                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                             SUPERIOR COURT OF NEW JERSEY
                                             APPELLATE DIVISION
                                             DOCKET NO. A-4137-14T3

ALEXANDRA RODRIGUEZ,
                                                APPROVED FOR PUBLICATION
     Plaintiff-Appellant,                              AS REDACTED
                                                     April 27, 2017
v.                                                APPELLATE DIVISION

WAL-MART STORES, INC., and/or
WAL-MART STORES EAST, LP, and/or
WAL-MART STORES EAST I, LP,

     Defendants-Respondents.
____________________________________

            Argued April 3, 2017 – Decided April 27, 2017

            Before Judges Sabatino, Nugent and Haas.

            On appeal from Superior Court of New Jersey,
            Law Division, Gloucester County, Docket No.
            L-844-12.

            Andrew A. Ballerini        argued     the   cause   for
            appellant.

            Patrick J. McDonnell argued the cause for
            respondents (McDonnell & Associates, P.C.,
            attorneys; Mr. McDonnell, Kailee H. Farrell
            and Gwyneth R. Williams, on the brief).

     The opinion of the court was delivered by

SABATINO, P.J.A.D.

     Plaintiff in this personal injury case appeals on several

grounds   from   a   no-cause   jury    verdict.        Among   other   things,

plaintiff    argues    that     she    was    unduly    prejudiced      by   the
admission, over her objection, of extensive testimony from a

defense       medical      expert      opining     that   she    had       magnified     her

symptoms      and    her      alleged    injuries     from      the    accident.        The

testifying doctor was not a psychiatrist, psychologist, or other

mental health specialist.               Plaintiff contends that the admission

of     this     expert        testimony       unfairly    impugned          her   overall

credibility and thereby deprived her of a fair trial on both

liability and damages.

       For the reasons that follow, we conclude that the expert's

opinions on symptom magnification were improperly admitted, and

that plaintiff was sufficiently prejudiced by that ruling to be

entitled to a new jury trial on all issues.                            In doing so, 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, including the

Eighth Circuit's seminal opinion in Nichols v. American National

Insurance Company, 154 F.3d 875 (8th Cir. 1998).

       A     qualified        expert     is    not    precluded,           however,     from

providing factual testimony recounting observations the expert

made       about    plaintiff's        physical      movements        or    responses     to

testing during an examination, subject to exclusionary arguments

under      N.J.R.E.     403    that     may   be   asserted      on    a    case-specific

basis.       Nor is a qualified expert precluded from testifying that




                                              2                                   A-4137-14T3
a plaintiff's subjective complaints appear to be inconsistent

with objective medical test results or findings.                           In addition,

we   do    not     foreclose      the     admission         of    opinion      testimony

concerning       symptom     magnification       or    similar         concepts     from   a

qualified expert in a non-jury case, also subject to Rule 403.1

                                          I.

     Plaintiff Alexandra Rodriguez claims that she was injured

when a metal rack display (known in the retail field as an

"endcap") suddenly fell on her when she was shopping at a Wal-

Mart store2 in Turnersville on June 6, 2010.                       Photographs taken

after     the    incident    show   that       there   were       garments     on    racks

attached    to    the   endcap.         According      to   plaintiff's        liability

expert, a professional engineer, the portion of the rack that

allegedly       fell    on    plaintiff,        inclusive         of     the   displayed

clothing, weighed approximately 141 to 157 pounds.

     The endcap is designed to be secured by a single metal clip

at the top and two clips at the bottom.                          The top clip slides



1 In the unpublished portion of this opinion, we address and
reject as unmeritorious the other discrete arguments plaintiff
has advanced on appeal.

2 Plaintiff's complaint named as defendants "Wal-Mart Store,
Inc." and "Wal-Mart Stores East, LC." Defendants state that the
proper name of the business entity responsible for the
Turnersville store is "Wal-Mart Stores East, LP."   For ease of
discussion, we shall refer to plaintiff's adversary as "Wal-
Mart."



                                           3                                      A-4137-14T3
into a vertical metal frame, held in place with the assistance

of gravity.

      Plaintiff        described    the      incident      on   several     occasions,

doing so with varying details.                   A few days after the incident,

plaintiff stated in an interview that she did not hit the endcap

shelf as she turned the corner with her shopping cart.                             At her

later deposition, she testified that she "nipped" the shelf, and

that the basket on her cart struck the fixture's horizontal

bars.       In   her    trial    testimony,        plaintiff     could      not    recall

stating that she had hit her cart against the rack.                               She was

unclear about what portion of her body came into contact with

the display when it fell.

      Although plaintiff was accompanied at the store by a friend

and her teenage daughter, neither of them testified at trial.

No store personnel witnessed the endcap fall.                         Store employees

did   attend     to    plaintiff    after        the   incident,      and   called      for

medical assistance.            Plaintiff reported pain in her right arm,

and was taken to a local emergency room.

      Plaintiff        was   treated    by       several    doctors    following        the

incident.        A post-accident MRI study revealed a right upper

ulnar neuropathy.            Plaintiff contends that condition was caused

by    the    incident,        whereas     Wal-Mart         disputes     such      alleged

causation.       Eventually in 2013, plaintiff had a spinal cord




                                             4                                    A-4137-14T3
stimulator    implanted       to    relieve     what     she    contends     was    her

persisting pain.        She also complained of swelling of her hands

and other lingering conditions.

