Anticipating and meeting defenses in accident cases

A competent and experienced plaintiff’s lawyer will be able to anticipate and overcome the typical defenses that will be asserted against claims of mental and emotional injuries in accident cases.

Typical defenses

In most mental and emotional injury accident cases, the defense will retain a psychological expert to evaluate plaintiff. The expert will come up with one or more of four defenses to attempt to demonstrate that plaintiff was not mentally injured or at least not significantly mentally injured as a result of the subject accident. Those defenses are:

Plaintiff is malingering.
Plaintiff’s only mental and emotional symptoms stem from a personality disorder which by definition pre-existed the subject accident.
The subject accident was not a significant enough stressor to cause anybody a mental disorder.
Whatever problems plaintiff has are caused by stressors other than the subject accident.

Every one of these defenses can be overcome as long as plaintiff’s case is credible and genuine and plaintiff’s attorney can establish the weaknesses in the defense expert’s testimony.

The malingering defense

First of all, as long as plaintiff maintains his or her credibility throughout the litigation, a jury is unlikely to believe that plaintiff is malingering or faking an injury.

Secondly, psychological testing can be a valuable tool in overcoming this defense. Many of the psychological tests have “truth-false” scales that can rule out malingering or at least establish that plaintiff is not faking the results of the particular test. On these tests, plaintiff’s responses are judged against thousands and sometimes millions of other test takers. If plaintiff’s responses fit into certain well known patterns, there will be objective evidence of the claimed psychological injury.

Finally, testimony from credible “before and after” witnesses can be valuable in overcoming a malingering defense. Although jurors may believe that a plaintiff would fake symptomatology when he or she showed up for a psychological evaluation, they are much less likely to think that plaintiff would day in and day out fake a psychological injury at work, at home, in front of a medical doctor and other potential witnesses who have an opportunity to see plaintiff on a frequent basis.

The personality disorder defense

Defense experts often will testify that plaintiff is suffering from a personality disorder. Personality disorders involve long-term, chronic personality dysfunction, so by definition a personality disorder must have predated the subject accident. It is conceded in the literature that a traumatic accident cannot “cause” a personality disorder.

The plaintiff’s attorney can handle the personality disorder defense by recognizing the following factors:

A person who has an existing personality disorder can develop an Axis-I mental disorder that was caused by an accident, such as a post-traumatic stress disorder. The two are not mutually exclusive.
A personality disorder can be greatly aggravated by a traumatic accident. In fact, personality disorders may make plaintiff more vulnerable to having a particularly severe reaction to a traumatic accident. The defense expert, if he or she is honest at all, will have to concede the fact that an accident can aggravate a personality disorder. Personality disorders are sometimes rated from mild to severe. In many cases in which the defendant’s lawyer raises the personality disorder defense, the plaintiff’s attorney may be able to establish that if plaintiff had any personality disorder at all before the accident, it was mild, and that after the accident it became moderate or severe.

Before the diagnosis of personality disorder can be made, there must be significant evidence that plaintiff was either dysfunctional or suffered disabling internal stress as a result of his or her personality traits or “problems.” People with personality disorders normally do not do well in school, work or social situations. If plaintiff has succeeded in these areas of life then the diagnosis of personality disorder is most likely inaccurate and inappropriate. Perhaps the defense psychologist is basing his or her diagnosis on psychological testing without any “backup” from other evidence. If so, plaintiff’s attorney can then question the defense expert in such a way as to show that the records lack any pattern of dysfunction in plaintiff’s pre-accident life.

The insignificant trauma defense

The “insignificant trauma” defense is typically utilized in an accident case in which there is not a major objective psychological trauma. This defense is based almost entirely on the definition of the word “trauma” within the description of “post-traumatic stress disorder” contained in The Diagnostic and Statistical Manual of Mental Disorders (the “DSM”). The DSM is published by the American Psychiatric Association and it contains a widely accepted set of categories, standards and criteria for classifying mental health disorders.

The DSM’s diagnostic criteria for a post-traumatic stress disorder have changed slightly over time. But since it was first recognized in the early 1980’s, the criteria has always required something to the effect of a person having experienced an event that is outside the range of usual human experience and that would be markedly distressing to almost everyone. The DSM then gives examples of a series of very catastrophic events which can cause a post-traumatic stress disorder.

