The Forensic Psychiatric Expert in Post-Daubert Sexual Harassment Proceedings
Harold J. Bursztajn, M.D., Maryam Koupaie, BS, Michele Stephenson, J.D.
Introduction
In 1980, the United States Merit System Protection Board conducted the
first comprehensive national survey of sexual harassment of federal employees
and found that 40% of all women and 15% of all men in occupational settings
report experiencing sexual harassment. [1] Since the
televised senate confirmation hearings focusing on Anita Hill's charges
of sexual harassment against Clarence Thomas, there has been a major
increase in sexual harassment cases. More recently, the United States
Supreme Court unanimously held that Paula Jones' sexual harassment claim
against Bill Clinton will be heard during his second term in office.
[2] Subsequent developments arising out of Paula Jones'
sexual harassment claim have created both a media frenzy and calls for
presidential impeachment. It is now safe to predict that as a result
of Paula Corbin Jones v. William Jefferson Clinton (Civil
Action No. LR-C-94-290), the number of sexual harassment complaints will
again rise.
In sexual harassment cases as in other civil actions, attorneys often
retain a variety of experts to consult, evaluate claims and if the case
goes to trial, to testify. One type of expert often retained by both
plaintiffs and defendants is a forensic psychiatrist. As United States
District Court Judge Nancy Gertner stated regarding the Jones v.
Clinton case, "you can't claim sexual harassment devastated
your life and not allow the claim to be tested." [3]
By examining, formulating an expert opinion, and testifying, the forensic
psychiatrist can play a crucial role in evaluating the cause and extent
of emotional injury the plaintiff claims to have suffered.
Coincidentally, there has been an increasing expansion in the judge's
role as gatekeeper for admissibility of expert testimony. It is thus
also worthwhile for the attorney who expects to present expert testimony
in a sexual harassment case to become familiar with the standards for
admissibility of such testimony in anticipation of a courtroom atmosphere
that will encourage judicial discretion. Such attorney familiarity with
the post-Daubert standards for examining forensic expert testimony can
enhance the likelihood that the forensic psychiatric expert's testimony
will be both admissible and credible to skeptical judges and juries.
Defining Sexual Harassment
Given the potential for misunderstanding, it is worthwhile to restate
how the law defines sexual harassment. Title VII of the 1964 Civil Rights
Act, amended in 1972, defines sexual harassment as a form of illegal
sexual discrimination in employment or in an academic setting. [4]
The Equal Employment Opportunity Commission (EEOC) defines sexual harassment
as sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature, which are unwelcome and unwanted. [5]
It seems as if much work place behavior which is remembered as sexual
harassment is never reported to supervisors as such. In 1987, the Merit
System Protection Board conducted another study where it found that only
11% of all who say they experience sexual harassment report their harassment
to a higher authority and 2.5% of the victims use formal complaint channels.
[6]
Sexual harassment can fall into two categories; quid pro quo (this for
that) or hostile-environment sexual harassment. In the case of quid pro
quo harassment, a supervisor demands sexual activity from a lower echelon
employee in exchange for a job benefit such as a promotion or for the
avoidance of a detriment such as termination. Hostile environment sexual
harassment involves sexually related behavior that creates an intimidating,
hostile, or offensive work environment for the employee. [7]
The latter form of sexual harassment is both more common and more difficult
to prove.
Because both sexes can be victims of either category of sexual harassment,
courts may use the reasonable person or reasonable woman legal standard
to evaluate claims. In the 1991 decision of Ellison v. Brady,
the United States Ninth Circuit Court of Appeals in San Francisco decided
a hostile environment sexual harassment claim and held that, in deciding
sexual harassment cases where the alleged victim is a woman, the court
should use the reasonable woman standard. [8] In Ellison,
the employer had responded to plaintiff's harassment claim by counseling
the harasser, giving him instructions to leave the plaintiff alone, and
transferring him to another location for four months. The court held
that the employer had not taken sufficient steps to remedy the situation
and that a "sex-blind" reasonable person standard ignored women's
experiences and tended to be male-biased rather than "neutral." Other
courts have also adopted the reasonable woman standard to female plaintiffs'
claims.