       Plaintiff presented medical testimony at trial from several

experts.     They included an orthopedic surgeon, a neurologist,

and a family medicine practitioner with expertise in what is

known as Complex Regional Pain Syndrome ("CRPS").                         The latter

expert    diagnosed     plaintiff     with      "Type    2"    CRPS.    He    further

opined that her condition, despite treatment efforts, was likely

to be permanent.

       Wal-Mart denied plaintiff's contentions of liability and

compensable       injury.      With       respect       to    liability,     Wal-Mart

disputed that the endcap was in a dangerous condition.                              The

company    also     disputed       that   the     fixture      actually      fell    on

plaintiff and, as she alleged, trapped her.                    Among other things,

the defense presented testimony from an employee familiar with

maintenance at the store, who stated that the endcap had not

been   noticed     to   be   unstable     or    hazardous      before   plaintiff's

alleged incident.

       During defense counsel's cross-examination of plaintiff's

liability expert at trial, the engineer acknowledged that it

would have been physically impossible for the display to fall

had it merely been bumped by plaintiff's shopping cart.                             The




                                          5                                  A-4137-14T3
engineer also acknowledged that, if the display fell, it would

not   have    landed       solely       on    plaintiff,        but    also     would    have

contacted the opposite wall.

      Plaintiff contended that these particular statements by her

liability expert are not dispositive, arguing that there were

ample factual grounds for a jury to find that the store is

liable for the happening of this accident.                            She requested, and

the trial court issued, an instruction advising the jury that

there was no proof of comparative negligence on her part.                                   In

addition, plaintiff requested a jury charge on the doctrine of

res ipsa loquitor.              Over Wal-Mart's objection, the trial court

issued that charge, albeit with a modification we discuss in

Part III, infra.

      Aside    from       liability,         Wal-Mart        also   presented    competing

proofs on damages.          It called several medical experts to support

its   theory       that    plaintiff         was       not   injured      in   the   alleged

accident,     and    that       the    physical        symptoms     and    sensations      she

complained of were caused either by other accidents or by her

underlying physical and psychological conditions.

      In     its    verdict,          the    jury      unanimously        determined     that

plaintiff     failed       to    meet       her       burden   of   proving     Wal-Mart's

liability.         The jury consequently did not address the damages

questions on the verdict form.




                                                  6                                  A-4137-14T3
       Plaintiff now appeals, raising several issues of claimed

error.       Those issues, which we list in a different order than

presented      in    her    brief,       include:         (1)     improper         and     unduly

prejudicial admission of the defense neurologist's testimony on

"symptom magnification" and similar concepts; (2) improper and

unduly   prejudicial        admission         of    testimony      by    another         defense

medical expert attempting to discredit the general viability of

a   diagnosis       of   CRPS;   (3)      improper       admission       of       evidence      of

plaintiff's prior accidents and injuries; (4) failure to omit

from   the    res    ipsa    jury    charge         a   reference       to    a    plaintiff's

"voluntary     act";       (5)   other     trial        errors;    and       (6)       cumulative

error.

                                              II.

       The    admissibility         at    a    civil      jury     trial          of     "symptom

magnification," or equivalent opinion testimony, from a defense

medical expert raises an issue of first impression that has not

been decided in any prior reported case in this state.                                    Because

this is a legal issue, we review the trial court's ruling on the

subject de novo.            Royster v. N.J. State Police, 227 N.J. 482,

493 (2017); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995).




                                               7                                         A-4137-14T3
                                                A.

      During its defense case, Wal-Mart proffered testimony from

a   medical    expert,      a    neurologist,           who     had     examined     plaintiff

almost a year before the trial.                        The medical examination took

about two hours.

      The record shows that this defense expert had substantial

credentials in several disciplines.                        He was board-certified in

neurology,     internal         medicine,        and     electrical        studies     of    the

brain.        He     completed         a       residency       in       neurology    at     Duke

University,        as   well     as        a   fellowship        in      disorders    of    the

electrical activity of the brain and the spine.                              As of the time

of his testimony, the expert had privileges at two New Jersey

hospitals, and practiced adult neurology full time.

      The     expert        admittedly           was      not       a     psychiatrist        or

psychologist, although he noted that he had treated patients

with both neurological problems and psychological problems.                                  The

expert   asserted       that         there      was     some    "overlap"      between      the

disciplines of psychiatry and neurology, but conceded that the

certification requirements of those two respective specialties

were "very, very different[.]"

      The     trial     court        deemed       the     expert         qualified    in     the

respective         fields       of     neurology,          internal         medicine,       and




                                                 8                                    A-4137-14T3
electrical studies of the brain.                       Plaintiff's counsel did not

object to this finding of the expert's qualifications.

       Prior to the neurologist addressing symptom magnification

and other related topics, plaintiff raised an objection to the

expert presenting opinions on such matters.                                    The trial court

accordingly      conducted         a    hearing        pursuant           to     N.J.R.E.         104,

outside    of    the     jury's        presence,           at     which        the     expert      was

questioned by both counsel.                   The expert enhanced his testimony

with demonstrative slides, with highlights of key points, which

he had personally prepared to display to the jurors.

