April 24, 2019 Feature

Post-Traumatic Stress Disorder: Proving and Defending Claims

By Justin T. Green, David J. Harrington, Ricardo Martinez-Cid, and Tracey E. Campbell

Post-traumatic stress disorder (PTSD) is an abnormal mental injury suffered by someone who experienced a traumatic event—one that is outside the range of typical human experience. The more extreme the threat and shock caused by the traumatic event, the more likely it is that PTSD will result.1 Untreated or inadequately treated PTSD can have devastating, far-reaching consequences for a victim’s functioning. It may damage relationships among families and friends and impair the victim’s capacity to enjoy life.

In terms of PTSD-related lawsuits, there are special considerations for both plaintiffs attorneys and defense attorneys. This article offers practice pointers for attorneys on both sides of a claim, provides information about expert witnesses in such cases, and presents examples of outcomes in cases involving PTSD.

PTSD: The Basics

Post-traumatic stress disorder (PTSD) is a serious disorder that develops in some people exposed to a shocking event. Not everyone so exposed will develop PTSD, but many will suffer some adverse emotional reaction.

The death of a loved one, the loss of a job, and the breakup of a marriage can cause extreme emotions but generally are not PTSD-trigger events. Rather, doctors diagnose PTSD only after victims experience a traumatic event that involved the risk of death or serious bodily injury either to themselves or to others and when the event causes the victims to suffer intense fear, helplessness, or horror. Only about 7.8 percent of the population will develop PTSD during their lifetime.2

The fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) describes PTSD as an anxiety disorder, the severity of which can range from mild or acute with a short duration to a chronic and long-lasting disability.3 The DSM5 defines chronic as lasting more than three months.4

A PTSD diagnosis requires the following: a traumatic event, flashbacks, avoidance, arousal and reactivity symptoms, and cognition and mood symptoms.

A traumatic event. The DSM-5 requires that the victim directly experienced a traumatic event, witnessed in person (not on TV!) an event that happened to someone else, learned about the violent or unexpected death of a friend or family member, or experienced repeated exposure to aversive details of traumatic events.5

The evidence in a case involving claims of PTSD must demonstrate that the victim experienced an event that threatened death or serious injury. This can be a disputed issue depending on the severity of the traumatic event and the particular victim’s exposure during the event and in its aftermath. The focus must be on the individual’s personal experience because people exposed to the same event may have very different experiences. For example, in the crash landing of an airplane, the passengers in one section may be exposed to far greater trauma (e.g., fire, death of other passengers, etc.) than passengers in another section.

The testimony of the victim and other witnesses to the traumatic event is important evidence. Videos and photos are also key. A plaintiff will want to show videos to demonstrate the horror of the event. Photos of the event’s aftermath likewise demonstrate the danger that an event posed to the plaintiff. These postevent photographs may be misleading, however, because fire-control procedures or the rescue efforts of first responders may render the scene shown in the postevent photos to be much different than what the plaintiff saw and experienced.

Photos and videos also may be important to the defense of a PTSD claim. Most people have phones with cameras, but it may be difficult for a jury to accept that the plaintiff experienced significant stress during the event if the plaintiff was taking video or photographs during the event or shortly after the event. A selfie taken by a plaintiff may become the defense’s Exhibit No. 1!

Similarly, other evidence can be a windfall for the defense. Interviews with the media and social media postings may reveal whether the event was truly traumatic to the plaintiff. The texts and emails that the victim sent immediately after the event also may be evidence that will help or hinder a PTSD claim.

Flashbacks. The victim must have at least one reexperiencing symptom, such as flashbacks, bad dreams, or frightening thoughts about the traumatic event. The victim is the primary source of evidence on these symptoms; however, it is important to test if there is corroborating evidence, most importantly whether the witness has reported the symptoms to a treating physician or to others.

Avoidance. At least one avoidance symptom—such as avoiding places, things, or events that remind the victim of the traumatic event—must be evident. The victim’s testimony on these issues should be specific. In today’s age, we all leave a digital footprint with our activities. Credit card statements may show that the victim continued an active lifestyle, with air travel and other activities that may appear inconsistent with PTSD. Photos and comments posted to social media may show activities inconsistent with the plaintiff’s claims. Defense counsel may find it appropriate to hire a private investigator to take surveillance videos of the plaintiff to impeach the plaintiff’s testimony.

