Butler Williams & Skilling Blog

Excuding Dr. Gordon: Part 4

As discussed in Part 1 of this series, the final chapter in Dr. Gordon's playbook is to insinuate that complaints of pain beyond the magic six weeks have a functional component.  This means that either the plaintiff is malingering (i.e.,lying or faking for secondary gain) or she has a psychological defect (e.g., history of depression or a personality prone to hypochondria, etc.) which makes her think she is hurt when she is not.  This line of testimony is usually accompanied by ad hominem attacks on plaintiff's treating physicians for either overtreating for monetary gain or being incompetent.  This "functional component" opinion is rarely disclosed (and therefore is inadmissible under Rule 4:1) because Dr. Gordon is well- rehearsed at either slipping it in as a response to a general, unobjectionable question by defense counsel or unleashing it on the cross-examiner who dares to challenge his opinions.

He is fond of bolstering this opinion with references to studies he's never been able to cite, such as the study that allegedly found that people who injure their low backs gardening see a doctor on average 2-3 times, while people who injure their low backs in car crashes go to the doctor on average 17 times and complain of pain until their case settles.  Again, unless these imaginary studies were disclosed, the opinion should not come in.  See Rule 4:1 and John Crane, supra.

More importantly, these opinions are inadmissible as a matter of law because they invade the province of the jury.  An expert witness may not express an opinion as to the veracity or credibility of a witness "because such testimony improperly invades the province of the jury to determine the reliability of the witness."  Fitzgerald v. Commonwealth, 223 Va. 615, 630 (1982), and Pritchett v. Commonwealth, 263 Va. 182, 187 (2002).  Insinuating that a plaintiff is either a liar, faker, or crazy person is a blatant attempt to impugn the plaintiff's veracity.  Dr. Gordon's habit of attacking the actions of plaintiff's treating doctors is likewise objectionable.  In Brown v. Corbin, 244 Va. 528 (1992), an accident reconstructionist testified he could not determine vehicle speed or the actual path of the vehicle because the investigating Deputy Sheriff (a witness in the case) failed to obtain the necessary information about tire marks etc. when he investigated the accident.   The Court held that this testimony amounted to an attack on the Deputy's credibility and invaded the province of the jury.