       The defense expert opined that the symptoms of persisting

pain    plaintiff       complained        of        were        inconsistent           in     several

respects    with       his    observations            of        her   during         her      medical

examination,     and     also      with       certain       aspects       of     the        objective

studies,    including        the       MRI.         More    specifically,              the     expert

stated that the patient's responses were consistent with what he

referred to as "somatization," which he described as "a process

where   individuals          describe         experiencing            symptoms         of     various

types     that   are     not    accompanied            by        objective           findings      and

interpretations."        However, the expert did not formally diagnose

plaintiff with a somatoform disorder, acknowledging at the Rule

104 hearing that he would need to involve a mental health expert




                                                9                                            A-4137-14T3
to confirm such a diagnosis.                    The expert also stated that, in

his opinion, plaintiff was magnifying her symptoms.

      After         the     trial       court    heard         the      expert's        proposed

testimony, counsel presented arguments on plaintiff's motion to

exclude       the    expert's       opinions     on        "symptom        magnification"         or

equivalent concepts.               During that colloquy, plaintiff's counsel

cited    to    the        trial    court   the       Eighth       Circuit's      decision         in

Nichols, supra, 154 F.3d at 884, which disallowed such opinion

testimony where it is used as a "thinly veiled comment on a

witness'[s] credibility."

      The trial court overruled plaintiff's objection.                                   At the

outset    of    its       ruling,    the   court       did     acknowledge       that,       as   a

general proposition, "we can't have witnesses that testify to

what they think [is] somebody's credibility."                               Nonetheless, the

court found no bar to the defense neurologist opining that there

was     "no    objective          basis"   to        support      plaintiff's         expressed

complaints and that she thereby was "exaggerating."                                   The court

concluded that the expert had provided a sufficient foundation

within    his       fields    of    expertise         to    present        opinions     on   such

matters.

      The      trial       court    did    not       address       in      its   oral     ruling

plaintiff's         citation       of    Nichols.           Nor      did    it   discuss      any

considerations of alleged undue prejudice under N.J.R.E. 403,




                                                10                                      A-4137-14T3
which,   as    plaintiff's      counsel         had   argued,     can   justify       the

exclusion of otherwise-admissible evidence.                      Even so, the court

implicitly recognized at least the potential for the jurors to

place    undue    reliance      on   the        expert's   opinions         because    it

announced,     sua    sponte,    that      it     would    provide      a    cautionary

instruction to the jurors.              That instruction would remind the

jurors that, ultimately, it is their function "to judge the

credibility of the plaintiff."

                                           B.

    At that point, the jurors returned to the courtroom and the

defense neurologist resumed his testimony.                   We present here, in

excerpted     form,    some   of     the    key       portions    of    the    expert's

opinions on symptom magnification and cognate subjects:

                   [DEFENSE COUNSEL]: All right Doctor. I
              think there's, left off at the slide that's,
              kind of conclusions about what you're able
              to determine after your exam. First of all
              were you able to determine one way or the
              other whether there was a soft tissue injury
              to the right side of her neck or her right
              arm?

              A: Yeah, the character of her initial
              complaints would make sense for that.     So
              she mostly like did have a strains involving
              the right neck area, possibly the right
              shoulder region.     And she may have even
              bruised her right arm, although there was no
              evidence of any external trauma.

                   Q: And again was that, her complaint or
              subjective,   was  that  supported   by  any
              contemporaneous medical records in that they



                                           11                                  A-4137-14T3
observed any sort of spasm of the neck or
bruising of the arm or anything like that?

A: I think the only description initially
was that she had some tenderness in those
areas, but there was no described swelling,
bruises, contusions, lacerations, anything
objectively they could see.

     Q: And did she sustain any           disc
herniation as a result of anything        that
happened in June of 2010?

A: No.

     Q: How about any damage to the nerves
of her right or her left arm?

A: No.

     Q: Doctor did you have, the next slide
deals with the diagnosis of complex regional
pain syndrome. I think at the time she was
complaining about it in her right arm.

A: Which time?

     Q: When you examined in her March of
2014.

A: Correct, it was   limited   to   the   right
upper extremity.

     Q:   Okay.  First   of   all  was   the
presentation in her right arm, was that a
usual presentation for complex regional pain
syndrome?

A: Well again there are certain findings
both subjective and objective that we look
for.   Subjectively she had most of those
complaints   that   one  would    look  for.
Objectively   I   could not    verify  those
findings.




                     12                           A-4137-14T3
              But they're also accompanying other
         non-physiologic findings.  In other words,
         there [are] other findings for example with
         her right face that didn't make any sense
         and therefore that brings up concern that
         some of the findings may not be of true
         nerve origin.

         [(Emphasis added).]

    At this point, the expert introduced to the jurors the

concept of "somatization":

              Q:    And     Doctor   what's  the   term
         somatization? Did you reach any sort of
         conclusion     or    consider   the  fact   of
         somatization?     And what exactly is that if
         you could explain that to the jury?

         A: Basically it's a clinical state where one
         would   present   at  different   times  with
         different complaints.    The complaints would
         be evaluated fully.    You know, for example,
         someone   can   present   with   chest  pain,
         abdominal pain, different types.     You work
         them up. You find nothing specific.

              Eventually you come to the    conclusion
         that there's nothing usually due   to medical
         reasons. And repeated, that type   of history
         would then be referred to as a     somatoform
         disorder, somatization.

         [(Emphasis added).]

    The expert went on to elaborate how he reached his opinion

that plaintiff's reported symptoms were consistent with such a

"somatic" process:

              Q: Is there an overlap between what
         let's say a neurologist or a belly doctor
         would do and a psychiatrist would do in




                               13                         A-4137-14T3
terms of trying to find out, trying to reach
a conclusion about somatoform disorders?