If plaintiff’s case does not involve a trauma of this objective magnitude, the following techniques can be used to meet and overcome the defense:

Plaintiff’s attorney can point out that the DSM is not a text book, but merely a “cook book” of mental disorders. The diagnosis of post-traumatic stress disorder is not even recognized in this “cook book” until the early 1980’s. Does that mean that people only started having this disorder after 1980? Of course not. This points out the fact that post-traumatic stress disorder is a mere label for a constellation of symptoms. If plaintiff is suffering from all the symptoms of a post-traumatic stress disorder, what difference does it make to plaintiff if those symptoms were caused by a “minor” stressor as opposed to a catastrophic stressor as required by the Diagnostic and Statistical Manual of Mental Disorders?
Through the testimony of plaintiff’s psychological expert, plaintiff’s lawyer should introduce new authoritative psychiatric text books and articles that indicate that relatively minor traumas can and do produce significant mental disorders (if not post-traumatic stress disorders). The technical aspects of the definition of post-traumatic stress disorder aside, it is the “subjective content” of the trauma that counts, not the objective content.
An honest defense psychological expert will probably concede that some people can be subjected to a catastrophic trauma and come away relatively psychologically unscathed, while other people can be subjected to a relatively minor trauma and have a very significant reaction to it.
Plaintiff’s lawyer can point out, through the testimony of plaintiff’s psychological expert and through the concessions of the defense expert, that everybody reacts to trauma individually and differently. Some people are particularly vulnerable or susceptible to certain types of accidents and traumas. To understand how somebody is going to react to a trauma, it is far more useful to understand a person’s particular vulnerability to the trauma then it is to understand the catastrophic nature of the trauma.

In most cases in which a person develops a mental disorder as a result of an accident, there is a moment in time in which the plaintiff legitimately fears for his or her life. Generally, for at least one moment, plaintiff will lose control and not know whether or not he or she will die. This can occur in even a moderate rear-end car accident. Plaintiff’s psychological expert can point out to the jury that even this moment of loss of control and fear for one’s life represents an event that is “outside the range of usual human experience” and to that extent, the accident represents “a serious threat to one’s life or physical integrity.”

In some cases, plaintiff’s mental health injury attorney will avoid entirely the whole battle over the DSM’s criteria for post-traumatic stress disorder. The issue can be avoided because post-traumatic stress disorder is not the exclusive diagnosis that might apply to the problems that a person is having as a result of trauma. The person can suffer from a wide range of mental disorders as a result of a trauma including adjustment disorders, anxiety disorders other than a post-traumatic stress disorder, depressive disorders and even psychotic disorders. A diagnosis of post-traumatic stress disorder may give certain cases more credibility. But in most cases involving a relatively minor trauma, an assertion that plaintiff is suffering from PTSD is not necessary to recover damages for legitimate mental and emotional injuries.

The other stressor defense

If the defense concedes that plaintiff has suffered from a mental disorder after an accident, the defense lawyer and expert will probably claim that the disorder was caused by some stressor other than the subject accident.

When the defense psychological expert interviews plaintiff and reviews plaintiff’s records, he or she will be looking for alternative explanations for plaintiff’s mental and emotional injuries. The defense psychological expert will usually turn up a life stressor that he or she will claim is significant, that occurred around the time of the subject accident which caused plaintiff’s mental and emotional injuries. Typically, the defense expert will point to a stressor such as a death of a close friend or relative, significant problems at work, breakup of a relationship, divorce, problems with the law, etc., to explain the cause for plaintiff’s mental and emotional injury. The plaintiff’s mental injury attorney can beat this defense in the following ways:

Establishing – through the records and the testimony of the plaintiff, the before and after witnesses, and the plaintiff’s psychological expert – the close temporal (time) relationship between the subject accident and the onset of symptoms and the lack of a temporal relationship between whatever the defense is pointing to as a stressor and the onset of plaintiff’s symptoms.
There is usually a difference in the “quality” of symptoms produced by an event like a divorce or death and the type of psychological injury that follows an accident. Death and divorce produce “grief-type” reactions but they usually do not produce full blown anxiety disorders that contain symptoms such as nightmares, inability to drive and obsessive memories of a car accident.
Plaintiff’s attorney can point out that plaintiff, like most people, withstood multiple stressors, such as the one that defense is pinpointing, throughout his or her life without any problems. Therefore, a stressor such as a divorce, death or loss of a job, is not capable of causing this particular plaintiff to break down. It took an unusual and unexpected stressor like the subject accident to destroy plaintiff’s otherwise functional defense mechanisms.