New Jersey Courts do not allow expert testimony about symptom magnification, malingering or other equivalent concepts. In Rodriguez v. Walmart Store, the Appellate Division stated, “we adopt the reasoning of other jurisdictions that have disallowed such expert opinions about symptom magnification, malingering, or other equivalent concepts in civil jury cases…” 449 N.J. Super. 577, 596 (App. Div. 2017). The Court reasoned that this testimony may be used as a “thinly veiled comment on a witness’[s] credibility.” See Rodriguez, 449 N.J. Super. at 585.
Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution or obtaining drugs.
Rodriguez, 449 N.J. Super. at 591, citing Diagnostic and Statistical Manual of Mental Disorders 683 (4thed. 1994).
According to the Rodriguez court “[t]o brand a person a ‘malingerer’ is essentially to declare him or her a faker, a liar, a slacker or a sloth” which is the exact type of testimony to be prohibited. Id.
Even if testimony by the expert on malingering or other similar concepts has some probative value in evaluating the veracity of the injuries “[w]eighing evidence and determining credibility are tasks exclusive to the jury, and an expert should not offer an opinion about the truthfulness of witness testimony”. Id. at 593-595. The courts concern is that as an expert’s testimony would put an undue influence on a jury’s exclusive role of evaluating plaintiff’s credibility. Id. Further, even if an expert is presented for the sole purpose of damages, the Rodriguez courts recognized that the expert testimony was likely to also affect the jury’s assessment of liability. Id. The effect is potentially so prejudicial that the Rodriguez Court believed that a limiting instruction cannot “sufficiently ameliorate the undue harm of admitting the expert opinion in the first place. As we have recognized, sometimes jury instructions about the misuse of evidence are simply inadequate to effectively blunt the risks of significant prejudice.” Id. at 598.