How to Conduct Direct Examination of an Expert Witness

In order for a medical opinion to be admissible as evidence, it must fulfill either

the Daubert Criteria or the Frye test. The effect of Daubert has been to limit expert
testimony to opinions which are based on a scientific foundation. Daubert
specifies that matters such as adequate scientific support and method and a known
error rate must exist. The testimony

of a mental health expert rendering an opinion using criteria which does not meet
Daubert standards is weakened by the implication that it is not based on “sound
science.” In some instances, for example, a mental health expert uses an approach
where there are no peer-reviewed studies or methods, such as when psychologists
compose their own neuropsychological test batteries. In most cases where an
attorney is considering a “Daubert challenge” a contemporaneous and up-to-date
literature search is indicated. Also, extensive case law presently exists as to
specific issues. If you are familiar with the Daubert criteria your effectiveness in
challenging a mental health expert’s opinion, by cross examination, will be more
compelling. On direct examination, you will be better able to reveal the strengths
of an opinion reached under Daubert criteria, because it will be founded on the
science of mental health assessment.

BACKGROUND:

As a general background, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), the U.S. Supreme Court held
that the Frye “general acceptance” test was superseded by adoption in the Federal
Rules of Evidence and that admission of scientific testimony is governed by
Federal Rule of Evidence 702. In short, the Daubert criteria requires that the
expert’s opinion be reached by use of “scientific methodology”, essentially
formulating hypotheses and conducting experiments to prove or falsify the
hypothesis. To establish the validity of the conclusion it is necessary to use
empirical testing, that the method be (or has been) subjected to peer review and
publication, and that it have a known or potential error rate. Further there must
exist maintained standards and controls concerning the operation of that method
(e.g. for example how a psychological test is administered, scored, tested and
interpreted). Validity is further established by the degree to which the theory and
technique is generally accepted by a relevant scientific community.

In 2000, Rule 702 was amended and now includes the additional provisions which
state that a witness may only testify if

1. The testimony is based upon sufficient facts or data

2. The testimony is the product of reliable principles and methods, and

3. The witness has applied the principles and methods reliably to the facts of the
case.

The determination whether or not testimony meets the Daubert criteria is at the
sole discretion of the Judge.
SCIENTIFIC METHODOLOGY:

With the adoption of Daubert, the court defined “scientific methodology” as the
process of formulating hypotheses and then conducting an experiment(s) to prove
or disprove (falsify) the hypothesis. To be admissible, a theory or technique must
be falsifiable, refutable and testable. Also, it must be peer reviewed, published,
and have a known or potential error rate. There must be the existence and
maintenance of standards and controls concerning its operations. The theory and
technique is generally accepted by the relevant scientific community. The
testimony is based on sufficient facts or data. The testimony is the product of
reliable principles and methods. And, the witness has applied the principles and
methods reliably to the facts of the case.

The American Psychological Association then addressed the Daubert ruling within
the context of psychological testing and expressed four (4) guidelines to apply to
Daubert.

1. Use theoretically and psychometrically adequate data gathering instruments.

2. Draw conclusions using scientifically validated theoretical positions.

3. Weigh and qualify testimony on the basis of the adequacy of theory and
empirical research on the questions being addressed.

4. Be prepared to defend the scientific status of your data gathering methods

during the process of qualifications as an expert witness.

The Frye Test is applicable in certain jurisdictions. Admissibility of scientific

evidence under Frye states novel scientific evidence is admissible if it has “gained
general acceptance in the particular field in which it belongs.” The Court keeps
pseudo science out of evidence by deferring to those in the field.

REASONABLE MEDICAL PROBABILTY:

A line of questioning I have suggested to attorneys regarding “reasonable medical

probability” of a medical opinion is the degree of certainty expressed by the expert
based upon all of the evidence reviewed. This line of questioning will tend to
uncover whether or not an expert is biased for the side he is testifying for and
whether the expert has considered contradictory testimony. As everyone in the
audience knows, in order for a medical opinion to be admissible a civil court or
criminal court, or in workers’ compensation, for that matter, the conclusion must
be reached with a “reasonable medical probability or reasonable medical
certainty” which means the opinion is “more likely than not” true. In most
contested cases, there is a “battle of the experts” whereby contradictory opinions
are expressed based upon evidence which is weighed differently by the various
experts. If an expert has an opinion of which he is only 51% certain, then this must
mean that there is 49% of contradictory data available which had to be countered.
It is worth exploring which of the data is contradictory to the expert’s opinion;
doing so may reflect a bias. It may also reveal a lack of understanding by the
expert about what constitutes an admissible medical opinion. Many experts do not
understand the legal basis for expressing a medical opinion. Instead, they believe
that if a medical opinion is “possible” then they can testify to it. They also do not
understand the Daubert Criteria (or the Kelly/Frye Criteria in applicable
jurisdictions) and thus are not able to forensically weigh the medical evidence. On
cross examination, revealing this ignorance in the expert is clearly beneficial.
Also, revealing the expert’s ignorance about these guidelines may enable the
attorney to have the expert’s opinion disregarded by the court as not being
applicable, relevant or admissible.