Arousal and reactivity symptoms. At least two trauma-related arousal and reactivity symptoms—such as being easily startled or “on edge,” having difficulty sleeping, or having angry outbursts—must be evident. These symptoms can negatively affect the quality of the victim’s life and the victim’s relationships with family and friends. The testimony of the victim and the victim’s family is important. Objective evidence like employment reviews that for the first time indicate problems with the victim’s behavior or relationships with colleagues can be powerful evidence as well.

Cognition and mood symptoms. At least two cognition and mood symptoms must be evident. These include difficulty remembering features of the traumatic event, negative thoughts, distorted feelings like survivor’s guilt, or feeling blame and a loss of enjoyment in pleasurable activities. Medical evidence is most important; psychological testing may help establish PTSD.

Plaintiffs’ Practice Pointers

For plaintiffs lawyers, the following are pertinent practice pointers:

☛ Barring a truly horrific event and strong medical evidence, approach every PTSD case knowing that defendants, their lawyers, and their insurers will be skeptical of the PTSD claims. Prepare the case expecting that jurors will share this skepticism.

☛ Prepare the case expecting a Daubert challenge of your expert. To prove PTSD, a plaintiff must have proper expert testimony. Jurors will want to hear from a treating psychiatrist or psychologist and to see that the victim has undergone a significant course of treatment. An opinion from a specially retained expert is often not as convincing as the opinion from a treating physician. The qualifications of the treating physician or mental health professional to diagnose PTSD are crucial to admissibility.

☛ Many legitimately injured plaintiffs will not seek proper mental health treatment or may seek treatment from individuals who are not qualified to diagnose PTSD. A treating mental health professional may write PTSD in the medical records without going through the proper methodology that would result in a reliable diagnosis. You need to make sure that the professional is competent to diagnose PTSD, that the professional has actually diagnosed PTSD rather than just noting it in the records, and that the diagnosis was made only after the doctor conducted a proper analysis of the plaintiff’s condition. Doctors and mental health professionals are concerned about their patients’ health, not about evidentiary rulings, and a plaintiffs lawyer must identify and correct potential problems concerning the admissibility of the experts’ opinions.

☛ Often, when a victim sees a mental health professional right after an accident, it is in part because the professional already has been treating the victim for unrelated mental health reasons. In presenting the PTSD claim, it is important to put the preexisting issues in a separate box and show that they are not the same as the postaccident trauma. If possible, a plaintiffs lawyer should try to turn the preexisting condition to the client’s advantage by demonstrating that it made the client more susceptible to PTSD (the “eggshell skull” approach).

☛ There is often a gap between the date of the accident and the date when the plaintiff first seeks treatment. Defense counsel will seize on this gap to argue that the plaintiff has manufactured the PTSD claim. Favorite defense questions for a victim include “Was the first time that you sought mental health treatment after you met with your lawyer?” and “Did your lawyer recommend the mental health professional who diagnosed you as suffering from PTSD?” A plaintiffs lawyer should rebut these insinuations by focusing on the science, which demonstrates that PTSD frequently does not develop overnight and recognizes that the onset is often delayed. Another approach is to highlight that the plaintiff never sought mental health treatment prior to the accident and initially resisted seeking treatment, hoping that the symptoms would go away on their own. The facts may show that the severity of the PTSD symptoms finally drove the victim to seek help.

☛ Beware of your client coming off as a whiner, particularly where the facts of the traumatic event are not truly horrific. Support the plaintiff’s testimony with proof of objective facts that demonstrate the severity of the PTSD. The obvious ones include whether the victim can no longer engage in certain activities, such as flying and going to events with large crowds (like sports games); whether the victim’s work has suffered; or whether, for the first time in the victim’s life, the victim must rely on sleep medication to get through the night.

☛ Address PTSD individually in each claim. In a case where you may represent many victims from the same traumatic event, do not take a cookie-cutter approach. If the same doctor diagnoses each of your clients with PTSD in reports that are remarkably similar, the doctor’s opinion will not help in settlement, and the jury may reject the opinions.

☛ Ensure that you are familiar with the law in your jurisdiction as it applies to recovery for PTSD claims. The courts vary in how they analyze these claims.

