Vinal v. New England Telephone: Admission of PTSD Psychophysiologic Test Results in a Civil Trial

Roger K. Pitman, M.D., Associate Professor of Psychiatry
Scott P. Orr, Ph.D., Assistant Professor of Psychology in Psychiatry
Harold J. Bursztajn, M.D., Associate Clinical Professor of Psychiatry Harvard Medical School, Boston, MA

AAPL Newsletter. 1993; 18(3): 67-69.

Background

Although it has been an official diagnosis only since 1980 [1], post-traumatic stress disorder (PTSD) has already gained a prominent place in American jurisprudence [2]. Because of the controversy that this disorder Psychophysiologic Testing of the Plaintiff can engender both in general and in individual cases [2], objective means for establishing its presence or absence are desirable. Pitman and Orr have recently proposed the potential forensic application of psychophysiologic testing for PTSD [3]. The following case represents to our knowledge the first time that physiologic test results bearing on a PTSD claim have been admitted into evidence in an American court. (See related story, p. 48-49,66-67.)

The Case

The plaintiff was a woman in her early thirties who was involved in a head-on collision with an alleged hit-and-run driver who was traveling down the wrong side of a divided interstate service road at night [4]. The plaintiff suffered back, neck, and knee injuries and was trapped in her vehicle until the police arrived. Subsequently, the plaintiff developed nightmares of the accident, driving fears, and other symptoms consistent with a diagnosis of PTSD, for which she received psychotherapy and medications. She was also hospitalized twice for depressive complaints.

The plaintiff's attorney obtained a comprehensive forensic psychiatric evaluation, which included a traditional history and mental status examination, observational studies of the plaintiff at home with her family, corroborative interviews of husband and older daughter, and psychometric testing. The plaintiff was referred for psychophysiologic testing to obtain data that would be useful in educating the jury as to the extent of her physiologic reactivity.

In the psychophysiology laboratory, the plaintiff's physiologic responses during recollection of the automobile accident in question were measured using a script-driven imagery technique described in detail elsewhere [3,5]. Her responses to a series of startling tone stimuli were also measured according to a published procedure [6]. The results revealed exceptionally high physiologic responses during the plaintiff's imagery of her accident in comparison to her responses during imagery of her other personal life events, and in comparison to the responses of published non-PTSD, and even PTSD, research subjects during imagery of their personal traumatic events. Her responses to the startling tones were also very high. Application of a discriminant function derived from published research subjects' data to the plaintiff's physiological responses during imagery yielded a 99 percent probability of classification in the PTSD group.

Counsels' Argument Over the Admission of the Test Results

In Massachusetts, the legal standard for the admissibility of novel scientific evidence is still the seventy-year-old Frye test [7], which requires that the approach being used have gained "general acceptance" in the relevant scientific community. In a pre-trial motion in limine, the defense argued that the psychophysiologic test results be excluded on the grounds that they were "an experiment" "highly speculative and inflammatory." "comparable to... a lie detector," and not generally accepted. Plaintiff countered that the acceptance of the technique was demonstrated by its publication in a number of peer-reviewed articles (referenced in 3), its citation in psychiatric textbooks (e.g., 8), the absence of published criticism against it and its implicit recognition in DSM-III-R criterion D.6., "physiologic reactivity upon exposure to events that symbolize or resemble an aspect of the traumatic event" [9, p.250]. Plaintiff rebutted the lie detector analogy by arguing that "the intention of physiologic testing is to assess symptomatology, not truthfulness." Plaintiff also pointed out that during a pre-trial deposition, defenses psychiatric expert had testified that he had not seen any evidence that the plaintiff experienced startle reactions.

The Judges Ruling and the Verdict

At the September 1993 trial, over defenses objection, the judge allowed an expert who performed the psychophysiologic testing to present to the jury graphs of the plaintiff's physiologic responses and to testify that these indicated that the plaintiff met DSM-III-R PTSD criterion D.6 above, as well as D.5, "exaggerated startle response." However, when plaintiff's counsel attempted to ask the expert whether the physiologic results could provide an estimate of the probability of PTSD, the defense again objected. The judge ruled that more foundation for this portion of the testimony was required. Believing that the physiologic evidence already presented was sufficient and fearing the possibility of reversal should the expert be allowed to present a probability figure, the plaintiff did not pursue this inquiry.