CHALLENGING THE ADEQUACY OF THE CLINICAL EVALUATION:

In the most legal (and many administrative) venues, the Diagnostic and Statistical
Manual of Mental Disorders IV-TR generally is accepted as the standard for
identifying the necessary clinical criteria for various psychiatric disorders. In
November 1995, the American Journal of Psychiatry, Volume 152 Supplement,
provided detailed guidelines for an adult psychiatric evaluation titled “Practice
Guidelines for Psychiatric Evaluation of Adults.” I do not wish to identify all the
particulars in that article but do refer you to a part of that article involving a
sufficient mental status examination. For your information, a mental status
examination is the equivalent of a physical examination by a “regular doctor,” i.e.,
non-mental health professional. The Mental Status Exam is a description of the
various mental functionings or their derivatives of the evaluee at the time the
examination is conducted. The mental status examination should include the
following elements:

• General appearance including dress, gait, posture, facial expression,

cooperativeness, accessibility, alertness, tenseness, restlessness, friendliness,
tidiness, disorderedness, broodiness, agitation, negativism, indifference, stupor, or
stereotypic behavior.

• General activities such as normal compulsive bizarre or retarded movements,

pressured activity, hand wringing, pacing or crying.

• Disorders in speech such as scanning, hesitating, slurring or stuttering as well as

an inability to identify objects.

• Disorders of thinking such as whether the thinking is interrupted. Thought

production including flow of thought, acceleration or retardation and flow of
thought or distractibility. Thought continuity such as clearness of thought,
coherence, relevance, whether the thoughts ramble, whether they are not specific
to the topic at hand, whether or not perseveration occurs i.e., the individuals stays
on the same topic even though the examiner moves to another topic, flight of ideas
whereby the examinee’s ideas flit from topic to topic without completion or
blocking, whereby thoughts are not completed.

• Thought content includes formation of concepts, handling of ideas, anxieties,

fears, obsession, phobias, hypochondriacal preoccupations, body image concerns,
autistic thinking, ideas of reference or ideas of influence (paranoid type thinking),
self-depreciation, suicidal ideas, somatic delusions, other systematized delusions,
self-referential thinking, hallucinations (abnormal sensory experiences),
apprehensive expectation (anticipating bad things happening), fears of
abandonment or feelings of estrangement.
• Emotional state should indicate how emotions are regulated, mood swings,
control of emotions, anxieties, feelings of unreality, perplexity, agitation,
irritability, depression, apathy, elation, restlessness, or emotional numbing.

• Somatic functioning can include headaches, pains, or other medical system

abnormalities. This can include but is not limited to disturbances of sleep, eating,
appetite, weight, bowel regularity, sex, alcohol or drug abuse, or excessive
smoking.

• Mental grasp should be assessed regarding the person’s understanding of his or

her current situation, attention, concentration, memory, ability to calculate, engage
in abstract reasoning and the quality of their judgment. An absence of an adequate
mental status assessment may constitute a defective psychiatric or psychological
evaluation and permit a challenge as to the adequacy of the expert’s opinion.

THE USE OF PSYCHOLOGICAL TESTING AS PART OF THE BASIS OF A

MENTAL HEALTH OPINION:

In my opinion, the best psychological personality test available for assessing

personality is the Minnesota Multiphasic Personality Inventory-2, better known as
the MMPI-2. This is the most widely given psychological test in the world. It is
the best studied test and the test most agreed upon between inter-rater assessment
i.e., two separate specialists looking at the same test results would agree with the
interpretation of the test. As a psychiatrist who has administered at least two
thousand MMPI-2s (probably more), been trained in its use and who has qualified
as an expert on the MMPI-2 in multiple jurisdictions, I believe that the use of the
test is justified and helpful. I am not particularly fond of computerized
interpretations of this test because they only perform two-point interpretations on
the clinical scales. Furthermore, the computerized printout cannot take into
account the individual’s clinical presentation which may skew the test
interpretation in a direction which is not helpful to the evaluator. An experienced
evaluator of the MMPI-2 is able to do three or four-point interpretations of the test
as well as to incorporate many subtleties which are generally not addressed in a
computerized printout. For example, often questions are left unanswered which are
particularly relevant to a psychiatric assessment. Specific inquiry into these
questions may reveal important clinical information. Also, the MMPI-2 is very
well standardized for its validity scales. The validity scales are helpful to a
psychological evaluator because they report the test taker’s attitude toward the test
and by extension may assist the evaluator in assessing the examinee’s attitude
toward his symptoms. A gross overstatement of psychiatric pathology evidenced
on the MMPI-2 Validity Scales may be very helpful in assessing the degree of
psychiatric symptoms the person is reporting. Sometimes, the degree of
overemphasis is so substantial as to cause the evaluator to entertain a diagnosis of
malingering i.e., intentional conscious misrepresentation of symptoms. This test is
not a definitive test for malingering, but it does become part of the basis of an
opinion regarding this diagnosis.

