Lawrence vs Lawrence 1997
Lawrence v. Lawrence
Dianne Lawrence, plaintiff, and
Allan Lawrence, deceased, defendant
Dianne Lawrence, plaintiff, and
Dan Cretu, defendant
Dianne Lawrence, plaintiff, and
Darren Dennis Pringle, Ford Credit Canada Limited – Credit
Ford du Canada Limitee, and Allan Lawrence, deceased,
 B.C.J. No. 1174
33 B.C.L.R. (3d) 198
71 A.C.W.S. (3d) 693
Vancouver Registry Nos. B943377, B950798 and B951756
British Columbia Supreme Court
Vancouver, British Columbia
Heard: May 12-14, 1997.
Judgment: filed May 20, 1997.
Evidence — Opinion evidence — Reports by experts — Admission of — Medical evidence.
This was an application to admit evidence in a civil proceeding. The respondent wife was injured in an automobile accident involving the applicant, her late husband. The wife was in litigation with the husband’s estate. The estate sought to admit into evidence a psychologist’s report. The report addressed the phenomenon of malingering and the wife’s alleged exaggeration of her disability for financial gain. The report stated that social reinforcement caused the wife’s pain when there was no organic problem. The wife argued that report commented on her credibility and was prejudicial.
HELD: The application was allowed, in part. Sections of the report which could be used by the jury to find that the wife was malingering were excluded from evidence. A finding of malingering was a matter of credibility. The contents of the report were prejudicial to the wife on this issue. The remainder of the report was admissible because it detailed possible causes of the wife’s suffering.
Yan Gertsoyg, for the plaintiff.
Ronald D. Nairne and Leona Baxter, for the defendants.
1 TYSOE J.:– A voir dire was held at the commencement of the jury trial in these three actions to determine, among other things, the admissibility of a report by a psychologist engaged by the Defendants. I gave brief oral reasons for my rulings during the course of the submissions. I ruled that the report was not inadmissible as a whole but that portions of the report were not admissible. If this had not been a jury trial, I probably would have admitted the report in its original form and disabused myself of the objectionable aspects of the report. As this is a jury trial, however, it is important that nothing improper be placed before the jury. At the conclusion of my rulings, counsel for the Plaintiff requested that I issue written reasons for future guidance in this area.
2 The psychologist in question is Dr. Bonnie Hayes. Her reports have been the subject matter of rulings in other actions. In Spencer v. Soanes1 and Hawkins v. Koens2 Dr. Hayes’ reports were ruled inadmissible because she expressed an opinion with respect to the credibility of the plaintiff. On the other hand, in Calvez v. Illug3, the Court admitted Dr. Hayes’ report because she did not question the plaintiff’s credibility.
3 Dr. Hayes gave viva voce evidence during the voir dire. She testified that it would be inappropriate for her to diagnose a patient as having a nomogenic disorder or to be a malinger. In an article by Dr. Hayes and others which was published in 1993, it is explained that the term nomogenic disorder was coined by two authors in 1984 to describe psychopathologic disorders in which the law and its application play an etiologic role and, in particular, to describe a situation where a person’s complaints of pain and disability are maintained by expectations of major financial gain through litigation. In the glossary to her report, Dr. Hayes described the essential feature of malingering to be 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.
4 Dr. Hayes did not always consider it to be inappropriate for her to offer an opinion that a person has a nomogenic disorder. This is what I believe she did in the Spencer and Hawkins cases. The title of the 1993 article co-authored by Dr. Hayes is ‘Use of Psychometric Measures and Nonorganic Signs Testing in Detecting Nomogenic Disorders in Low Back Pain Patients”. In the draft of another article co-authored by Dr. Hayes and attached to her report, a number of diagnostic indices characterizing nomogenic disorder were listed. Dr. Hayes testified that the article has been re-drafted on this aspect.
5 Although Dr. Hayes now believes that it is inappropriate for her to express an opinion that a person has a nomogenic disorder or is malingering, it is her view that she can properly opine on whether social reinforcement or secondary gain factors are at work in causing or aggravating pain when there are no organic reasons for the pain. Examples of such social reinforcement or secondary gain factors given by Dr. Hayes are financial compensation, avoidance of unpleasant social or vocational responsibilities, increased attention and concern, socially acceptable reasons for failure and provision of time to engage in preferred leisure and social activities. In her report she did opine that social reinforcement is involved in maintaining the Plaintiff’s complaints of pain. She does not opine as to whether this is intentional (which would make it malingering) or whether financial compensation is the operative secondary gain factor (which would make it a nomogenic disorder).