The Role of the Post-Daubert Forensic Psychiatric Expert
The 1993 Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals,
Inc. [9], set the legal standard for the admissibility
of scientific expert evidence. Daubert was one of many cases
in which the manufacturer of the prescription drug Bendectin was sued
over birth defects allegedly caused by the drug. A federal district court
in the Southern District of New York granted summary judgment for the
defendants on the basis of expert testimony which claimed that numerous
published studies had not found Bendectin to be a cause of human birth
defects. In response, the plaintiffs presented testimony by other well-qualified
experts who used various kinds of unpublished research to reach the opposite
conclusion. In affirming summary judgment, a U.S. Court of Appeals cited
the Frye test, a seventy-year old court ruling, which set forth that,
in order to be admissible, the scientific basis for expert testimony
must have gained general acceptance in the particular field to which
it belongs. [10] In Daubert, the plaintiffs'
experts' research, never published or subjected to peer review, did not
meet this test.
The U.S. Supreme Court, having granted certiorari, vacated the judgment
and remanded the case for trial on the grounds that the adoption of the
Federal Rules of Evidence in 1975 (particularly Rule 702) had superseded
the Frye general acceptance test. The Court stated that such a rigid
standard would be at odds with the Rules' liberal thrust and their general
approach of relaxing the traditional barriers to opinion testimony. [11]
However, the Court also rejected the plaintiffs' claim that admissibility
under the Federal Rules required only that the expert be qualified and
have something relevant to contribute. Instead, the Court concluded, "The
Rules - especially Rule 702 - place appropriate limits on the admissibility
of purportedly scientific evidence by assigning to the trial judge the
task of ensuring that an expert's testimony both rest on a reliable foundation
and be relevant to the task at hand." [12] Thus,
the court did not directly decide the admissibility of the particular
evidence at issue in Daubert, but left that determination
to the trial judge.
A further boost for judicial "gatekeeping" of admissible expert
testimony was provided by Chief Justice Rehnquist on December 15, 1997,
who delivered the opinion for the Supreme Court in the case of General
Electric Company v. Joiner. [13] The opinion reemphasized
that federal court judges have the responsibility to ensure that all
scientific evidence admitted are both relevant and reliable. The message
of General Electric Company v. Joiner is that appeals courts
will be unlikely to overturn a trial judge's ruling as to admissibility
of expert evidence. Thus, today more than ever, the attorney must be
prepared to effectively insure the admissibility of the retained expert's
opinion.
These decisions' overall emphasis on judicial discretion in considering
reliability and relevance has made judges and attorneys scrutinize all
expert opinions based on professional knowledge. Specifically, there
now is a need for greater emphasis on well founded and reasoned pretrial
reports, given the greater likelihood that the admissibility of expert
testimony at voir dire will be challenged. Rule 26 of the Federal Rules
of Civil Procedure specifies that the expert pretrial report must contain
a statement of all of the expert's opinions and their basis, reasons
for the opinions, the data or other information considered by the expert
witness in forming the opinions, and any exhibits which will be used
to summarize or support the expert's opinion. [14]
Thus, the reliability of the expert's methods and the relevance of the
expert's opinion must be demonstrated through careful and logical presentation
of both the opinion and the grounds for the opinion. Post-Daubert,
this can only be the case when the forensic psychiatric expert proceeds
by conducting a careful forensic psychiatric examination and evaluation.