☛ When pleading your client’s claims, it is important to allege that the client suffered a physical injury and physical manifestations of injury. There is support in the medical literature that PTSD causes changes to the brain, which may be important to support the claim where the law requires a physical injury in order to recover and to convince the jury that PTSD is a “real” injury.

☛ PTSD is a serious ailment, and a plaintiffs lawyer must take the burden of proving PTSD seriously. Do not present a PTSD case unless the facts support it. Doing so risks the plaintiff’s credibility. It is better to present evidence of the lesser mental injury that your client actually suffered than to lose credibility by fabricating a PTSD claim.

Defense/Insurance Practice Pointers

For defense lawyers and insurers, the following are pertinent practice pointers:

☛ The term PTSD is often used by plaintiffs, plaintiffs counsel, treating physicians, and counselors in a very informal and unscientific manner. While most people think they have some idea of what PTSD is, very few people, including treating physicians and counselors, know and properly utilize the DSM-5 diagnostic criteria when making a PTSD diagnosis. Defense counsel must be intimately familiar with the DSM-5 PTSD diagnostic criteria and diagnostic features.6

☛ Defense counsel must acknowledge that PTSD is a complicated diagnosis and that clinical presentation of PTSD varies among individuals, including individuals who have experienced the same traumatic event.

☛ Defense counsel and insurers must be careful not to underestimate or discount a claim of PTSD during the early stages of litigation.

☛ A proper and effective defense to a PTSD claim requires extensive discovery, including collection of all health-care provider records, employment records, emails, journals, diaries, statements, and social media, as well as depositions of health-care providers, the claimant, friends, family members, employers, and coworkers. These sources may provide valuable information regarding diagnostic criteria, social and relationship impairment/functioning, and mental and emotional impairment/functioning.

☛ For every health-care provider who diagnosed the claimant with PTSD, carefully examine on what basis the diagnosis was made; whether generally accepted diagnosis criteria (like the DSM-5) and tools were utilized; and what references, literature, or other sources were used to support the diagnosis. This evaluation is critical in determining the relative strength or weakness of the PTSD claim and should be used to evaluate litigation and/or early resolution strategies. Overall, juries tend to put more stock in treating health-care providers than in experts; therefore, the ability to disprove or mitigate a treating health-care provider’s diagnosis of PTSD can be devastating to a plaintiff’s claim. Moving to exclude a health-care professional’s PTSD diagnosis on the basis that it is not properly supported can be very effective in defeating the plaintiff’s claim and often can result in a very favorable settlement.

☛ Although this may seem obvious, make sure that you retain a PTSD expert who is intimately familiar with the DSM-5 PTSD diagnosis criteria and who utilizes recognized and accepted tools (i.e., MMPI, BAI-PC, SPRINT, etc.) to assist in diagnosing PTSD. The expert must be able to commit the time and resources needed to meticulously review and evaluate what likely will be a substantial amount of medical records and deposition testimony.

☛ Ensure that your PTSD expert performs a differential diagnosis that, at a minimum, considers malingering7 and factitious disorder.8

☛ Think carefully before introducing social media evidence to the jury to defend a PTSD claim. Some jury members find this off-putting, and a well-prepared witness and skilled trial counsel can easily turn around seemingly adverse social media posts to their advantage.

Expert Testimony and the PTSD Diagnosis

Parties often use expert testimony to prove PTSD. The expert must focus on the diagnosis criteria for PTSD described above. Courts often must rule on the admissibility of expert testimony regarding PTSD on both qualifications and methodology grounds.

Qualifications. The expert on PTSD must be qualified to offer an opinion that the victim suffers from PTSD and that the specific incident in question caused the PTSD.9

People seek mental health treatment from a variety of sources, including psychiatrists, psychologists, neuropsychologists, clinical social workers, and general practitioners. Victims may even seek counseling from pastors or rabbis, who may provide fine pastoral care but who are not competent to diagnose PTSD.

The plaintiff has the burden of proof that the plaintiff suffers from PTSD caused by the incident, and it is incumbent on the plaintiff’s lawyer to ensure that the client has received a PTSD diagnosis from someone who is qualified. This may require specially retaining an expert with PTSD expertise in the event that the court rejects the opinion of the treating doctor or mental health professional.

