Psychol. Inj. and Law
DOI 10.1007/s12207-013-9153-z
Psychological Injuries and Legal Decision Making in Civil
Cases: What We Know and What We Do not Know
Jonathan P. Vallano
Received: 12 October 2012 / Accepted: 17 April 2013
# Springer Science+Business Media New York 2013
Abstract Civil plaintiffs frequently seek monetary compensation for their psychological injuries. Despite the increased
study of psychological injury within the legal system, there
has been little empirical examination of how psychological
injury evidence impacts legal decisions. To illuminate what
is known (and not known) on this topic, this paper reviews
legal and empirical research regarding how legal decision
makers (judges and jurors) perceive and use psychological
injury evidence to render civil judgments. A few themes
emerged from this review: (1) Courts generally devalue
psychological injury, often making it difficult for plaintiffs
to pursue and succeed on these claims; (2) these difficulties
are a likely byproduct of legal decision-makers’ misperceptions of mental illness; and (3) despite a recent surge in
empirical research on how jurors perceive and use psychological injury evidence to render civil decisions, many unexplored areas remain. Specific recommendations for legal
policy and suggestions for future research are highlighted
throughout this review.
Keywords Psychological injury . Mental health .
Negligence . Civil law . Juror decision making
Introduction
Civil plaintiffs routinely seek redress for their psychological
injuries. Within a legal setting, psychological injury has
been defined as “mental harm, suffering, or injury caused
Author Note Jonathan P. Vallano is an Assistant Professor of
Psychology at the University of Pittsburgh at Greensburg.
J. P. Vallano (*)
University of Pittsburgh at Greensburg, 150 Finoli Drive,
Greensburg, PA 15601, USA
e-mail: jov15@pitt.edu
to a person that may be a worsening of a pre-existing
condition and that negatively impacts functional activity…
leading to claims in court for damages” (Young, 2008,
p. 78). The impact of psychological injury is far from trivial,
both on society and its victims. Regarding the impact on
society, Avraham (2006) estimated that 50 % of civil jury
awards involve pain and suffering. Regarding the impact on
its victims, tortious conduct can produce mild, “gardenvariety” psychological symptoms (e.g., embarrassment and
humiliation; Kovera & Cass, 2002) or, in many cases, severe
psychological disorders (e.g., anxiety and depressive disorders; Kane & Dvoskin, 2011). Civil plaintiffs most commonly
seek recovery for these injuries when they are concomitant
with their physical injuries and less commonly in civil cases
that primarily result in psychological injury (e.g., intentional
infliction of emotional distress, loss of consortium, sexual
harassment; Poser, Bornstein & McGorty, 2003).
Clinical and forensic psychologists have long assessed
the legitimacy and impact of psychological injuries on civil
plaintiffs (Foote & Goodman-Delahunty, 2005; Prins,
Verhaak, Bensing, & van der Meer, 2008). As a result,
mental health professionals often provide expert testimony
regarding the nature, severity, and impact of psychological
injuries, if any, on the plaintiff’s overall functioning
(Greenberg & Wheeler, 2004). But how are these subjective
psychological injuries treated and perceived by legal decision makers (attorneys, judges, and jurors), particularly
when compared to the more objective physical injuries?
How do these perceptions affect legal decisions?
Surprisingly little attention has been given to these issues
(see O’Donohue & Bowers, 2006). This article will provide
an overview of the relevant legal and empirical research
about what we know (and do not know) regarding how legal
decision makers perceive and use psychological injury evidence in civil cases. This article will also highlight debated
topics and provide suggestions for research to advance our
Psychol. Inj. and Law
understanding of how psychological injury evidence is used
in the courtroom.
As a caveat, it should be noted that the present paper is
not about how forensic psychologists assess and diagnose
psychological injuries, such as post-traumatic stress disorder
(PTSD), chronic pain, and mild traumatic brain injury. Tests
related to assessments of these conditions and whether they
are validly presented are mentioned at times [e.g., the
Minnesota Multiphasic Personality Inventory (MMPI-2;
Butcher et al., 2001), the Structured Interview of Reported
Symptoms (Rogers, Bagby & Dickens, 1992), and the
Symptom Validity Test (Slick, Hopp, Strauss & Thompson,
1997)], but within the broader context of how these tests help
evaluate the plaintiff’s overall psychological injury claim, and
how these injuries are conveyed to legal decision makers.