The reliability of the forensic psychiatrist's method continues to be
based on the generally accepted methods of the profession. To be reliable,
a forensic psychiatric opinion needs to be arrived at via consideration
of an alternative hypothesis. A forensic psychiatric opinion is further
strengthened to the extent the expert can refer to peer reviewed clinical
literature. Such an expert opinion makes full use of an evidence based
medicine approach combined with the psychiatric diagnostic interview,
which has a relatively well defined error rate. For example, using the
American Psychiatric Association, DSM-IV guidelines for psychiatric diagnosis,
the concordance rate between any two board certified psychiatrists making
a diagnosis of Post-Traumatic Stress Disorder is as high (80%) as when
family doctors diagnose an infectious disease such as a pneumococcal
pneumonia. An additional safeguard in measuring reliability is the certification
of an expert's proficiency in this methodology by a recognized professional
body, the American Board of Medical Specialties, Board of Psychiatry
and Neurology.
The relevance of the psychiatric expert's opinion is based on a clear
presentation of how the data support the expert's opinion. That such
a requirement may be of paramount importance is illustrated by Jones
v. MetroWest Medical Inc. This case, though not itself a sexual
harassment case, illuminates the need for carefully reasoned medical
expert opinions. In Jones, the plaintiff claimed that she
was suffering from Multiple Chemical Sensitivity (MCS). The plaintiff
proceeded to request from the court that, pursuant to the Americans with
Disabilities Act, the defendant be required to provide plaintiff with
nurses who would remove all chemicals from their clothing and body before
they entered her home. Judge Douglas Woodlock, of the United States District
Court in Massachusetts, denied the plaintiff's request. The court ruled
that plaintiff had failed to show that a diagnosis of MCS fell within
the scope of the Americans with Disabilities Act. In his opinion, Judge
Woodlock emphasized that diagnosing MCS would require excluding alternative
explanations via a deliberate and measured diagnostic process, which
the trial judge noted, only the defense expert had engaged in. This indicated
that the plaintiff might be complaining of a condition not covered by
the ADA. [15] Subsequent to this finding, and in the
face of the likelihood of a court-ordered forensic psychiatric examination,
the plaintiff withdrew her case.
Evaluating Sexual Harassment Claims
Emotional distress and pain and suffering are common damage claims in
sexual harassment complaints. A psychiatric expert can assist plaintiff
and defense counsel in evaluating the validity of these claims. However,
in order for such an expert to be most helpful, the attorney should provide
the forensic psychiatrist with all available evidence necessary for an
objective evaluation of the alleged harm suffered.
In assessing the alleged emotional harm, the expert evaluates issues
raised by a variety of emotional and physical responses to stress including
Post-Traumatic Stress Disorder (PTSD). [16] Sometimes
such claims are buttressed by records of mental health and medical treatment.
Assessing responses to trauma begins with taking a pre and post critical
incident history, to help differentiate symptoms caused by the incident
from coincidental symptoms and signs.
Moreover, there is growing legal and medical recognition that many of
the most damaging effects of trauma are not merely emotional but also
have a physical, particularly a neuro-psychiatric component. [17]
For example, both vulnerability to physical illness and a reduction in
the volume of the part of the brain, the hippocampus which is responsible
for emotional memory, have been described as medical conditions post
serious trauma exposure. Such exposure may also be linked to overactivity
of one part of the brain controlling fear (e.g., the amygdala) with underactivity
of other important areas in the brain. A forensic psychiatric review
and analysis of the medical records and physical conditions that may
be stress related (e.g., irritable bowel syndrome) is also an important
part in the evaluation of damages potentially caused by sexual harassment.
On the other hand, a forensic psychiatric review performed early on can
help discover those plaintiffs suffering from such neuropsychiatric conditions
(e.g., cocaine induced paranoia) which can offer an alternative explanation
to the complainant's perceptions and symptoms.
Whether the alleged sexual harassment is the cause of the injuries claimed
by the plaintiff or is merely coincidental is evaluated by considering
the plaintiff multidimentionally. In addition to the medical and mental
health history, a comprehensive forensic psychiatric evaluation will
consider family, developmental, social, and work history. Questions addressed
may include differentiating unrelated preexisting symptomatic conditions
from "egg shell" skull like vulnerabilities, how extensive
the available social support system was, the degree of freedom to escape
ongoing trauma (e.g., availability of realistic alternatives to working
with the harasser), and whether and how the institutional response to
the report of sexual harassment mitigated or aggravated the damages suffered.