Methodology. Courts have not established a specific required methodology for a doctor to diagnose PTSD but do expect some sort of methodology.

Doctors often order patients to undergo neuropsychological testing when they suspect PTSD. Doctors may send their patients for other testing, such as CT scans. The fact that a treating physician did not order neuropsychological testing or other testing is fodder for cross-examination but may not be grounds for excluding the proffered testimony.

Courts have found that an expert’s methodology is valid where, in addition to in-person examination of the plaintiff, the expert took a detailed history; administered psychological testing; and reviewed medical and psychological records and other records, such as the plaintiff’s employment records.10

The problem is when there is really no methodology. The court may find that a doctor’s opinion based on one short examination of a plaintiff is unsupported and therefore inadmissible.

Damages for PTSD

The awards for pain and suffering associated with PTSD vary because of the factors that the court will consider—that is, the severity of the traumatic event resulting in the PTSD and the significance and permanence of the impact on the individual victim. Defense verdicts on the latter element of damages are frequent. The awards, however, can be significant if supported by the facts. Some examples follow.

Clare v. PHI, Inc. In this case, the plaintiff, who was a passenger in a helicopter that experienced a compressor stall and was ditched in the ocean, was awarded $400,000 for his psychological claims, including his severe PTSD.11

DeMary and Forcht. DeMary v. United States and Forcht v. United States involved the crash of USAir Flight 1016 on July 2, 1994, near the Charlotte Douglas International Airport. Both DeMary and Forcht were flight attendants on board Flight 1016. DeMary suffered some physical injuries that healed within four months; Forcht’s physical injuries were more severe but ultimately healed, leaving some permanent scarring. The most severe injury suffered by both plaintiffs, though, was PTSD. However, both plaintiffs were able to go back to school, develop relationships culminating in marriage, and achieve normal life goals while struggling with their respective symptoms. The court awarded one victim $300,000 and the second victim $550,000 for emotional suffering.12

Spielberg v. American Airlines, Inc. In Spielberg, the 13 plaintiffs were on board American Airlines Flight 58 on June 25, 1995, when the aircraft experienced severe turbulence. For this turbulence encounter lasting a mere 28 seconds, the court awarded the 13 plaintiffs $2,225,000 for fear of dying; no plaintiff received less than $150,000. The court did grant the defendant’s motion for remittitur with respect to one plaintiff who was two years old at the time because the evidence did not support the award for past emotional distress.13

Bryand v. Robb. The plaintiff in this case suffered PTSD because of a motor vehicle accident in which she was a passenger. A Cook County jury awarded the plaintiff $1,080,000.14

Carter v. Hudson. A 61-year-old bus driver was awarded $600,413 for pain and suffering stemming from PTSD and some bruising of her hip and lumbar region. The PTSD developed following a motor vehicle accident.15

Young v. Young. Young featured a $1,004,000 award for PTSD suffered by a spouse harassed by her former spouse.16

Caletz v. Blackmon. The parents in this case were awarded emotional distress damages in the amounts of $3.5 million and $1.4 million for the trauma they endured when the minivan they were driving, with their children as passengers, was involved in a multivehicle accident. The parents suffered only minor physical injuries; but one of the children died in the accident, and their other two children suffered physical injuries.17

Clehm v. BAE Systems Ordnance Systems, Inc. Clehm involved a plaintiff who was sexually assaulted by her supervisor on two occasions in 2014. Following the events, the plaintiff suffered from various PTSD-related symptoms, including depression, anxiety, and panic attacks; and she struggled with fear, intrusive thoughts, and difficulty sleeping. The jury returned a verdict for the plaintiff, awarding $500,000 in compensatory damages and an additional $250,000 in punitive damages.18

Doe v. Sharma. The plaintiff testified that as a result of medical malpractice and sexual assault, she experienced symptoms of PTSD and depression, night terrors, incontinence, and flashbacks. The plaintiff’s expert testified that the PTSD was particularly impactful due to certain disabilities experienced by the plaintiff and further explained that the plaintiff would likely deal with the physical and psychiatric effects of this event for the rest of her life. The jury awarded the plaintiff in this case $1 million for past and future pain and suffering.19