Given the adversarial nature of tort and related actions,
the plaintiff’s mental health testimony rarely goes unchallenged. The act of seeking recovery for psychological injury
typically places this allegation “in controversy,” which subjects the injury claim to scrutiny under Rule 35 of the
Federal Rules of Civil Procedure or its state equivalent
(Kovera & Cass, 2002).Under Rule 35, the defense can
request an independent medical examination (IME) to challenge the plaintiff’s psychological injury claim. The opposing mental health expert will likely question whether the
defendant caused the plaintiff’s injuries and/or attack the
legitimacy and severity of the plaintiff’s injury (Finch,
Guthrie & Henderson, 2008).
Civil Courts’ Treatment of Psychological Injury Claims
Psychological Injury Claims in Civil Trials:
An Overview
To initiate a lawsuit, a civil plaintiff must have suffered
some form of injury due to the defendant’s conduct. To
succeed at trial, a plaintiff must establish that the defendant’s action or failure to act caused the plaintiff’s injuries
(Kane & Dvoskin, 2011; Keeton & Prosser, 1984). Upon
finding the defendant legally responsible (or liable), a jury
may award compensatory damages, the function of which is
to help return plaintiffs to their pre-injury state (Greene &
Bornstein, 2003). Injured plaintiffs can receive compensation
for their economic damages (e.g., pecuniary losses—medical
bills, lost wages) or noneconomic damages (e.g., injuries
not easily translated into a monetary value—pain and
suffering, loss of consortium, loss of enjoyment of life;
Poser et al., 2003). Psychological injury primarily falls
within the category of noneconomic damages because their
intangible nature makes it difficult to determine a precise
dollar amount (Zavos, 2009).
At trial, psychological injury evidence is typically presented by plaintiffs themselves and/or their treating mental
health professional (Smith, 2007). The treating professional
may serve as a fact witness, but should not serve as an
expert witness because he/she cannot provide independent
data. The expert should be retained solely to conduct an
evaluation and offer opinions based on a thorough, multisource, evaluation. The mental health professional provides
expert testimony regarding the nature and severity of the
plaintiff’s injury and further addresses the possibility of
malingering (Vincent, Lemond & Inman, 2008). The expert
also addresses the projected course and prognosis of the
plaintiff’s injuries, including an opinion on causation. That
is, the expert testifies to whether the plaintiff’s injuries were a
direct result of the defendant’s conduct (Foote & GoodmanDelahunty, 2005; Goodman-Delahunty & Foote, 2009).
Civil plaintiffs face many legal obstacles to obtaining a full
recovery for their psychological injuries. Arguably the biggest obstacle that plaintiffs encounter is the courts’ treatment
of psychological injury claims. Not only do courts make it
difficult for plaintiffs to initiate these claims, but the defense
is often given wide latitude to challenge these claims at trial
(see Smith, 2007). The following sections discuss these
obstacles in more detail.
Obstacle 1: The Physical Injury Requirement
One of the earliest restrictions on the plaintiff’s ability to
initiate a psychological injury claim involves barring recovery in the absence of physical injury (often referred to as the
impact rule; Rhee, 2004; Smith, 2007). For many years,
under general tort law, plaintiffs could seek recovery for
their psychological injuries (a) only if they suffered physical
injury and/or (b) only if the psychological injury is concomitant with their physical injury (see Bornstein & Schwartz,
2009). As an illustration of this prevailing notion, pain and
suffering injuries are often referred to as “parasitic damages” (Zavos, 2009). Although most jurisdictions have
replaced the strict physical injury requirement with the more
lenient “zone of danger” rule (Huffaker, 2001), a minority of
jurisdictions have retained this requirement (e.g., Georgia).
