Expert Evidence on PTSD as to Damages in Defamation Cases

From yesterday's decision by Chief Magistrate Judge Raymond E. Patricco (D. Idaho) in Scofield v. Guillard; note that compensatory damages in libel cases can generally extend not just to "impairment of reputation and standing in the community" but also to "personal humiliation[] and mental anguish and suffering":

This case arises out of the tragic murder of four University of Idaho students in November 2022. Plaintiff Rebecca Scofield is a professor at the University of Idaho. She alleges that, despite never meeting any of these students or being involved with their murders in any way, Defendant Ashley Guillard posted numerous TikTok (and later YouTube) videos falsely claiming that Plaintiff (i) had an extramarital, same-sex, romantic affair with one of the victims; and then (ii) ordered the four murders to prevent the affair from coming to light. [Guillard's claims were based on her supposed psychic powers. -EV]

Plaintiff sent cease-and-desist letters to Defendant in the following days and weeks. When Defendant did not stop, Plaintiff initiated this action….

The court granted summary judgment for plaintiff and held that she could recover punitive damages. A jury trial on damages is scheduled for late February, and the court allowed expert testimony from plaintiff's treating mental health counselor:

Ms. Bohn is a licensed mental health counselor with a Master of Arts degree in counseling psychology and more than three decades of experience providing psychotherapy and behavioral health treatment. She began treating Plaintiff in May 2023 and has met with her regularly since that time. Based on her training, clinical experience, and longitudinal treatment of Plaintiff, Ms. Bohn diagnosed Plaintiff with post-traumatic stress disorder ("PTSD") and opines that Plaintiff will require ongoing mental health treatment into the future.

Defendant argues that Ms. Bohn is not qualified to diagnose PTSD, that her opinions are unreliable because they allegedly depart from the DSM-5 diagnostic criteria, and that defamation cannot, as a matter of law or medicine, constitute a qualifying traumatic event. Defendant further contends that Ms. Bohn's opinions improperly attribute Plaintiff's psychological condition to Defendant's conduct and therefore should be excluded. The Court disagrees and concludes that Ms. Bohn is qualified to testify and that Defendant's challenges go to the weight of her testimony, not its admissibility.

Ms. Bohn's testimony is also relevant. The jury will be tasked with determining the extent of Plaintiff's damages, including emotional and psychological harm allegedly caused by Defendant's defamatory statements. Testimony regarding Plaintiff's mental health diagnosis, symptoms, treatment history, and prognosis may assist the jury in understanding the nature and scope of the claimed injury and in determining damages, if any. Accordingly, Ms. Bohn's testimony satisfies Rule 702's relevance requirement.

The Court additionally finds Ms. Bohn's testimony sufficiently reliable. As a psychotherapist, licensed mental health counselor, and behavior health educator, she is uniquely qualified to diagnose patients with mental impairments, including PTSD. Unlike an expert retained solely for litigation, Ms. Bohn's opinions are premised upon a course of treatment, repeated clinical evaluations, and an ongoing relationship with Plaintiff. Courts recognize that such medical care provides a reliable basis for diagnostic opinions. The Court is satisfied at this time that Ms. Bohn is qualified by education, licensure, and experience to diagnose PTSD and to opine regarding Plaintiff's need for continued treatment. In short, it appears that, professionally speaking, this is exactly what she does. Plaintiff is expected to confirm as much at trial.

Defendant's unsupported argument that defamation cannot constitute a traumatic triggering event sufficient to support a PTSD diagnosis is ultimately a dispute over diagnostic criteria and causation. Whether Plaintiff's experience satisfies the clinical requirements for PTSD are matters on which mental health professions may (or may not) disagree. Such disagreements are appropriately explored through cross-examination and, if Defendant chooses, competing expert testimony. They do not, however, render Ms. Bohn's opinions unreliable for purposes of Rule 702. This is because courts routinely allow expert testimony linking psychological conditions to tortious conduct, including defamation. See, e.g., Stevens v. Lee, 2024 WL 729960, at (D. Idaho 2024) ("[W]ith respect to his defamation claim, Stevens may be able to establish – through an expert witness or treatment provider – that the purported diminishment in his congregation caused him to suffer compensable emotional distress."). At bottom, Daubert does not require unanimity within a field; nor does it permit the Court to resolve medical disputes that are properly left to the jury.

{Separately, courts often limit treating providers from opining on causation where such opinions were not formed during the course of treatment. See Sepe v. Gordon Trucking, Inc., 755 Fed. Appx. 668, 670 (9th Cir. 2019) ("Causation testimony by a treating physician is expert opinion, subject to the disclosure and written report requirement detailed in Rule 26(a)(2) if the physician's opinion on causation was formed outside the course of treatment."). But PTSD is an event-linked diagnosis. Thus, in diagnosing PTSD during the course of treatment, a clinician necessarily forms an opinion that a particular stressor produced the condition. Where, as here, the treating provider concludes that defamatory conduct constituted the stressor giving rise to the diagnosis, testimony linking the PTSD to that conduct arises directly from the diagnosis itself and does not exceed the permissible scope of treating physician testimony.}

Accordingly, the Court finds that Ms. Bohn is qualified to testify and that her opinions are based on a sufficiently reliable foundation. Defendant's challenges to her conclusions and to the causal link between Defendant's conduct and Plaintiff's PTSD may be fully addressed through cross-examination and argument at trial, but they do not warrant exclusion of her testimony now. Defendant's Motion to Exclude is therefore denied in this respect.

Comments

[John F. Carr]

Looks like the eggshell skull principle applies to what's inside the skull too.

[SRG2]

BTW when I was studying law eons ago, the great expert on legal causation, Prof Honoré, gave a talk to our college law society. During questions afterwards, someone asked him, isn't it unfair that someone might end up convicted of murder just because his victim had a thin skull? And his response was a shrug of his shoulders and saying, well, that's life.

[ReaderY]

This case has long struck me as worthy of a textbook for its illustration of the consequences of strong actual malice. A psychic who investigates solely by psychic intuition strikes me as about as perfect example as one could find of a person who unquestionably could not have discovered any information contradicting her opinion, and who therefore unquestionably acted completely without actual malice. It seems to me that if Sullivan means what many lower courts have said it means, if this professor had been deemed a public figure the case would have had to be dismissed.

Only if there is some affirmative duty to investigate (in a conventional sense), however slight, could a psychic ever be held liable for libel. Otherwise, it strikes me that if one wants to limit liability risk, when it comes to reporting on public figures psychics are the best reporters one could possibly have.

If one investigates in the sense of attempting to discern conventional facts, there is always a possibility one might botch ones investigation. But if one simply never investigates, one is completely insulated from uncovering facts contradicting ones thesis. It’s far safer. And since the law presumably favors the conduct it incents, it is the path specially favored and blessed by our Constitution itself.