A: Sure.    Before anyone comes     to that
conclusion, one takes a great       deal of
hesitation.   One doesn't want to    diagnose
that until you’ve made sure that    there is
nothing medically going on.

     So   the   first  obligation    of  the
physician is to explore the complaints fully
and   totally.     Do  whatever   tests  are
necessary    to   make   sure   there’s   no
explanation.

     And then one may even want to get other
opinions.   And then if one can’t find a
cause for it, then it comes down to a
clinical decision, whether it's due to
anything medical or sometimes we can't find
causes for things.

     But if it's repeated over a period of
time with different symptoms, then one can
define that as a somatoform process.

     Q: Now Doctor I didn’t pull your box
up, but you've got about a banker box full
of records and you evaluated her.     Before
you reached that opinion about somatization,
did you go through [that] type of analysis
in this particular case?

A: Well the advantage people    like me have
sometimes is we have a volume   of records to
look at, you know. One can go   back and look
at information for, you know,    years if not
decades.

    . . . .

     And there is a background history of
claims   of  chronic and  tractable  pains
involving her abdomen for which she's had
extensive work ups.   There are claims of
intractable disabling pains involving her



                     14                         A-4137-14T3
         lower back and her right leg.      And the work
         up   I   saw  really   didn't      explain   it
         adequately.

              And   there    were  other   claims   at
         different times of pain difficulties.     And
         this was in a context of ongoing psychiatric
         difficulties.     And that just brings up
         concern   that   things  like   a  somatoform
         disorder may be there.

         [(Emphasis added).]

    Defense counsel then moved the questioning to the related

topic of "symptom magnification."      Before the expert opined on

that concept, the court gave the jurors, as it had planned, the

following limiting instruction:

         THE COURT:   Yes, the Doctor had within his
         field of his experience and expertise,
         utilized what he sees and observes to
         determine whether the symptoms that are
         being expressed have some objective basis
         for them and give an opinion or a basis for
         them.   He can give an opinion with regard
         [to] that.

              But it relates to credibility. And you
         should understand that ultimately you are
         the people that judge the credibility of the
         plaintiff.    And so you can take what the
         Doctor   says.   But   ultimately  it's your
         decision as it relates to credibility of the
         plaintiff    and     determine    from  your
         determination what to accept and what not to
         accept.

    The expert then proceeded to define symptom magnification.

He explained why, in his opinion, plaintiff had exhibited that

characteristic:




                                  15                       A-4137-14T3
                [DEFENSE COUNSEL]: Doctor as a result
           of your exam and the review of the records,
           did   you  form   an  impression  that  the
           plaintiff might be magnifying her symptoms
           and you can describe for us what symptom
           magnification is.

           A: Sure. The answer is yes, there was some
           observations that would be compatible with
           symptom enhancement or magnification.

                And   basically   what  it    is   is   a
           subjective evaluation, looking at someone,
           testing   them.      For  example,    applying
           pressure to let's say the neck area when
           one's complaining of pain.      And when one
           barely touches the skin or moves the skin
           sideways and someone is screaming, okay,
           that's disproportionate to what one would
           expect in terms of that evaluation.

                And that's what symptom magnification
           is, is a response that seems to be excessive
           compared to what should be observed in a
           given situation for most individuals.

                And     again  everyone is  a   little
           different    because of their psychological
           make up.

           [(Emphasis added).]

    In a related vein, the neurologist offered his opinions on

whether   plaintiff's   symptoms   of   pain   were   "psychogenic"   in

nature:

                Q: Doctor in terms of putting it
           together, what is psychogenic pain and
           psychogenic [sic], can it explain real
           physical findings over time?

           A: Well a psychogenic pain is a very
           complicated process. One is, an implication
           is that there is a lot of psychological



                                   16                          A-4137-14T3
         input into the pain.     So for example if
         somebody's upset and you go over and you tap
         their shoulder a little bit, okay, they may
         scream and yell where somebody else you
         touch them, they don't even blink an eye.
         So your psychological makeup determines how
         you respond to pain.

              But if you are complaining of pain, one
         needs to go all out to make sure that
         there's nothing on a physiologic basis first
         before you come to that conclusion.

              Q: And is, all the things that you
         observed in the exam, was that consistent
         with her prior history, her 10 year history
         before hand?

         A: Well I think it lays the foundation that
         there was predisposition to chronic pain.
         Not only chronic pain, but chronic disabling
         pain.    And this was interacting with her
         psychological state.      So there was a
         history.

         [(Emphasis added).]

    On   cross-examination,    plaintiff's   counsel   attempted    to

neutralize   the   defense    expert's   opinions   that    plaintiff

exaggerated her symptoms:

              [PLAINTIFF'S COUNSEL]: And in this
         case,    nobody's    diagnosed    her    with
         somatization in these records, did they?

         A: Well the physicians treating her were
         treating her for pain and no one approached
         that diagnosis, no.

              Q: And you have records that go back to
         the '90s, correct?

         A: No, I have some records.         I don't have
         all her psychiatric records.



                                 17                          A-4137-14T3
     Q:   So   you're   telling   this    jury
something about somatoform disorder. You're
not   a   psychiatrist.      You're    not   a
psychologist and you don't have all the
psychiatric records, true?