Even under the zone of danger rule or a derivation thereof
(see Dillon v. Legg, 1968), a reasonable possibility of physical harm must still exist (see Wal-Mart Stores, Inc. v.
Bowers, 1999). Thus, courts sometimes retain a general
emphasis on physical injury before permitting recovery for
pain and suffering.
That being said, plaintiffs can obtain compensation for
tortious conduct that produces purely psychological injury
[e.g., intentional infliction of emotional distress (IIED), civil
rights claims (Cass, Levett & Kovera, 2009; Kircher,
2007)]. However, these claims are not without restrictions.
Psychol. Inj. and Law
For example, an IIED plaintiff can recover for their psychological injuries only when the defendant causes severe emotional distress (see Bornstein & Schwartz, 2009; Hyatt v.
Trans World Airlines, 1997). Whether the plaintiff’s injury
constitutes severe distress falls under the courts’ discretion.
This is problematic for plaintiffs whose injuries the courts
deem insufficiently severe [e.g., emotional distress resulting
from a false HIV test (Johnson v. Methodist Hospital,
2006)] and for plaintiffs who manifest only minor injuries
due to effective coping mechanisms (see Schneider, Swan &
Fitzgerald, 1997).
Similar constraints exist when seeking recovery in employment discrimination cases. Although the plaintiff need not
suffer injury (physical or psychological) to initiate a harassment claim (Harris v. Forklift Systems, 1993), compensatory
damage awards are capped at $900,000 in some jurisdictions
(see the Civil Rights Act of 1991). As a result, plaintiffs who
experience severe psychological injury are often unable to
receive compensation for the full extent of their injuries.
Other torts similarly employ caps on compensatory damage
awards (e.g., medical malpractice; Hyman, Black, Silver &
Sage, 2009). Often, these caps generally apply only to mental
(but not physical) injuries (Zavos, 2009). Moreover, employers (under the Americans with Disabilities Act) and insurance
companies attempt to confine recovery to bodily (physical)
injury, with many courts obliging (see Hebert v. Webre, 2008;
Lopez v. Geico Insurance Co., 2012).
The existence of the physical injury requirement not only
makes recovery difficult but also implies that physical and
psychological injuries are fundamentally different. In fact,
the oft-cited rationale for the physical injury requirement is
that the existence of objective physical injury lends credibility to subjective psychological injury claims (DePianto,
2012). Because physical injuries are often substantiated via
standard medical equipment (X-rays, brain scans; Rhee,
2004), by comparison, psychological injuries appear difficult to verify. However, partly because of their overlap in
legal cases and partly due to subjective elements in both, the
concepts of “physical” and “psychological” injury remain
ill-defined, and no clear guidelines exist to classify an injury
as physical or psychological (Koch, O’Neil & Douglas,
2005). This difficulty in classification may stem from the
polytrauma or the multiple injuries plaintiffs might experience, and therefore, the high inter-relatedness between these
injuries (Duckworth & Iezzi, 2010). In fact, many injuries
have interacting physical and psychological origins (e.g.,
pain—Bornstein & Schwartz, 2009; Finch, 2005).
Moreover, recent neuro-scientific research suggests that
these injuries may have more similarities than differences;
for example, increasingly both physical and psychological
injury can be objectively verified via functional magnetic
resonance imaging (Beery, 2004; see Eggen & Laury, 2011,
for a review).
Legal and Empirical Recommendations
Given that strict empirical evidence for the physical/psychological injury distinction is lacking, especially in cases of
polytrauma and comorbidity, courts should consider whether they should retain the physical injury requirement.
Although courts have long been skeptical of psychological
injury claims due to the belief that they open the door to
frivolous lawsuits (Smith, 2007), research suggests that
psychologists are increasingly capable of assessing psychological injuries such as PTSD and whether they are malingered (Kane & Dvoskin, 2011). As a practical matter, the
absence of available guidelines to classify an injury as
physical or psychological in cases involving polytrauma or
comorbidity makes it difficult for courts to determine
whether the physical injury requirement has been satisfied.
