Deposing & examining the mental health expert

• Author: Tod F. Schleier
• Pages: 709-798

D&E: MENTAL

HEALTH EXPERT

5-1

CHAPTER 5

DEPOSING & EXAMINING

THE MENTAL HEALTH EXPERT

I. GOVERNING PRINCIPLES

A. Compensatory Damages Available Under Statute

§5:01 Civil Rights Act of 1991

§5:02 Damages Caps

§5:03 Evidence of Damages vs. Proof of Liability

B. Proving Emotional Distress Damages

§5:04 Proof of Actual Injury

§5:05 Physical Manifestation of Emotional Harm

C. Proving Compensatory Damages

§5:06 Is Expert Testimony Necessary?

§5:07 Plaintiff’s Testimony as Sole Proof of Distress

§5:08 In Practice: Should Your Plaintiff Testify?

§5:09 Better Option: Friends, Family Testify

D. Treating, Consulting Psychologists as Experts

§5:10 Select Your Expert Early in Case

§5:11 Advantages

§5:12 Disadvantages and Risks

E. Rule 35 Examination

§5:13 “In Controversy” Requirement

§5:14 Components of Independent Medical Exam

[§§5:15 – 5:19 Reserved]

II. UNDERSTANDING PSYCHOLOGICAL TESTS

A. The DSM-IV

§5:20 What Is It?

§5:21 How Does It Work?

§5:22 Limitations of DSM in Litigation

§5:23 Discovery of Raw Test Data

[§5:24 Reserved]

B. Minnesota Multiphasic Personality Inventory (MMPI)

§5:25 Early Development

§5:26 Format, Administration, Analysis of Test

§5:27 Criticisms; Grounds for Cross-Examination

§5:28 The MMPI-2-Restructured Form (MMPI-2-RF)

D&E: MENTAL

HEALTH EXPERT

Deposing & Examining Employment Witnesses 5-2

C. Millon Clinical Multiaxial Inventory (MCMI)

§5:29 Background

§5:30 Use & Purpose in Litigation

D. Personality Assessment Inventory (PAI)

§5:31 What Is It?

III. DEPOSITION OF MENTAL HEALTH EXPERT

A. Preliminary Matters

§5:32 Goals of Deposition

§5:33 Preparing for Deposition

§5:34 Obtain Raw Testing Data

B. Deposition Checklist—Mental Health Expert

§5:35 Background

§5:36 Experience as Expert Witness

§5:37 Retention of Expert and Bias

§5:38 Expert’s Work on Case

§5:39 Diagnosis and Opinion

§5:40 Personality Disorders

§5:41 Pre-Existing Conditions

§5:42 Malingering

§5:43 Post-Traumatic Stress Disorder

§5:44 Patient-Therapist Relationship

§5:45 Therapeutic Bias

§5:46 Complete Report

C. Deposition Checklist—Expert Testif‌ied on Behalf of Employer in Prior Related Matter

§5:47 Preliminary Matters

§5:48 Psychological Examination in Workers’ Compensation Case

§5:49 First Defense Medical Examination in Workers’ Compensation Case

§5:50 Psychological Testing

§5:51 Second Psychological Evaluation in Discrimination/Retaliation Case

§5:52 Second Examination

§5:53 Second Psychological Testing

§5:54 Bias

IV. MENTAL HEALTH EXPERTS AT TRIAL

A. Direct Trial Examination of Treating Psychologist

§5:55 Key Facts

§5:56 Strategy

§5:57 Checklist

§5:58 Model Direct Examination

§5:58.1 Establish Treating Doctor’s Credentials

§5:58.2 Plaintiff Was Referred by a Doctor, for Medical Reasons

§5:58.3 Doctor Has Spent Signif‌icant Time Treating Plaintiff

§5:58.4 Doctor Took Detailed History From Plaintiff

§5:58.5 Diagnosis Is Based Upon DSM-IV Criteria

§5:5 8.6 Expert Can Identif y Facts Supporting Each DSM-IV Criterion for PTSD in Plaintiff

§5:58.7 Expert ’s Opinion: Plaintiff Suffers From PTSD Caused by Sexual Assault

§5:58.8 Expert ’s Opinion: Plaintiff Suffers From Rape Trauma Syndrome (“RTS”)

§5:58.9 Expert ’s Opinion: RTS Resulted in Delayed Reporting of Assault and

Filing of Suit

§5:58.10 Defendant’s Conduct Caused Permanent Injury

§5:58.11 Establish Floor for Damages

[§5:59 Reserved]

D&E: MENTAL

HEALTH EXPERT

5-3 Deposing & Examining the Mental Health Expert

B. Cross-Examination of Defense Psychologist

§5:60 Key Facts

§5:61 Strategy

§5:62 Angles of Attack

§5:63 Pattern Cross-Examination

§5:63.1 Expert ’s Credentials Pale in Comparison to Plaintiff’s Expert’s

§5:63.2 Expert Is a “Hired Gun” Who Spent a Few Hours With Plaintiff,

Solely for Purpose of Litigation

§5:63.3 Expert ’s Diagnosis Is Not Incompatible With Plaintiff’s Expert’s

Diagnosis

§5:63.4 Plaintiff ’s Expert’s Diagnosis Is Reliable

§5:63.5 Plaintiff Was Open, Honest and Cooperative During Meeting

With Defense Expert

§5:63.6 Plaintiff ’s Workplace Environment Was Sexually Hostile

§5:63.7 Challenge Expert ’s Testing Methods (MMPI) and Resulting Diagnosis

§5:63.8 Challenge Expert ’s Diagnosis With His Own Test Results (Millon Test)

§5:63.9 Scholarly Articles on Which Expert Relied Support Plaintif f’s Theory of Case

§5:63.10 Expert Believes Plaintiff’s Version of the Facts;

Concedes Plaintiff Not Malingering

[§5:64 Reserved]

V. SUMMARY CHECKLIST: CROSSEXAMINATION MENTAL HEALTH EXPERT

§5:65 Summary Checklist

FORMS

5-A Opposition to Defendant’s Rule 35 Motion and Psychological Testing

5-B Motion for Protective Order

5-C Defendant’s Memorandum of Law in Opposition to Motion in Limine to Exclude MMPI-2 Results and Testimony

5-D Defendant’s Motion to Compel Plaintiffs’ Attendance at a Physical Examination by Defendant’s Medical Expert

Without the Presence of her Attorney, and Without the Examination Being Audiotaped or Recorded in Any Way

5-E Proposed Protective Order

5-F Joint Stipulation for Entry of Protective Order

5-G Motion In Limine to Preclude Testimony Relative to the MMPI Fake Bad Scale

5-H Defendant’s Motion to Compel Disclosure of (Non-Economic/Emotional Distress) Damages and Brief in Support

5-I Motion in Limine to Preclude Testimony from Dr. Jones Relative to Malingering

5-J Motion to Compel Production of Raw Test Data