A: Well they weren't supplied because she
had psychiatric records going back to her
teenage years.

     Q: All right, but is what I said true?

A: I'm not sure. Repeat the question.

     Q: Sure. You're telling this jury she
has somatoform disorder but you don't have
all the psychiatric records and you're not a
psychologist or a psychologist, is that all
true?

A: I don't need the psychiatry necessarily
to make that assumption.

     Q: I just want to know if what I said
is true.

A: That's true.

     Q: And with somatization, even if she
had somatoform disorder, somehow there was,
if the moon was blue and we all agreed on
something in this case and she, we all
agreed she had somatoform disorder which we
don't obviously, in somatoform disorder
isn't the pain real to the patient?

A: To them it's real, yes.

     Q:   And   it's   actually   medical[ly]
contraindicated to tell a patient that it's
all in their head, if they were to have
somatoform disorder, isn't that true?

A:   I  don't   think   the  word   medically
contraindicated.   I think it depends on the



                     18                          A-4137-14T3
            individual.   It depends on the approach to
            it. It often is ineffective because to them
            it's all real.

                 Q: All right.   Can we say it's not a
            good idea to tell a patient who has
            somatoform disorder that it's all in their
            head?

            A: That's not a good idea, correct.

            [(Emphasis added).]

    Beyond     this,      counsel   also     questioned     the     expert     about

whether plaintiff had exhibited "pseudo seizures."                     The expert

agreed that such events are considered "a form of somatization,"

and that "at times" a patient may be "volitionally" presenting

such symptoms.       As a possible illustration of such a somatic or

"psychogenic" event, the expert referred to a situation in which

plaintiff    went    to   the   hospital      after    an   argument      at   home,

complaining     of     "breathing       difficulties,       shaking,      fatigue,

dizziness, and also claimed to have left arm pain and numbness."

That episode, diagnosed as an "anxiety reaction," was declared

by the expert to be "part and parcel of the entire history" of

episodes    "that    would      suggest      or   support    that    there      were

psychological features contributing to her medical state."

    No      other    testifying     witnesses         contested     the    defense

neurologist on these points.            Consequently, he provided the only

testimony     the     jury      heard     about       symptom     magnification,

somatization, and the like.



                                        19                                 A-4137-14T3
                                    C.

       The courts of this state have long adhered to the cardinal

principle that "[i]t is within the sole and exclusive province

of the jury to determine the credibility of the testimony of a

witness."    State v. Vandeweaghe, 351 N.J. Super. 467, 481 (App.

Div. 2002), aff'd, 177 N.J. 229 (2003).         "[T]he jury is charged

with    making    credibility    determinations       based   on        ordinary

experiences of life and common knowledge about human nature, as

well as upon observations of the demeanor and character of the

witness."    State v. Jamerson, 153 N.J. 318, 341 (1998) (citing

State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff’d,

130 N.J. 554 (1993)).

       In furtherance of this exclusive jury function, "[w]e do

not allow one witness to comment upon the veracity of another

witness."        Vandeweaghe,   supra,   351   N.J.    Super.      at     481-82

(internal citation omitted).3       This prohibition applies even if



3 We distinguish in this regard N.J.R.E. 608(a), which allows,
subject to certain conditions and exceptions, the credibility of
a witness to be attacked or supported by reputation or opinion
testimony relating to a witness's general character for
untruthfulness.    That Evidence Rule disallows proof of such
character traits to be proven by specific instances of conduct,
with limited exceptions not pertinent here.      In the present
case, Wal-Mart's expert neurologist repeatedly referred on
direct   examination   to specific   instances  of   conduct   by
plaintiff, which Rule 608 would not permit.        Moreover, the
present case involves the credibility of plaintiff in a narrower
sense relating to her account of the accident and her alleged
                                                      (continued)


                                    20                                  A-4137-14T3
the witness proffered to render such a credibility opinion is an

expert.        See,       e.g.,    State    v.    Henderson,      208    N.J.    208,   297

(2011); State v. Papasavvas, 163 N.J. 565, 613 (2000); Jamerson,

supra, 153 N.J. at 341.               "Experts may not offer such testimony

because 'credibility is an issue which is peculiarly within the

jury's ken and with respect to which ordinarily jurors require

no   expert     assistance.'"              Jamerson,     supra,    153     N.J.    at   341

(quoting J.Q., supra, 252 N.J. Super. at 39).                           See also Biunno,

Weissbard & Zegas, Current New Jersey Rules of Evidence, comment

1 on N.J.R.E. 702 (2016) (reiterating this principle and citing

additional cases applying it).

      Having     underscored         this    well-established           prohibition,     we

turn to the admissibility at a jury trial of expert opinion

about      a     testifying          plaintiff's         "malingering,"           "symptom

magnification," or other related concepts.                        The Fourth Edition

of the Diagnostic and Statistical Manual of Mental Disorders

("DSM-IV"),          a    major    authoritative         text     classifying      mental

disorders, defined "malingering" as "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,


(continued)
ensuing injuries, rather than                      her    general        character      for
truthfulness or untruthfulness.



                                             21                                   A-4137-14T3
evading    criminal    prosecution,           or    obtaining         drugs."          American

Psychiatric Association, Diagnostic and Statistical Manual of

Mental Disorders 683 (4th ed. 1994).                         See also Fitzgerald v.