The next day, the evaluating forensic psychiatrist presented his opinion, which incorporated the psychophysiologic test results. Again, the calculated probability of PTSD was excluded after defense objected. Upon the conclusion of the plaintiff's case, the defense offered to settle for $200,000, but plaintiff refused. The jury was apparently less impressed than the defense by the psychiatric evidence, including the psychophysiologic test results, because it awarded the plaintiff damages of only $35,000.

Discussion and Implications of a Recent U.S. Supreme Court Opinion

This case serves as an example of the different outcomes in the admission of novel scientific evidence which might obtain under the application of the Federal Rules of Evidence, as opposed to Frye. The judge, applying the Frye standard, accurately perceived that the general acceptance of testing for the presence of psychophysiologic criteria for PTSD, as manifest in the codification in the Diagnostic and Statistical Manual [1,9], was less disputable than the general acceptance of using physiologic data to estimate the probability of the PTSD diagnosis, given the latter technique's publication in only a single article [3]. Had the judge applied a Federal Rules-type standard, he would have been more likely to have admitted the probability calculation.

In the recent celebrated case of Daubert v. Merrell Dow [10] (See Daubert, pp. 66-67.) involving a claim of drug-induced birth defects, the U.S. Supreme Court held that the Frye test was superceded by the 1975 adoption of Federal Rules of Evidence, thereby shifting the standard for the admissibility of novel scientific evidence in Federal jurisdiction from general acceptance to relevance, to which the Supreme Court added scientific validity. State jurisdictions are expected to follow suit. The relevance of an objectively derived estimate of the probability of PTSD in personal injury cases involving claims of mental damage is clear, given the definition of "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" (Rule 401). Thus under a Federal Rules-type standard, the admissibility of a physiologic probability estimate of PTSD is likely to come down to the judge's determination of the soundness of the science that produces the estimate. The manner in which judges, who are not scientists, will assess the validity of scientific data remains to be determined in numerous cases across the land, including those involving psychophysiologic testing for PTSD.

The disastrous jury award in this case ironically may provide reassurance in one respect. Under Federal Rule 403, even if a court were to view favorably the relevance and scientific validity of a psychophysiologic test result for PTSD, it still could conceivably exclude this evidence on the grounds of prejudice, if it were persuaded that the psychophysiologic data would so dazzle the jury as to inappropriately overshadow other relevant testimony. Clearly if other juries are anything like this one, there is nothing to fear in this regard. Also, the chance of psychophysiologic test results being ruled unduly prejudicial may be reduced if the results are offered not as a stand-alone test, but rather as adjunctive to a comprehensive forensic psychiatric evaluation [3].

Acknowledgements: Dr. Mark Greenberg, Professor Linda Saunders, and Attorney Edward Wallace reviewed the manuscript and made helpful suggestions.

References

  1. American Psychiatric Association (1980). Diagnostic and Statistical Manual of Mental Disorders, Third Edition. Washington: American Psychiatric Association.
  2. Stone, A.A. (1993). Post-traumatic stress disorder and the law: Critical review of the new frontier. Bulletin of the American Academy of Psychiatry and the Law 21(1):23-36.
  3. Pitman, R.K., & Orr, S.P. (1993). Psychophysiologic testing for post-traumatic stress disorder Forensic psychiatric application. Bulletin of the American Academy of Psychiatry and the Law 21(1):37-52.
  4. Denise Vinal v. New England Telephone. Commonwealth of Massachusetts. Superior Court Department. Lowell Division, Civil Action No. 91-0564.
  5. Pitman, R.K., Orr, S.P., Forgue, D.F., etal.(1987). Psychophysiology of PTSD imagery in Vietnam combat veterans. Archives of General Psychiatry 44(11):970-975.
  6. Shalev, A.Y.. Orr, S.R, Peri. R. Schreiber, S., & Pitman, R.K. (1992). Physiologic responses to loud tones in Israeli post-traumatic stress disorder patients. Archives of General Psychiatry 49(11):870-975.
  7. Frye v. United States, 293 F2d 1013 (D.C. Cir. 1923).
  8. Kinzie, J.D. (1989). Post-traumatic Stress Disorder. In H.I. Kaplan, B.J. Sadock (Eds.). Comprehensive Textbook of Psychiatry/V. Baltimore: Williams & Wilkins, pp. 1000-1008.
  9. American Psychiatric Association (1980). Diagnostic and Statistical Manual of Mental Disorders. 3rd ed. rev., Washington: American Psychiatric Association.
  10. 10.113S.Ct.2786.125 L.Ed. 2d 469 (1993).