At times, to obtain a clearer picture of a plaintiff or the defendant's
patterns of adaptation to life, a forensic psychiatrist will conduct
a series of psychological tests. Among the most common is the Minnesota
Multiphasic Personal Inventory-2 test (MMPI-2), consisting of 567 true
or false questions. The examinee's responses can be blindly scored by
a protocol-driven computer program. The resulting personality profile
can corroborate in the plaintiff a sequelae of sexual harassment such
as Post-Traumatic Stress Disorder and rule out invalid claims where the
examinee is found to be paranoid, malinger or to exaggerate symptoms.
A comprehensive forensic psychiatric examination will also consider multiple
factors which may affect the reasonableness of the plaintiff's claim.
[18] In this process, the psychiatric expert can analyze
alternative hypotheses, such as whether even if something conventionally
trivial has occurred, the "eggshell skull" vulnerable plaintiff
theory is nonetheless applicable. [19] By the same
token, the expert can evaluate data relevant to a common argument advanced
by the defense that the examinee's claim of sexual harassment is the
result of the plaintiff's encouraging sexual conduct, or even motivated
by rage following the rejection of the plaintiff's overtures in the face
of delusional or personality disorder-based erotomania.
Thus, in cases where the accused has perceived power or is a renowned
public figure such as President Clinton, a forensic psychiatric examination
will be all the more important in determining whether, for example, such
an "easy target" is accused by a plaintiff motivated by erotomania,
a personality disorder, or by attention seeking. Each condition has to
be ruled out in the course of an examination. For example, erotomania,
the delusional belief that an admired figure is in love with the examinee,
seemed to figure prominently in the motives of ex-president Reagan's
assailant, John Hinckley, who hoped that his attack on Reagan would impress
his imagined lover, the actress Jody Foster.
In extreme cases, beyond examining the sexual harassment victim, where
sexual harassment leads to criminal acts such as eventual sexual assault
or even murder, the forensic psychiatrist can provide a psychological
autopsy to highlight how the perpetrators' acts were foreseeable, and
how supervisory inaction contributed with substantial certainty to the
eventual outcome. Such an autopsy, based on psychological profiles of
the victim and the perpetrator, and an analysis of the organization's
failure to properly act, when the organization knew or should have known
of the sexual harassment, can elucidate the nature and extent of the
supervisory or organizational contribution to the eventual outcome.
A variety of special circumstances can lead to additional questions which
need to be considered in the course of a forensic psychiatric evaluation.
For example, while material such as "confessions," as in the
Lewinsky-Tripp taped telephone conversations, have to be considered as
potentially corroborative it cannot be assumed to be actually corroborative
unless the tapes themselves are evaluated as to whether they reflect
fact or fantasy. For instance, a fantasy "confession" can be
the product of depression or one of the other variety of human conditions
which make for vulnerability to suggestion, such as having words put
in one's mouth, and misattributing guilt. Such a misattribution is all
the more likely when one party to the taped conversation has a self-serving
agenda, adopts a hypercritical, self-righteous position, or blurs boundaries
to create an impression for future media access motivated use. A pattern
of past accusations against the alleged perpetrator can be part of the
background for initially interpreting somewhat ambiguous corroborative
evidence such as taped casual conversations. However, only a careful
evaluation of each individual data set can avoid premature cognitive
commitment as to whether a "confession" has a factual basis.
Post-Daubert Prognosis
In the last few years the number of sexual harassment claims has risen.
In the post-Daubert era it is most likely that the psychiatric
expert retained will be a psychiatrist certified not only in General
Psychiatry but also in the subspecialty of Forensic Psychiatry, recognized
by the American Board of Medical Specialties Board of Psychiatry and
Neurology.