Plaintiffs who suffer an injury of both physical and psychological origin may not be adequately compensated if erroneously classified as purely psychological. For example,
certain diagnoses such as PTSD have physical and psychological components, and courts must decide whether the
physical injury requirement is met for such disorders (see
Ware v. ANW, 2008). This requirement may also produce
unintended consequences. Because this requirement forces
courts to distinguish physical from psychological injury, the
act of bifurcation may make jurors more likely to perceive
pain and suffering as insignificant “add on” or bonus damages (Engel, 2010). For these reasons, many legal scholars
(e.g., DePianto, 2012; Gray, 2009) recommend the abolition
of this requirement.
Whether the physical injury requirement is maintained
should be informed by empirical research. Although physical and psychological injuries are ostensibly different, little
is known regarding the dimensions on which they differ. For
example, the Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, Text Revision (DSM-IV-TR;
American Psychiatric American Psychiatric Association,
2000) includes under pain disorder three types associated
with a general medical condition, psychological factors, or
both. More importantly, little is known about what legal
decision makers perceive to be the differences between
physical and psychological injuries.
Given the issues about the distinction between physical
and psychological injury, it appears that research is needed
concerning how judges classify injuries as physical and
psychological to determine whether the physical injury requirement has been satisfied. Programmatic research should
be additionally undertaken, for example, on how jurors
perceive the physical injury requirement, and the differences
between the plaintiff’s physical and psychological injuries.
This research will provide empirical data to inform whether
courts should maintain or eliminate the physical injury
requirement, as well as common legal distinctions between
Psychol. Inj. and Law
physical and psychological injury (e.g., economic and noneconomic damage awards, respectively).
Obstacle 2: Challenging a Psychological Injury Claim
Another obstacle to a full plaintiff recovery is the extensive
latitude given to the defense when challenging the plaintiff’s
psychological injury claim (Beery, 2004; Smith, 2007). In
most civil cases, the plaintiff’s psychological injuries are
subject to scrutiny if the courts deem the injuries “in controversy.” If the injuries are considered in controversy, the
defense can request an IME to challenge the nature and the
extent of the plaintiff’s injuries. In practice, the mere presence of psychological injury typically places the allegation
in controversy. However, there are several exceptions to this
general rule. In some instances, mild psychological injury
that does not involve expert testimony regarding a specific
psychological disorder (e.g., humiliation, embarrassment)
rarely places the injury in controversy (Foote & GoodmanDelahunty, 2005). In other instances, these injuries are considered to be within the knowledge base of the jury, so that
expert testimony is not required.
The knowledge that severe mental distress places a psychological injury allegation in controversy leads to a catch22 for the plaintiff. If the plaintiff attempts recovery for
severe emotional distress, testimony by an opposing psychological expert may (a) reduce the perceived severity of
the injury or (b) greatly harm the plaintiff’s credibility. If the
plaintiff does not attempt to mitigate the damages, the probability of undercompensation becomes a near certainty.
Either option may effectively contribute to vertical inequity
(Greene, Downey, & Goodman-Delahunty 1999), where
plaintiffs with severe injuries receive the same level of
compensation as plaintiffs with mild injuries. That is, the
presence of an opposing expert may reduce the likelihood
that these plaintiffs will obtain compensation that reflects
the severity of their injury.
Legal and Empirical Recommendations
The severity of the plaintiff’s injuries often dictates whether
plaintiffs can pursue recovery for their psychological injuries and whether the defense can challenge these claims.
Judges must serve as “gatekeeper” (see Daubert v. Merrell
Dow Pharmaceuticals, 509 U.S. 579, 1993) and evaluate
mental health information to assess whether the injury is
mild or severe, and thus in controversy (Redding & Murrie,
2010). Despite its importance, we know little about how
judges perceive the plaintiff’s psychological injury claim
and how they determine whether an injury is severe enough
to place the injury in controversy. Because most judges
receive little (if any) formal training about scientific evidence, particularly training on mental health issues (see
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579,
1993—often referred to as “Daubert II”); Redding &
Murrie, 2010), whether judges should evaluate evidence of
psychological injury severity to make these determinations
demands further examination. Given that judges currently
evaluate psychological injury evidence, future research
should examine how judges perceive psychological injuries
(and their severity) and the resulting effects on legal
decisions.
