Influence of Early Life Experiences, BR. J. PSYCHIATRY (1993 Nov) 163: 579-588; see also S. Benjamin, K. Bridges, The Special Needs of Chronic Somatizers, S. Benjamin, A. House, P. Jenkins, eds. LIAISON PSYCHIATRY: DEFINING NEEDS AND PLANNING SERVICES, London, England: Gaskell Press, Royal College of Psychiatrists 16-23 (1994).

(9) See, e.g., J.I. Escobar, A. Burnham, M. Karno, A. Forsythe, J.M. Golding, Somatization in the Community, ARCH GEN PSYCHIATRY, 44:713-718 (1987); see also P. Fink, Surgery and Medical Treatment in Persistent Somatizing Patients, JOURNAL OF PSYCHOSOMATIC RESEARCH, Great Britain, 36:439-447 (Pergamon Press, Ltd. 1992).

(10) H.N. Weissman, Forensic Psychological Assessment and the Effects of Protracted Litigation on Impairment in Personal Injury Litigation, FORENSIC REPORTS 4:417-429 (1991).

(11) See, e.g., Martin v. Volvo Cars of North America, Inc., 241 A.D.2d 941 (N.Y. App. Div. 4th Dep't. 1997) (defendant permitted to present medical evidence that plaintiff suffered from a conversion disorder, had a predisposed mental fragility caused by her stressful life before the accident, and that her physical disability would have occurred without the accident); Carr v. Broadway Associates, 238 A.D.2d 184 (N.Y. App. Div. 1st Dep't. 1997) (defendant's demand for release of psychological records of plaintiffs complaining of personal injury from exposure to toxic substances in the workplace upheld where their claimed injuries had a "marked psychological or functional overlay."); Murphy v. Estate of Vece, 173 A.D.2d 445 (N.Y. App. Div. 2d Dep't. 1991) (evidence supported the conclusion that the plaintiffs back and psychiatric injuries were not caused by a relatively minor auto collision, but was rather caused by a pre-existing psychiatric disorder); Starobin v. Hudson Transit Lines Inc., 112 A.D.2d 987 (N.Y. App. Div. 2d Dep't. 1985) (where "plaintiff had a history of psychosomatic problems, and all of the experts who testified at trial agreed that she suffered from a profound personality disorder and that her physical symptoms were emotionally based," jury could believe that her claims of pain from a minor accident were psychogenic).

(12) 509 U.S. 579 (1993).

(13) 526 U.S. 137 (1999).

(14) Daubert, 509 U.S. at 591.

(15) Kumho Tire, 526 U.S. at 150.

(16) Daubert, 509 U.S. at 592.

(17) See, e.g., Smith v. Wyeth-Ayerst Lab. Co., 278 F. Supp. 2d 684, 697-98 (W.D.N.C. 2003) (Judge Voorhees, acknowledging that only one of the treating physicians was a pulmonologist, held that the remaining treating physicians were not qualified to provide opinion testimony on the causes of Primary Pulmonary Hypertension (PPH): "As Defendant points out, any expert, including physicians, must have the specialized knowledge or skill in the specific area in which testimony is proffered.").

(18) Kumho Tire, 526 U.S. at 152.

(19) See, e.g., P. Fink, L. Sorensen, M. Engberg, M. Holm, P. Munk-Jorgensen, Somatization in Primary Care: Prevalence, Health Care Utilization and General Practice Recognition, PSYCHOSOMATICS 40:330-8 (1999).

Dr. Terence Davidson is currently a Professor of Surgery in the Division of Otolaryngology-Head and Neck Surgery and Associate Dean for Continuing Medical Education at the University of California, San Diego School of Medicine and Section Chief of Head and Neck Surgery at the VA San Diego Healthcare System. Dr. Davidson has published over 150 scientific articles and has been involved in personal injury litigation for twenty-five years.

Jennifer Tung is currently an associate at Hunton & Williams LLP in Dallas, Texas.

She received her B.A. from Stanford University, and she earned a J.D. from Harvard Law School.
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Author:Davidson, Terence M.; Tung, Jennifer J.
Publication:Defense Counsel Journal
Date:Jan 1, 2008
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