Roberts,    Inc.,     186    N.J.      286,      299   n.6       (2006)      (quoting         this

definition from DSM-IV).4              The connotations of that term readily

can conjure up negative concepts of a person's intentionally

wrongful     conduct,        deceit,         greed,         evasion         of        duty,     or

criminality.    To brand a person a "malingerer" is essentially to

declare him or her a faker, a liar, a slacker, or a sloth.

     Although       there       is   no     clinical        definition           of    "symptom

magnification,"       that      term      essentially        conveys        the       notion    of

malingering,    perhaps         with      more     polite    or       scientific-sounding

phraseology.        "In     a    medical         context     .    .     .   words      such     as

'malingerer' and 'malingering' are not often seen in doctor's

reports."    Samuel D. Hodge and Nicole Marie Saitta, What Does It

Mean When a Physician Reports That a Patient Exhibits Waddell's

Signs?, 16 Mich. St. J. Med. & Law 143, 155 (Winter 2012).

"Instead,    physicians          utilize         phrases         such       as    '[p]ositive




4 Malingering was removed from the substantive portion of the
newest edition of the DSM, but remains as a diagnostic code.
See American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 850 (5th ed. 2013) (identified by the
authors as "DSM-5" rather than "DSM-V").




                                             22                                         A-4137-14T3
Waddell's signs,'5 'secondary gain,' 'factious disorder,' 'within

the patient's voluntary control,' 'motions voluntarily limited

to the patient,' and 'subjective symptoms and complaints out of

proportion   to   the   objective   signs'   to   indicate   malingering

behavior."   Ibid. (internal citation omitted).6

     To be sure, we acknowledge the phenomenon of malingering is

real.   Some claim it to be widespread, particularly for chronic

pain patients.    Id. at 154.   Whatever the actual prevalence rate

of malingering may be, we do not lose sight of the possibility


5 Waddell's signs refer to a series of tests developed by Gordon
Waddell and his research colleagues in 1980 to identify a group
of inappropriate responses to a doctor's physical examination.
Hodge, supra, 16 Mich. St. J. Med. & Law at 156 (citing Gordon
Waddell, et al., Nonorganic Physical Signs in Low-Back Pain, 5
Spine 117 (March/April 1980)).   The five signs, which were not
developed for litigation purposes, include: (1) tenderness
testing, (2) simulation testing, (3) distraction testing, (4)
regional disturbances, and (5) overreaction to stimuli. Id. at
157-58.   According to Waddell, it is clinically significant if
three or more of these signs are present.      Id. at 157.    As
Professor Hodge and his colleague note in their article, Waddell
signs are controversial and have been criticized by some as non-
reliable, although the tests have been admitted by some
tribunals, including worker's compensation agencies and the
Social Security Administration. Id. at 162-64.

6 The concept of "somatization," which was also a term used by
the defense neurologist in this case, has a related but arguably
less pejorative meaning.      As noted in Fitzgerald, supra,
somatization disorder has been defined as "a chronic condition
in which a person experiences numerous physical complaints that
implicate psychological problems rather than an underlying
physical problem."    186 N.J. at 298-99 n.5 (citing DSM-IV,
supra, at 446).     The term "somatization disorder" has been
replaced in DSM-5 with "somatic symptom and related disorders."
See DSM-5, supra, at 309-15.



                                    23                          A-4137-14T3
that    a    personal       injury     claimant       could      be   exaggerating          or

fabricating his or her reports of pain, weakness, and other

subjective symptoms.

       Indeed, we are by no means declaring here that opinion

testimony on malingering or related concepts from a qualified

professional         is     inadmissible           "junk       science"        or   per    se

unreliable.         See N.J.R.E. 702; Hisenaj v. Kuehner, 194 N.J. 6,

17 (2008).          Instead, we shall assume for the purposes of our

analysis that qualified expert opinion on malingering or cognate

concepts could have some probative value in evaluating whether a

personal injury plaintiff is telling the truth about his or her

claimed injuries.           Our concern here is on the capacity of such

expert testimony to usurp or unduly influence, as a practical

matter,      a    jury's    paramount       role    in     evaluating      a    plaintiff's

credibility.

       The       expert's       opinions    about    symptom       magnification          (and

equivalent technical-sounding medical terms) stamp an erudite

imprimatur         upon     a     defense    attack        on    plaintiff's        overall

credibility.          The same effect can occur reciprocally, as at

least one unpublished decision from our court has observed, when

a plaintiff presents a medical expert to opine that he or she

did    not       display        on   examination         any     indicia       of   symptom

magnification or malingering.                In either instance, laypersons on




                                             24                                     A-4137-14T3
juries might too readily accept the expert's gross assessment at

face value, despite their own critical independent role as the

ultimate judges of witness credibility.

       These concerns about the undue impact upon jurors of such

expert testimony about malingering were detailed at length in

the Eighth Circuit's influential opinion in Nichols, supra, 154

F.3d    at   882-84.         The    plaintiff       in   Nichols      sued    her     former

employer for sexual harassment and constructive discharge.                                  She

alleged      that    she    was    forced    to     resign    after     a    superior       had

sexually assaulted her and made degrading comments about her.

Id. at 878-80.             She claimed she suffered mental anguish, pain

and    suffering,      and    emotional       distress       due   to   her    employer's

conduct.      Id. at 880.