Although the defense commonly challenges the severity
of the plaintiff’s alleged injuries via cross-examination and
opposing expert testimony, we know little regarding the
impact of these techniques on jurors’ legal decisions. How
does the mere act of challenging the plaintiff’s injury claim
affect liability and damage decisions? Through what modality
is this challenge most effective (cross-examination vs. opposing expert testimony), and which type of legal challenge is
most effective (e.g., challenging the plaintiff’s credibility
and/or whether the defendant caused the injury)? Do these
challenges have differential effects on mild and severe injury?
That is, perhaps these challenges contribute to vertical inequity by reducing jurors’ damage awards, but only for those
plaintiffs alleging severe psychological injury.
Obstacle 3: The Presence and Admissibility of Pre-existing
Psychological Injury
When a plaintiff alleges psychological injury at trial, the
defense commonly challenges these allegations by introducing pre-existing psychological injury (PEI) evidence. It is
likely that many civil plaintiffs suffer from PEI, for nearly
50 % of the population meets diagnostic criteria for a psychological disorder during their lifetime (Moffitt et al.,
2010). Although damaging to a case, PEI does not preclude
plaintiffs from recovering for their psychological injuries
(see the “eggshell skull” rule—you take plaintiffs as they
are; Levy & Rosenberg, 2003).
As with all evidence, PEI must meet admissibility
requirements before it reaches the jury. To be admissible,
PEI must be more probative (relevant to helping juries
decide whether a statement is more likely than not true) than
prejudicial (the possibility that PEI will excessively and
negatively affect a jury; see Beery, 2004). The plaintiff’s
PEI is often considered generally probative to jurors’ credibility assessments and specifically probative to legal causation (Smith, 2007). When evaluating credibility, jurors can
consider whether the plaintiff is intentionally blaming the
defendant for distress that pre-dated the defendant’s conduct. When evaluating legal causation, jurors can consider
whether PEI provides a plausible alternative explanation for
the plaintiff’s alleged injuries. That is, whether the plaintiff
is intentionally concealing the contribution of his or her PEI
to their current injury allegation or whether an otherwise
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honest plaintiff is incorrectly attributing a spike in symptomatology to the defendant’s conduct. Due to its possible
relevance, courts routinely admit testimony about psychological PEI (see Beery, 2004; Smith, 2007).
Legal and Empirical Recommendations
Despite the prevalence of PEI in civil cases, courts often
undertake little (if any) analysis regarding the probative and
prejudicial nature of PEI. Courts may avoid this inquiry because (a) they lack specific knowledge on PEI and how it may
affect the jury and/or (b) because no available guidelines exist
to assist their decisions. A potential consequence is that courts
may unknowingly admit irrelevant and prejudicial PEI. Of
course, relevancy guidelines are only necessary if cases exist
where PEI is irrelevant to a current injury claim. Consider a
negligence case where the plaintiff currently alleges PTSD,
but suffered from a pre-existing psychological injury of another type in the distant past. Ten years ago, the plaintiff was
diagnosed with major depressive disorder. Through a combination of successful treatment and/or the natural course of this
disorder, the plaintiff had become asymptomatic at the time
that the negligent conduct occurred. In this example, the
preponderance of the evidence dictates that the PEI is unrelated to the plaintiff’s current injury claim.
Under the assumption that PEI can be either relevant or
irrelevant to the plaintiff’s current injury claim, psychologists should generate empirically supported guidelines to
assist judges when evaluating the probative nature of PEI.