In these cases, the expert evaluates the validity of the claims and the
scope of damages. Post-Daubert, this means considering alternative
hypotheses for symptom presentation. By ruling out malingering, exaggeration,
and misattribution of psychiatric symptoms, the forensic psychiatric
evaluation can directly provide evidence supporting or refuting the reasonableness
of the plaintiff's perceptions, reactions, and alleged damages. This
results in the expert's opinion most likely being admissible as expert
evidence and effective in educating a skeptical jury. Additionally, when
the examination reveals questionable damage claims, the plaintiff's attorney
is provided with an early warning system to confront a client who, unbeknownst
to the attorney, may be bringing a suit without cause. More subtly, a
forensic psychiatric evaluation can also highlight the degree to which
organizational response to allegations can control or enable sexual harassment,
thereby setting the stage for determining the extent of an employer's
liability and damage awards. Finally, in an atmosphere of ambiguity created
by accusations, biases, confessions, and denials, a post-Daubert expert
forensic psychiatric opinion can add a much welcome tone of objectivity
to an emotionally charged process.
References
-
Ellisa P. Benedek, Forensic Aspects Of Sexual
Harassment: Serving As An Expert Witness, Providing Courtroom Testimony,
And Preparing Legal Reports, in Sexual Harassment In The Workplace
And Academia 113, 115 (Diane K. Shrier ed., American Psychiatric
Press 1991).
-
Michael Isikoff & Evan Thomas, I Want
Him to Admit What He Did, Newsweek, June 9, 1997, at 30.
-
Edward Felsenthal, An Accuser's Past is Fair
Game Once Again in Many Sex Cases, Wall St. J., June 6, 1997, at
A8.
-
42 U.S.C.A. sec 2000(e) (1981, Supp. 1994).
-
Equal Employment Opportunities Commission:
Guidelines on Discrimination Because of Sex. 45 Fed. Reg. 74676,
74677 (1980).
-
Id.
-
Meritor Sav. Bank v. Vinson, 477 U.S. 57,
62 (1986).
-
Ellison v. Brady, 924 F.2d 872, 878 (9th Cir,
1991).
-
Daubert
v. Merrell Dow Pharm., Inc., 113 S. Ct. 2786, 2790 (1993).
-
Frye v. United States, 293 F. 1013, 1014
(D.C. Cir 1923).
-
Daubert, 113 S. Ct. at 2790.
-
Id.
-
General Electric
Co. v. Joiner, 78 F. 3d 524 (11th Cir. 1996), cert. Granted,
117 S. Ct. 1243, and motion granted, 65 U.S.L.W. 3838 (1997).
-
Fed R. Civ. P. 26(2)(B).
-
Mayotte M. Jones v. MetroWest Medical Inc.,
CA-96-10860-WD.
-
Harold J. Bursztajn et al., Recognizing
Posttraumatic Stress, Patient Care, March 30, 1995.
-
J. Douglas Bremner et al., MRI-Based Measurement
of Hippocampal Volume in Patients with Combat-Related Post Traumatic
Stress Disorder, 152 Am. J. of Psychiatry 973 (1995).
-
Sara Feldman-Schorrig, Factitious Sexual
Harassment, 24 Bull. Am. Acad. Psychiatry Law 388 (1996).
-
Harold J. Bursztajn et al., Medical
Choices, Medical Chances: How Patients, Families, and Physicians
Can Cope With Uncertainty. Delacorte, 1981;Routledge, 1990.
Biographical Sketch
Harold J. Bursztajn, MD, co-directs the
program of Psychiatry and the Law at the Massachusetts Mental Health
Center, and is a senior faculty member of Harvard Medical School in Boston,
Massachusetts.
Maryam Koupaie, BS, manages the National Law, Medicine, and Psychiatry
Consultants in Cambridge, Massachusetts. She is also a student attending
Suffolk University Law School in Boston, Massachusetts.
Michele Stephenson, Esq. is a graduate of Columbia University School
of Law and former clerk for the Honorable Judge Jack B. Weinstein at
the United States District Court, E.D.N.Y. She is currently a litigation
associate at Patterson, Belknap, Webb & Tyler, LLP in New York City.