       The    defendant           employer    in      Nichols       presented         expert

testimony from a psychiatrist who had performed an interview and

evaluation of the plaintiff.                   Id. at 881.            The psychiatrist

concluded      that    the    plaintiff       had    a   personality         disorder       and

"undifferentiated somatoform disorder."                      Id. at 882.         Over the

plaintiff's objection, the expert opined to the jurors that the

plaintiff      had    "poor       psychiatric       credibility"        as    well     as    "a

tendency     to     blur    fantasy    with       reality."        Ibid.       The     expert

punctuated these negative opinions by telling the jury that the

plaintiff had "recall bias" and that her accounts of what had




                                             25                                      A-4137-14T3
occurred were affected by "secondary gain" and "malingering."

Ibid.      The expert defined "secondary gain" to the jurors as

signifying the possibility that the plaintiff's claimed symptoms

were motivated by financial gain, such as the prospect of being

awarded money damages in litigation.              Ibid.     The expert defined

"malingering" for the jury as "feigning or making up symptoms

for the purpose of secondary gain."           Ibid.

      On appeal, the majority opinion of the Eighth Circuit in

Nichols reversed the jury's verdict for the defendant employer.

The court specifically overturned the trial court's admission of

the     psychiatrist's   expert      opinions       about    the   plaintiff's

malingering and related perceived characteristics.                 Id. at 882-

84.     Among other things, the court applied the exclusionary

principles of F.R.E. 403, which authorize the court to disallow

relevant     evidence    if    its        claimed     probative        value    is

substantially outweighed by the risks of unfair prejudice, juror

confusion, or other countervailing concerns that may taint the

truth-finding    process.     Id.    at    883.     Cf.     N.J.R.E.    403    (the

synonymous New Jersey version of F.R.E. 403).

      The majority in Nichols observed that the defense expert

had opined on a credibility question "at the heart of the jury's

task[,]" specifically the issue of whether the plaintiff could

be believed.     Id. at 883.        "Opinions of this type," noted the




                                      26                                 A-4137-14T3
court, "create a serious danger of confusing or misleading the

jury."       Ibid.    (citing        F.R.E.    403).          The    testimony         about

malingering and the like had the improper capacity to cause the

jury "to substitute the expert's credibility assessment for its

own common sense determination."               Ibid.

       As the Nichols majority rightly noted, "[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."          Ibid.        (internal       citations         omitted).

"Because    '[e]xpert     evidence       can    be     both    powerful        and     quite

misleading,' a trial court must take special care to weigh the

risk   of   unfair     prejudice       under    the    probative         value      of    the

evidence under [Evidence Rule] 403."                  Id. at 884 (citing Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595, 113 S.

Ct. 2786, 2798, 125 L. Ed. 2d 469, 484 (1993)).                              Although the

defense     psychiatrist       was    presented       solely        as   a    witness      on

damages,     the     Nichols    majority        recognized          that      the    expert

testimony was likely to also affect the jury's assessment of

liability.      That was because the case as a whole "turned on

whose story the jury would believe – that of [the plaintiff] or

that of her supervisors[.]"            Ibid.7



7  The dissenting judge on the panel in Nichols found no
reversible error because, in his view, plaintiff's own medical
                                                   (continued)


                                          27                                        A-4137-14T3
          Several courts around the country have since applied these

principles from Nichols barring or restricting expert opinions

on malingering, symptom magnification, and similar concepts in

jury cases.          See, e.g., United States v. Benedict, 815 F.3d 377,

382 (8th Cir. 2016); Hale County A&M Transp., LLC v. City of

Kansas City, 998 F. Supp. 2d 838, 845 (W.D. Mo. 2014); Olson v.

Ford       Motor    Co.,    411    F.     Supp.       2d   1137,   1153   (D.N.D.      2006);

Figueroa v. Simplicity Plan de P.R., 267 F. Supp. 2d 161, 164-67

(D.P.R. 2003); Corrothers v. State, 148 So.3d 278, 327 (Miss.

2014).        Several unpublished opinions, which we will not cite

here, see Rule 1:36-3, have also favorably applied Nichols.                                  We

are       unaware    of    any    opinions,       published        or   unpublished,      that

repudiate Nichols, although judges in a few jury cases, without

citing       Nichols       as    contrary    authority,        have     permitted       expert

opinion about malingering, Waddell's signs, or similar concepts.

See, e.g., Rush v. Jostock, 710 N.W.2d 570, 575 (Minn. Ct. App.

2006); Lambert v. State, 126 P.3d 646, 651-52 (Okla. Crim. App.

2005).

          We endorse these principles from Nichols.                        We agree that,

in    a    jury     setting,      there     is    a    great   danger     that   an    expert



(continued)
expert opened up this line of testimony by the defense expert,
plaintiff did not preserve the issue for appeal, and any error
was harmless. Id. at 891-92 (Loken, J., dissenting).



                                                 28                                   A-4137-14T3
witness who characterizes a plaintiff as a "malingerer" or a

"symptom magnifier," or some other negative term impugning the

plaintiff's      believability             will    unfairly       infect      the     trier      of

fact's assessment of the plaintiff's overall narrative on both

liability     and       injury.       Such        opinion    evidence         from    a    doctor

inherently has a clear capacity to deprive a plaintiff of a fair

jury    trial.          R.   2:10-2.         Consequently,          we    hold       that     such

testimony     at    a        civil    jury        trial     should       be    categorically

disallowed under N.J.R.E. 403.8

       We   have    considered         whether        this        bright-line        principle

should be diluted to allow the presentation of expert opinion on

the    concept     of    symptom      magnification          in    certain      limited         and

exceptional civil jury cases.                 Having pondered that possibility,

we choose to reject it.               There are contexts in which a bright-

line principle of law best serves litigants and lawyers, and

fosters     predictability           and    uniformity.            See,    e.g.,      State      v.