When evaluating the probative nature of PEI, particularly in
regards to legal causation, the following factors should be
considered: (a) symptom overlap between the PEI and the
current injury allegation, (b) the date of PEI onset, (c) the
course and duration of the PEI, and (d) its amenability to
treatment. If the PEI and current injury allegation share
many disorders and symptoms in common, the PEI is relevant by providing a plausible alternative explanation for the
plaintiff’s injuries. Providing judges with co-morbidity rates
may assist in this determination; PEI that is highly comorbid with the alleged injury (e.g., panic disorder and
agoraphobia) is more relevant than PEI that is not commonly associated with the alleged injury (e.g., generalized anxiety disorder and anti-social personality disorder; National
Comorbidity Survey Replication—Kessler et al., 2003). The
date of onset is also useful when determining the relevance
of PEI. Because many disorders can be effectively managed
(see Angermeyer & Matschinger, 2003) and become frequently asymptomatic (e.g., mood disorders; American
Psychiatric Association, 2000), long-standing PEI’s are often less relevant than those diagnosed in closer proximity to
the defendant’s conduct. The course, duration, and treatability of the disorder are similarly relevant, for each speaks to
whether the plaintiff experienced these symptoms right
before the defendant’s alleged conduct occurred. Disorders
that are generally more acute and amenable to treatment
(e.g., anxiety disorders) are less likely to provide alternative
explanations for the plaintiff’s current mental health status. In
this regard, the plaintiff’s demonstration or desire to mitigate
PEI’s in mental health history must be considered before
making this determination (e.g., whether the plaintiff sought
and obtained successful treatment for his or her disorder).
Little (if any) research has examined the prejudicial impact of psychological PEI. The paucity of research on this
topic may be due to the lack of clarity regarding what
constitutes prejudicial evidence. One way to operationalize
and measure prejudicial impact is to examine whether the
presence of PEI evidence is more heavily weighed by jurors
when compared to other trial evidence (see DePianto, 2012).
Thus, PEI may be prejudicial if its presence overwhelms the
impact of all other exculpatory evidence by guaranteeing a
not liable verdict. Future research should manipulate the presence (and absence) of psychological PEI to determine its
relative and overall impact on case outcomes when compared
to other case evidence. In certain research designs, multiple
regression analyses can help determine whether PEI is overly
prejudicial by comparing R2 and R2 change to other evidence,
including the amount of variance in legal judgments
accounted for by PEI. If PEI strongly shifts the balance in
favor of the defendant when compared to other evidence, its
presence may be considered unduly prejudicial, necessitating
stricter admissibility guidelines.
Legal Decision Makers’ Perceptions of Psychological
Injury
The above review illustrates how the law often places civil
plaintiffs at a disadvantage when initiating psychological injury claims. Perhaps, an even bigger obstacle encountered by
civil plaintiffs are legal decision makers’ perceptions of psychological injury. In fact, the very legal requirements that
place plaintiffs at a disadvantage are a likely by-product of
legal decision makers’ (a) lack of knowledge about mental
health issues and, as a result, (b) misperceptions about psychological injury. These misperceptions are not surprising, for
generally, legal officials receive no specific training on mental
health issues (see Redding & Murrie, 2010). The following
sections address what we know (and do not know) regarding
legal officials’ knowledge of mental health issues, and the
common misperceptions held within the legal community
regarding psychological injury evidence.
Attorneys’ Perceptions of Psychological Injury Evidence
Plaintiffs’ attorneys play a key role in the initiation and
resolution of a psychological injury claim. In fact, attorneys
Psychol. Inj. and Law
are usually the first legal professionals to formally assess the
merits of the plaintiff’s psychological injury claim. In these
cases, plaintiffs’ attorneys must decide whether to take the
case and then whether to pursue settlement or trial. Upon
choosing to pursue the claim at trial, attorneys must decide
whether and how much to emphasize the plaintiff’s psychological injuries (see Beery, 2004). These decisions may
strongly hinge on two factors: (a) attorneys’ personal beliefs
regarding psychological injury and (b) their predictions
regarding how jurors will perceive their client’s injuries.
Based on these factors, strong cases (those most likely to
be successful and produce a large damage award) are likely
to be prioritized over weak cases. However, research indicates that attorneys’ ability to predict case outcomes is
limited—attorneys are often inaccurate and overconfident
regarding their ability to successfully resolve their cases
(Goodman-Delahunty, Hartwig, Granhag & Loftus, 2010;
Loftus & Wagenaar, 1988). This research suggests that
attorneys may be equally poor predictors of how a jury will
perceive psychological injury at trial.