6 I did not accept the argument of counsel for the Plaintiff that Dr. Hayes’ report should be ruled inadmissible on the basis that she used the same psychometric tests in assessing the Plaintiff as she used in her studies for the diagnosis of the nomogenic disorder. I accepted her testimony that although it is inappropriate for her to rely on the tests for a diagnosis of nomogenic disorder (or malingering), she can rely on them for the purpose of expressing her opinion that social reinforcement or secondary gain is involved in maintaining the Plaintiff’s complaints of pain.
7 However, I did find portions of Dr. Hayes’ report to be objectionable; namely, those portions of the report which the jury could utilize to conclude that the Plaintiff has a nomogenic disorder, is malingering or is motivated by financial gain. This included portions of the report from which the jury might reasonably infer that Dr. Hayes is suggesting one of these things applies to the Plaintiff in this case.
8 Dr. Hayes attached 13 articles to her report, including the article and the draft article co-authored by her. Another article was entitled ‘A Fake Bad Scale on the MMPI-2 for Personal Injury Claimants” which presented a scale for using the Minnesota Multiphasic Personality Inventory – 2 (one of the tests administered on the Plaintiff by Dr. Hayes) for the detection of malingers in personal injury claims. Each one of these articles, together with the Plaintiff’s test results, could have been utilized by the jury to conclude that the Plaintiff has a nomogenic disorder or is malingering. I indicated that these articles should not be attached to the report and, when I questioned the value of attaching any of the 13 articles, counsel for the Defendants agreed that none of the articles would be attached to the report when it is given to the jury.
9 An example of a portion of the report which I found inadmissible is as follows:
Ms. Lawrence obtained a score of 35 of the Fake Bad Scale for Personal Injury Claimants (Lees-Haley, English & Glenn, 1991, Lees-Haley, 1992). In Lees-Haley et al’s (1991) research, a cut-off score of 20 correctly classified 24 out of 25 individuals, or 96% of the sample, as malingerers. Eighteen of 20 personal injury claimants thought to be presenting ‘genuine” symptoms were correctly classified using this cut-off score. Ms. Lawrence’s score exceeds the scores of all 20 personal injury claimants thought to be presenting ‘genuine” symptoms. It exceeds the score of 92% of medical outpatients asked to simulate emotional distress resulting from a motor vehicle crash. Indeed, it exceeds the scores of 92% of the 25 personal injury claimants shown to be malingering emotional distress.
Although Dr. Hayes does not explicitly state an opinion that the Plaintiff is malingering, the jury could easily have inferred from this passage that the test result shows her to be malingering. If the jury is to come to such a conclusion, it must do so on the basis of credibility of the Plaintiff and other witnesses, not on the results of psychological testing and studies involving other people.
10 A number of objectionable passages were found in the glossary to Dr. Hayes’ report. For example, the glossary defined the term malingering, which is not itself objectionable, but it then went on to state that malingering should be strongly suspected if any combination of 4 items is observed. One of these items was a marked discrepancy between the person’s claimed disability and the objective findings. This passage could have been utilized by the jury to strongly suspect (and conclude) that the Plaintiff is malingering.
11 On the other hand, I did not rule portions of Dr. Hayes’ report to be inadmissible simply because they stated or quoted from articles to the effect that financial gain from litigation is one of the social reinforcement or secondary gain factors. It is permissible to bring to the attention of juries that one of the reasons for pain which has no objective organic cause may be financial gain from litigation as long as the other potential reasons are given equal weight. I did rule inadmissible some passages of Dr. Hayes’ report where she discussed social reinforcement or secondary gain because she had put too much emphasis on expectations of financial gain as being one of the factors. I was concerned that the emphasis placed on expectations of financial gain may be interpreted by the jury as an indication Dr. Hayes had concluded that it was the factor at work in the case of the Plaintiff.
12 Dr. Hayes’ report was to be re-typed incorporating my rulings before being introduced into evidence and given to the jury.