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Courts Hear Mental-Health Experts in More Civil Cases

August 23, 1995

When an Iowa court was trying to decide whether a man’s suicide entitled his widow to workers’ compensation, it looked beyond lawyers: The court called in three psychiatrists to conduct a ``psychological autopsy.″

The three were among a growing number of mental-health experts who have become witnesses in civil cases in recent years. Although such experts have long been commonplace in criminal trials, they are increasingly finding their way into lawsuits involving such issues as whether the alleged infringement of a company’s trademark is likely to confuse the public, whether pre-employment tests discriminate against minorities and whether particular work environments are hostile to women.

But as the number and variety of these suits have risen, the debate over the reliability of psychiatric evidence in both civil and criminal cases has heightened. Some judges, frustrated by the shades of gray in psychology, are tossing mental-health experts out of the courtroom. Even some psychologists and psychiatrists concede that their field is an inexact science because mental states often don’t have observable physical symptoms.

``When you’re talking about whether somebody is drunk, you can take a look and say they’ve got a 1/8particular 3/8 blood-alcohol level,″ says Donald Bersoff, director of the Law and Psychology Program at Villanova Law School. ``That’s verifiable.″ By contrast, he adds, ``Psychological tests aren’t blood tests. There are good tests, but . . . they’re subject to error.″

Perhaps the most unusual innovation in mental-health testimony is the psychological autopsy such as that used in the Iowa workers’ compensation case, which centered on the suicide of Dean Willams. After Mr. Williams’s death, his wife, Suzanne, sought workers’ compensation benefits, claiming that the suicide was prompted by the financial troubles of the clothing store her husband managed. Two weeks after he had an ``emotionally charged″ meeting with the store’s owner, Mrs. Williams found him behind the wheel of his car, dead from carbon-monoxide poisoning, according to the Iowa Supreme Court’s 1993 opinion in the case.

Testifying for Mrs. Williams, two psychiatrists linked her husband’s depression to his ``unshakable feeling of personal responsibility″ for the store’s problems. But the psychiatrist who testified for the store said that without more information, he couldn’t attribute the depression or the suicide to Mr. Williams’s work.

The state Supreme Court ended up affirming an earlier deciand denied any benefits to Mrs. Williams. In making its decision, the court took into account the psychiatric testimony, although it noted that ``all three psychiatrists were . . . hampered in their diagnosis by the fact that they had not consulted with Dean before his death.″

Indeed, mental-health specialists say psychological autopsies pose special credibility problems because the person being examined isn’t available for questioning. Observes David Faust, a psychologist at the University of Rhode Island: ``You can’t go back and wake up the dead and say, `What were you thinking? Is the doctor right?‴

Even testimony about live patients poses problems. For one thing, critics say, lawyers often ask psychologists or psychiatrists for opinions on issues they aren’t trained to handle. ``You can say, `When I observed the kid, 1/8she 3/8 seemed to be close and affectionate with the father,‴ says Villanova’s Prof. Bersoff. ``But the judgment about who is the more fit parent . . . isn’t a psychological concept.″

A few years ago, for example, the Georgia Supreme Court threw out the testimony of a neuropsychologist who made conclusions that it considered beyond his abilities. The case arose when William and Susan Morris sued an exterminator they had called in to fumigate their house. Based on clinical interviews and evaluations of family members, the expert said the Morrises and their two children had developed brain damage because they had inhaled or had skin contact with the pesticide that was sprayed.

The court discarded the neuropsychologist’s testimony as ``too speculative and incompetent, citing state laws that suggest psychologists aren’t qualified ``to render an opinion concerning a diagnosis of a mental disorder″ when the disorder relates to a physical injury that needs a separate diagnosis. ``Medical causation is not a subject within the scope of psychological expertise,″ the court said.

In other cases, the issue is whether a psychologist has enough training in a particular specialty. In a child-custody case in May, for instance, a New York family court prevented Mary Beth Andrews, a clinical psychologist, from testifying that the children in the case had ``sexual abuse syndrome.″

The judge noted that Dr. Andrews’s training in child sexual abuse consisted largely of two daylong seminars and weekly sessions on sexual abuse with a supervisor ``whose training and experience she could not adequately describe.″ He ruled that ``her qualifications as a sexual abuse validator fall far short of what is required″ and ``her validation evidence is wholly incompetent.″

Some legal specialists say judges shouldn’t be so finicky. Weak testimony will crumble during cross-examination, they contend, and juries are capable of sifting the gems from the junk. A 1993 U.S. Supreme Court decision seemed to support this approach, giving judges wide leeway to allow controversial expert testimony that might help a jury.

Some judges, however, have used this broadened authority to exclude experts they consider unreliable. That makes sense to some mental-health specialists, who warn that lawyers can play psychological games with jurors. ``The ultimate psychology is being practiced by the lawyers who call these witnesses,″ says Jan Goldstein, an Atlanta psychotherapist. ``Once a jury hears somebody with credentials, the psychological impact of what the expert says may not be easily undone.″