Within the various validity scales, there are cross-referencing scales which further
assist the examiner in drawing conclusions about the test taker’s attitude. One
scale, the F Scale, is a good measure of emotional distress; however, the F Scale
may also be elevated if the person has a reading problem. By examining another
validity scale, the VRIN, the Variable Response Inconsistency Scale, the examiner
can determine whether or not an actual reading discrepancy exists since the VRIN
should be elevated if there is a reading problem. Being able to rule out a reading
problem is beneficial in establishing the cause of an F Scale elevation.

The MCMI-III, the Millon Clinical Multiaxial Inventory-III, is in my opinion not a

particularly useful test in a forensic setting because it overdiagnoses personality
disorders. I believe the test does not fulfill the Daubert Criteria either, in that only
three questions out of 175 questions addressing the test taker’s attitude. As such, I
believe, it does not have a falsifiability rate that is scientifically reliable.

Many tests are face obvious. This is not a reason to avoid them, but it does impact
their reliability. The Beck Depression Inventory for example is about depression.
The questions clearly indicate it is a measure of depression. An individual who is
trying to exaggerate his level of depression would easily do so with this test.
However, by using this test in conjunction with the MMPI-2’s validity scales, I
have found to be clinically useful. Similarly, the State-Trait Anxiety Inventory or
Zung Anxiety Inventory or Beck Anxiety Inventory are all face-obvious tests
which may be used in conjunction with an MMPI-2 validity assessment regarding
test-taker attitude.

NEUROPSYCHOLOGICAL TESTING:

There exist many peer-reviewed neuropsychological test batteries which assess

various parameters of neuropsychological functioning. Those include but are not
limited to the Halstead-Reitan Battery, the Luria-Nebraska Test Battery, the
WAIS-III Battery, the Wechsler Memory Scale III, the Wisconsin Card Sort,
Trails A and B and about a thousand others.

Some neuropsychologists use nonstandard procedures, that is to say they

administer parts of various test batteries in order to perform a forensic assessment
of an individual’s neuropsychological functioning. I believe that under Daubert,
this is not permitted because the nonstandard procedures are not falsifiable and
they have not been peer-reviewed. This flexible battery approach, therefore, has
not been subjected to adequate scientific testing. Even if the examiner is qualified
to administer these tests, I believe Daubert opens the door to challenge the
admission of this neuropsychological evidence in a medical-legal setting. There is
a distinction between methodology and qualifications. Said another way, Daubert
requires that in order for an expert’s opinion to be admissible, the entire reasoning
process must be valid. A link must exist between the test results and the
conclusions drawn.

THE USE OF FORCED-CHOICE TESTING IN FORENSIC

NEUROPSYCHOLOGICAL ASSESSMENT:

Forced-choice testing means the test taker must express an answer to a question.
The first forced-choice test I became familiar with was the Rey 15 Items Test.
Subsequent study of this test found that it was not particularly reliable as a forced-
choice test. Other tests have been developed. For a more complete discussion
about forced-choice testing and a diagnosis of malingering, I refer you to Rogers’
Clinical Assessment of Malingering and Deception, Second Edition. According to
Rogers, forced-choice testing is composed of two elements: 1. A specific ability is
assessed by a large number of items presented in a multiple choice format. 2. A
person’s performance is compared to the likelihood of success based on chance
alone, i.e., no ability. “All widely used forced-choice tests have two multiple
choice alternatives. Therefore, the probability of purely guessing, i.e., analogous to
no ability whatsoever, the correct response is 50%. Scores significantly lower than
chance performance suggests that sensory cues may have been perceived, but the
patient chose not to report the correct answer. Other viable explanations are not
apparent. The compelling conclusion is that the patient who scores below
probability is deliberately motivated to perform poorly. The conclusion of
malingering, however, must be derived from the total clinical context.” Two of the
more commonly used forced-choice tests today are the TOMM (Test of Memory
Malingering) and Variable Response Indicator. Other tests include the PDRT
(Portland Digit Recognition Test) and the Multi-Digit Memory Test. The
Recognition Memory Test which is a standard neuropsychological test also has
been used as a forced-choice test. A later version of the 15-Item Test, the 21-Item
Test, is a shorter forced-choice test, but because of its brevity, this decreases the
probability of obtaining statistical significance.

