Neuropsychologist's Expert Testimony Regarding Plaintiff’s Malingering Properly Admitted

The gripper arm of the defendants’ garbage truck struck the plaintiff. The plaintiff sued the defendants for negligently operating the truck. He claimed that the blow by the gripper arm caused injury to his head, neck, shoulder, and back. After a trial, the jury was charged on comparative negligence and returned a verdict finding plaintiff seventy percent liable and defendants thirty percent liable, which barred any monetary recovery for the plaintiff.


The plaintiff appealed arguing that the trial court erred in denying his Daubert motion to limit the testimony of his own expert neuropsychologist. Specifically, he tried to suppress the part of his neuropsychologist's expected testimony that would suggest the plaintiff did not put forth his maximum effort during his diagnostic testing, indicating that the plaintiff was malingering in order to affect the outcome of the tests. The plaintiff argued that it should be excluded because the expected testimony of plaintiff's malingering was not grounded in science.


The Supreme Court of Vermont held that the trial judge did not abuse his discretion when he denied the plaintiff’s Daubert motion. Even assuming a doctor’s testimony regarding a patient’s malingering is not scientific, it may fall within the range of expert testimony allowed by Vermont Rule of Evidence 702, which provides in relevant part: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto....”


Additionally, the trial judge appropriately considered the uncontested evidence presented by the plaintiff before the judge at the time the Daubert motion was filed. Specifically, the judge considered the sworn deposition of the neurologist with whom the plaintiff first consulted after the incident who referred the plaintiff to a neuropsychologist for further evaluation. In this deposition the neurologist vouched for the medical qualifications of the neuropsychologist whose testimony the plaintiff sought to exclude. The deposition specifically addressed the neuropsychologist’s ability to interpret and apply validity markers. Validity markers are indications that a patient is not putting forth maximum effort during a psychological evaluation and are well-accepted, proven means to identify potential lack of effort while conducting tests to diagnose mild brain injuries.


See: Pcolar v. Casella Waste Systems, Inc., 2012 WL 3055027 (Vt., July 27, 2012) (not designated for publication).