Testimony About the Plaintiff in Personal Injury Cases

In personal injury cases involving sexual abuse, there may be admission of the abuse but dispute over the degree to which the abuse damaged the plaintiff. There may be dispute over whether the abuse occurred. There may be acknowledgment of the abuse but dispute as to its intrusiveness and extent. Therefore, the plaintiff's psychologist or psychiatrist should have addressed the following in the evaluation:
 

1. What are the personality characteristics and current psychological functioning of the plaintiff?
2. What is the probable cause of any emotional problems?
3. What is the probability that the alleged event occurred as claimed?
4. What are alternative explanations for the statements being made by the plaintiff?
5. (In recovered memory cases with adults) When did the plaintiff realize he or she had been sexually abused? (This goes to the statute of limitations.)

The major error we see in plaintiffs' experts is the assumption that sexual abuse inevitably causes alleged victims severe and long-lasting psychological problems. Children who may have been only fondled are diagnosed as having PTSD and needing years of therapy.

Not all victims of childhood abuse show later adjustment problems. Finkelhor (1990) reports, "Almost every study of the impact of sexual abuse has found a substantial group of victims with little or no symptomatology." (p. 327) Parker and Parker (1991) observe, "It is far from clear if the abusive experience itself plays a significant causal role in subsequent maladjustment." (p. 185) Berliner and Conte (1993) state, "Although common psychological characteristics may be present in many cases, there is no evidence for the assertion they are contained in all or even the majority of true cases of child sexual abuse." (p. 116)

All medical records and school records should be carefully reviewed. School records may contain information about behavior problems, health, or referrals for counseling in addition to grades. This will help determine what problems may have predated the abuse incidents. With adults, there may be an MMPI or other evaluation records prior to the date the abuse was said to have occurred. In one repressed memory case, the young man claimed he began gaining significant weight in fifth grade, the year the alleged abuse took place, and that he then changed from a happy, normal boy into a fat and unhappy child who was miserable through the rest of school. However his medical and school records had weights noted at different ages so we were able to chart his weight from early childhood through high school and disprove his claim of a sudden weight gain in fifth grade.

A direct causal relationship between the behaviors of the defendant and the plaintiff's current problems is extremely difficult to establish. Although some victims of childhood sexual abuse are reported to have a number of symptoms, including depression, anxiety, low self-esteem, distrust, social isolation, sexual dysfunction, eating disorders, and difficulties in close interpersonal relationships, these problems are not specific to a history of sexual abuse. The base rates for these behaviors associated with other causal chains are higher than for any demonstrated link with sexual abuse. The behaviors frequently offered as behavioral indicators of sexual abuse are instead nonspecific stress responses which can be linked to any number of stressor experiences. Beitchman et al. (1991), in a review of the short-term effects of child sexual abuse, conclude that, with the exception of sexualized behavior, the majority of short-term effects noted in the literature are problems that characterize child clinical samples in general. Two recent review articles on the long-term effects come to similar conclusions. Beitchman et al. (1992) and Pope and Hudson (1992) report that empirical research has yet to establish a relationship between sexual abuse and the disorders frequently claimed to be caused by childhood sexual abuse.

The characteristics of actual sexual abuse generally associated with more negative outcomes must be considered. There appears to be greater trauma if the perpetrator is a father or stepfather, if coercion, force, or violence are present, and if the abuse consists of more physically assaultive, intrusive acts (Beitchman et a]., 1991, 1992; Finkelhor and Browne, 1986; Finkelhor, 1990).

An important factor associated with the effects of sexual abuse is family dysfunction. Although few of the studies on the effects of abuse have controlled for the contribution of family characteristics, those that have establish that it is extremely difficult to separate the effects of abuse from the effects of the accompanying family dysfunctions. This is because both extrafamilial and intrafamilial sexual abuse are closely associated with families that are dysfunctional and pathological (Alexander and Lupfer, 1987; Beitchman et al., 1991; Harter et al., 1988; Hoagwood and Stewart, 1989; Hulsey et al., 1989).