Another group of tests to assess malingering are self-report instruments. I again

refer you to Rogers for a full description of them. They include the M-Test, the
Malingering Scale, Tehachapi Malingering Scale, the Malingering Detection
Scale, the Malingering Probability Scale, and the Structured Inventory of
Malingered Symptomatology. Others are the Inventory of Problems and the
Sentence Completion Test.

OTHER TESTS FOR MALINGERING:

The MMPI-2 has validity scales which may be of such significance as to raise the
possibility of malingering. The Rey Auditory Verbal Learning Test is also useful
for the assessment of malingering particularly those associated with mild head
injuries. Low scores of recognition in the California Verbal Learning Test is also
suggestive of malingering as are the Memory Assessment Scales. Atypical
performance on tests such as the Wechsler Memory Scale revised or the WAIS-III
are other indicators of intentionality.

When cross-examining a neuropsychologist about the neuropsychological

assessment of an allegedly brain-damaged individual, I believe the absence of
forced-choice testing greatly undermines the reliability of the proffered opinion.
Given the medical-legal context of a neuropsychological injury, I believe it is
incumbent upon the neuropsychologist to use forced-choice testing. As a
psychiatrist who is often involved in neuropsychiatric cases, I myself often
administer forced-choice tests as part of my mental status examination,
particularly when there is a suggestion of “faking bad” on the MMPI-2, whereby
the individual is overstating his level of pathology beyond what is expected. Other
indicators for using forced-choice testing in a psychiatric assessment would be the
assertion by others that an individual who is alleging difficulties with memory,
attention or concentration is not giving a full effort. For example, if a person
alleges a serious depression associated with poor memory, and I administered the
TOMM, which then falls below the cut point for malingering, I believe I have a
good basis to express an opinion the individual is overstating his deficit.

As noted above, I believe the MMPI-2 is a very good screening test for the
possibility of malingering. If indeed clinical assessment plus psychological testing
suggests an effort to intentionally deceive the examiner, then malingering is to be
considered. Ultimately, malingering is a conclusion reached by the Trier of Fact.
The expert who considers it and rules it out or rules it in as a possibility, is
performing a more complete examination than the expert who does not consider it
at all. This inquiry also is worthy of examination.

In closing, I find that the better prepared I am, and the better prepared the attorney
is who has hired me, the better the outcome of my testimony, by which I mean my
conclusions and logic are well understood such that jurors could find themselves
in agreement with me for rational reasons. Conversely, the better prepared the
attorney is for cross-examination, the more fruitful the cross-examination will be.
This seems face obvious, but is worth mentioning because of its importance. As an
expert, I believe it is my job to educate the attorney for whom I work about
psychiatric pathology, its relevance to the case and how the attorney can elicit the
best evidence from me and the best evidence from the opposing expert. I do not
believe a psychiatrist helping an attorney prepare direct or cross-examination
question is advocacy. It is the expert’s job, I believe, to educate the attorney so
that the attorney can help the expert educate the jury or other Trier of Fact about
the elements the expert is expert at. If the expert understands the litigation process
to be one of discovery, then assisting an attorney to discover contradictions or
deficits in the opinion of an opposing expert is not advocacy, but rather expert
witnessing once removed. Furthermore, it is necessary for the expert to understand
the basis of the opinions reached by the opposing expert in order to fully consider
the basis of his opinion.

When teaching about direct and cross examination of mental health expert
witnesses, I have sometimes recommended that the best cross-examination of an
expert witness is with your own experts. Taking the expert’s direct examination
and examining it through your own expert often provides the clearest exposition
about the shortcomings of the opposing expert’s opinions. A recent example
occurred in a murder case in which I testified for the defendant. It was my
testimony the defendant had a dissociative state immediately following a motor
vehicle accident whereas the prosecution’s psychiatric expert believed the
defendant drove away from the scene of the accident because he was intoxicated
and had an alcoholic blackout about remembering what he did. This was a crucial
issue for the jury in this particular jurisdiction (Minnesota). Using the literature
and also relying on a forensic toxicologist, I was able to state with certainty, not
just medical certainty, that alcoholic blackouts do not occur with a blood alcohol
of 0.15 mg. The prosecutor’s expert was not able to rebut my testimony. In this
fashion, I was used to “cross-examine” the prosecution’s expert.

Case law and principles addressed here apply to a cross-section of venues, State
and Federal, and civil, criminal and administrative cases. This article is an
adaptation of Dr. Raffle’s 2011 presentation to the Sacramento County Bar
Association on the Direct Examination and Cross-Examination of a Mental Health
Expert Witness in Workers’ Compensation Proceedings. Call Dr. Raffle directly at
(415) 461-4845 to discuss the details of your case.