Cardoza v. City of New York. In this case, a plaintiff was diagnosed with PTSD and a major depressive disorder following the use of excessive force by police during an arrest. The jury awarded the plaintiff $500,000 for past pain and suffering and $2 million for future pain and suffering, intended to provide compensation for a period of 15 years. The court granted the defendant’s motion for remittitur, though, and the eventual award for the plaintiff was $400,000 for past pain and suffering and $1.25 million for future pain and suffering.20

Conclusion

PTSD claims are paradoxically not only more difficult to prove but also more difficult to disprove than physical injury claims because they rely so much on the plaintiffs’ testimony. An X-ray will show whether a plaintiff suffered a broken leg, but there is no test that will incontrovertibly confirm whether or not a plaintiff suffers from PTSD.

This makes PTSD claims more challenging for lawyers and, unlike with many other injuries, makes whether the plaintiff suffers from PTSD a question of fact for the jury. Thus, lawyers need to focus on the objective evidence and ensure that the opinions of their PTSD experts are properly supported in order to avoid unfortunate outcomes during trial. 

Notes

1. Rachel Yehuda, Clinical Relevance of Biologic Findings in PTSD, 73(2) Psychiatric Q. 127 (Summer 2002).

2. R. C. Kessler et al., Post-Traumatic Stress Disorder in the National Comorbidity Survey, 52(12) Archives Gen. Psychiatry 1048–60 (1996).

3. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 401 (5th ed. 2013).

4. Id. at 418.

5. Id. at 393.

6. Id. at 309.81.

7. Id. at V65.2.

8. Id. at 300.19.

9. See Lee v. Nat’l R.R. Passenger Corp., No. 3:10-cv-392-CWR-LRA, 2012 WL 92363 (S.D. Miss. Jan. 11, 2012) (clinical social worker with no clinical experience and limited education regarding PTSD was found not qualified to diagnose PTSD).

10. See, e.g., Foreman v. Am. Road Lines, Inc., 623 F. Supp. 2d 1327, 1332 (S.D. Ala. 2008).

11. 33 F. Supp. 3d 700 (E.D. 2014).

12. DeMary v. United States, 982 F. Supp. 1101 (D.S.C. 1997); Forcht v. United States, 982 F. Supp. 1115, 1122 (D.S.C. 1997).

13. 105 F. Supp. 2d 280 (S.D.N.Y. 2000).

14. 97 L 15025, 1999 WL 1455387 (Ill. Unknown State Ct. 1999).

15. 97-L-69, 2001 WL 34056670 (Ill. Unknown State Ct. 2001).

16. 98 L 152, 1999 WL 34866657 (1999) (Ill. Unknown State Ct. 1999).

17. 476 F. Supp. 2d 946 (N.D. Ill. 2007).

18. No. 7:16-CV-00012, 2018 WL 6594612, at *1 (W.D. Va. Dec. 14, 2018).

19. 89 N.Y.S.3d 548, 550 (N.Y. Sup. Ct. 2018).

20. 139 A.D.3d 151, 168, 29 N.Y.S.3d 330, 343 (N.Y. App. Div. 2016).

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By Justin T. Green, David J. Harrington, Ricardo Martinez-Cid, and Tracey E. Campbell

Justin T. Green is a partner with Kreindler & Kreindler LLP in the firm’s New York City office, where his practice focuses on complex aviation litigation on behalf of plaintiffs. He may be reached at jgreen@kreindler.com. David J. Harrington is a partner with Condon & Forsyth LLP in the firm’s New York City office, where he specializes in aviation accident investigation and litigation, aviation/aerospace product liability, mass tort defense, and corporate aircraft transactions. He may be reached at dharrington@condonlaw.com. Ricardo Martinez-Cid is a partner at Podhurst Orseck, P.A., in Miami, Florida, where his practice involves personal injury, wrongful death, and product liability cases with a focus on mass torts and aviation litigation. He may be reached at rmartinez-cid@podhurst.com. Tracey E. Campbell is a senior vice president and airline practice leader at Global Aerospace, Inc., in Parsippany, New Jersey. She may be reached at tcampbell@global-aero.com. This article is the collaborative effort of authors who hold different opinions on the subject matter, and it would be incorrect to attribute any part of the article to a particular author. It is for educational purposes only.