For example, Hulsey et al. (1989) found that, although women with a history of childhood abuse display greater pathology on the MMPI than do nonabused women, when childhood family variables (such as families that are chaotic, conflicted, and enmeshed) are considered, these differences are greatly reduced or eliminated. Therefore the pathology observed in an adult who was sexually abused as a child may be a function of a pathological home environment rather than an effect of the sexual abuse. Harter et al. (1988) report that family characteristics and perception of social isolation were more predictive of social maladjustment than abuse per se. When family characteristics were controlled, the presence of abuse was not related to social adjustment. Therefore, family characteristics must be carefully explored and considered.

Another factor to be considered is the the fact that many personality characteristics appear to have a high heritability (Lykken et al., 1992; Tesser, 1993). The University of Minnesota twin studies have produced powerful evidence that personality factors are strongly affected by genes. This must be considered when forming conclusions concerning the cause of an individual's emotional problems.

It is unlikely that all of a plaintiff's emotional problems and global dysfunctions will have any single cause. To claim a direct, specific and singular cause for anything human beings do goes far beyond any evidence in the science of psychology (Einhorn and Hogarth, 1982; Faust, 1989; Gambrill, 1990; Meehl, 1977)

In an example, the plaintiff, a withdrawn, inhibited, and depressed man in an unsatisfactory marriage, sued the minister of the church the family had attended when he was an adolescent. He described three incidents of abuse. The first occurred in the minister's car, when the boy was 13 or 14 years old. The minister put his hand on the boy's thigh and asked him if he were circumcised. The minister rubbed the boy's leg but there was no attempt to touch his genital area. In the second incident the minister again rubbed his leg but did not touch his genital area. He does not recall what they talked about but remembers feeling scared, selfconscious, and embarrassed. In the third incident, which occurred in a summer church camp, the minister brought the boy into an empty cabin, touched the boy's genital area over his clothing and asked him if he ever touched himself or played with himself. The plaintiff recalled being scared and upset over the experience, which he described as "strange."

After these incidents, the man kept in contact with the minister, whom he described as being generally helpful and reinforcing, despite these three incidents, since he was a shy boy with little self-confidence. He did not attribute his current problems to this relationship until he heard about this minister being sued, decided to sue also, and was told by the mental health professionals his attorney referred him to that the abuse was the cause of his problems.

The plaintiff's psychologist concluded that "it is inescapable and unequivocal that (the minister's) actions have had a pervasive, traumatic, and long-term impact on (the plaintiff)" and that the plaintiff's current distress was "an almost direct result of (the minister's) actions." He diagnosed the man as having Post-Traumatic Stress Disorder.

There is no empirical support on the effects of child sexual abuse for such a conclusion. To claim that the abuse was responsible for all of the plaintiff's current problems goes far beyond what can be responsibly asserted. The PTSD diagnosis is completely inappropriate. Neither the events described by the plaintiff, his reactions at the time, nor his current symptoms fit this diagnosis. The man's history contained many other troublesome factors, including a mean and cruel alcoholic father, his parents' divorce, a stern stepfather with whom he had a conflicted relationship, small stature and late maturity, and school difficulties that predated the abuse. But the psychologist claimed that all the plaintiff's troubles were caused by the abuse. Unfortunately, this is not an unusual example.

Here, the man had serious psychological problems and there was no evidence in the testing of malingering. But we have evaluated several plaintiffs where there has been strong evidence of significant malingering. As is discussed elsewhere in this book, malingering cannot be successfully detected in clinical interviews, but some objective tests, especially the F minus K index on the MMPI-2, give useful information. The California Psychological Inventory also detects profiles that are invalid due to a fake-bad response set and the Millon Clinical Multiaxial Inventory-II also indicates when responses are exaggerated. The actual profiles for these tests should be examined when cross-examining the evaluating psychologist.