Bernhardt, 245 N.J. Super. 210, 216 (App. Div. 1991); Zappala v.

Zappala, 222 N.J. Super. 169, 173 (App. Div. 1988); In re Will

of Ferree, 369 N.J. Super. 136, 153 n.21 (Ch. Div. 2003).                                     This

is such an instance.


8 We impose no equivalent restriction on such testimony from a
qualified expert in a non-jury trial, subject to case-specific
arguments for exclusion under N.J.R.E. 403.    See also Nichols,
supra, 154 F.3d at 883 n.6 (distinguishing decisions in non-jury
cases).



                                              29                                          A-4137-14T3
     We      discern    no    necessity       to   cloud    this    principle      of

exclusion with exceptions.            Defendants still have a variety of

means   to    attempt    to   impeach     a    plaintiff,     including     through

arguments and evidence of bias, inconsistent statements, faulty

perception or memory, contradiction, prior criminal convictions,

and other methods.9

     We      should    make   clear   that     this      prohibition   on    expert

opinion   testimony      about   malingering        or    symptom   magnification

does not disallow factual testimony by an examining physician,

conveying to a jury what the physician saw or heard a patient do

in the examination room.         For example, if a plaintiff claimed to

the doctor that she could not lift her right arm above her head

without excruciating pain, the doctor would be free to testify

that, to the contrary, the doctor observed the plaintiff raise

her arm to reach for her coat on the way out of the examination

room.     The jury would then have the task of evaluating the


9 For sake of completeness, we observe that even if our laws were
construed to allow expert opinion on symptom magnification and
related concepts to be presented to a jury to undermine a
patient's credibility, the expert retained by Wal-Mart in this
case lacked appropriate qualifications to render such opinions.
Despite his formidable and unchallenged credentials as a very
accomplished, board-certified neurologist, the expert was not a
psychiatrist, psychologist, or other mental health specialist.
Although he may have possessed sufficient experience and
training to assess the veracity of his own patients' subjective
complaints in his medical practice, he lacked the qualifications
to diagnose somatic disorder, malingering, or other conditions
at a level suitable for admission at a jury trial.



                                        30                                  A-4137-14T3
significance       of    those      observed       facts,   without   any   pejorative

labeling or credibility opinions from the defense expert.

      Nor     does    our    holding        preclude    a   qualified    expert     from

testifying, without using pejorative classification labels such

as "malingering" and "symptom magnification," that a plaintiff's

subjective complaints appear to be inconsistent with objective

medical test results or findings.                       See, e.g., DiProspero v.

Penn, 183 N.J. 477, 489 (2005) (requiring plaintiffs who are

subject to the lawsuit limitation option of N.J.S.A. 39:6A-8(a)

to support their claims of injury in auto negligence cases with

medical "objective clinical evidence").

      We are mindful that here, unlike the scenario in Nichols,

the   trial      court    issued     a   limiting      instruction      reminding   the

jurors of their exclusive role in assessing witness credibility.

We    do    not      believe      such      an     instruction    can    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.         See,

e.g., James v. Ruiz, 440 N.J. Super. 45, 76-77 (App. Div. 2015);

State v. Collier, 316 N.J. Super. 181, 197 (App. Div. 1998),

aff'd o.b., 162 N.J. 27 (1999).




                                              31                              A-4137-14T3
       The error in admitting the defense neurologist's opinions

on   symptom   magnification      in    this       case,      over   a    timely      and

strenuous objection by plaintiff, was not harmless.                        Cf. State

v. Macon, 57 N.J. 325, 333 (1971).                 The testimony was extensive

and emphatic.        Indeed, the expert stressed that he had reached

his opinions about plaintiff after a "very complicated process,"

and that they were reinforced by a "banker's box" of medical

records, which he claimed further showed plaintiff's tendency to

exaggerate her symptoms.

       This case was a pitched battle over whether anything that

plaintiff had to say about the accident should be believed at

all.    Her credibility was key because no eyewitnesses to the

accident testified.       Although defense counsel did not explicitly

refer   to   the   defense     neurologist         in   his    summation,       he    did

repeatedly argue that plaintiff was not a believable witness.

We lack confidence that the jurors ignored the defense expert's

testimony    about     plaintiff's     alleged        symptom     magnification         in

considering that advocacy.           We do not fault the trial judge in

this    setting    –   which   arose       in   the     absence      of   New    Jersey

precedent    directly    on    point   –     but    nonetheless       conclude       that

reversal is mandated.

       For these reasons, plaintiff is entitled to a new trial, at

which expert opinion testimony about her malingering, symptom




                                        32                                      A-4137-14T3
magnification, somatic disorder, and other similar conditions

and traits shall be disallowed.

         [At the discretion of the court, the
         published version of this opinion omits Part
         III, which addresses issues unrelated to the
         symptom magnification issue.   See R. 1:36-
         2.]

    Reversed and remanded for a new trial consistent with the

evidentiary restrictions set forth in this opinion.




                                  33                    A-4137-14T3