Although plaintiffs attorneys’ perceptions of psychological injury likely play an integral role in case dispositions,
little (if any) research has examined their perceptions of
these injuries, or of how they believe jurors will perceive
these injuries. Specifically, how do plaintiffs’ attorneys initially judge the nature, severity, and credibility of their
client’s psychological injuries? How do these perceptions
and their beliefs about how jurors will perceive psychological injury affect their case decisions? That is, are attorneys
less likely to accept a civil case primarily involving psychological injury? What strategies do they utilize to increase
compensatory damage awards, and are these strategies effective? Future research should provide attorneys with different types and severity levels of psychological injury to
initially examine attorneys’ own perceptions of these injuries, and attorneys’ perceptions of how jurors will perceive
these injuries. This research should further examine how
attorneys’ perceptions affect their dispositional decisions.
Results will illuminate whether attorneys devalue psychological injury claims and whether this devaluation is due to
attorneys’ beliefs, or their beliefs about jurors’ likely reactions to this evidence at trial.
Judges’ and Jurors’ General Perceptions of Psychological
Injury Evidence
Once an attorney pursues recovery for his or her client’s
injuries, triers of fact (the judge or jury) are the final arbiters
of the case outcome. Other than personal experience, judges
and jurors often have little knowledge about psychological
disorders (see Redding & Murrie, 2010). The knowledge
that they do have may also be erroneous, placing another
roadblock between plaintiffs and their deserved compensation.
The following sections examine what judges and jurors most
likely know about psychological injury.
Lay Knowledge of Mental Health Issues
Research indicates that lay knowledge of mental illness
(often referred to as mental health literacy) is often less than
to be desired (Haslam & Giosan, 2002; Lauber, Nordt &
Wulf, 2005; Lauber, Nordt, Falcato & Wulf, 2003). For
example, adults have difficulty labeling psychological injuries as severe and diagnosable disorders (e.g., depression;
Lauber et al., 2005) and have difficulty describing the general symptomatology underlying many commonly diagnosed disorders (e.g., mood and personality disorders;
Prins et al., 2008). Upon giving adults vignettes describing
symptoms of schizophrenia and depression, Lauber et al.
(2003) found that adults correctly identified the depression
vignette as a depressive disorder 40 % of the time, and
correctly identified the schizophrenia vignette as schizophrenia 70 % of the time. Similarly, Angermeyer and
Matschinger (2003) observed that participants were more
likely to identify schizophrenia as a mental disorder than
depression. A troubling implication of these findings is that
laypeople not only have difficulty identifying common disorders adduced by civil plaintiffs (e.g., mood disorders) but
also devalue their severity. Reflecting on this issue, Jorm,
Christensen and Griffiths (2005, p. 52) commented that
there is a “general lack of exposure to depression leading
to an underestimation of its seriousness and the necessity for
intervention.”
Based upon the common misconceptions of mental illness in the general population, it is not surprising that legal
decision makers subscribe to similar misperceptions about
psychological injury evidence. But perhaps, the largest overarching misperception endorsed within the legal system is
that physical injuries are fundamentally more damaging than
psychological injuries (Gray, 2009). This assumption underlies the legal distinctions between these injuries that make it
easier for plaintiffs to recover for physical than psychological injuries (Bornstein & Schwartz, 2009). In fact, the latest
draft of the Restatement of Torts (3rd; 2007 American Law
Institute, 2010) endorses this belief and outlines reasons
why the legal distinction between physical and emotional
(psychological) injury should remain. These reasons can be
categorized as follows—emotional injuries are (a) not objectively verifiable, (b) easily fabricated, and (c) not severe. The
following sections address the merits of these assumptions.
Misperception 1: Psychological Injuries Are not Objectively
Verifiable
Some courts appear to hold the false belief that the mercurial
nature of psychological injury does not permit objective
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verification (Smith, 2007). As such, when compared to
physical injuries, psychological injuries are often defined
by the courts as subjective and intangible (Leonard v. John
Crane, 142 Cal. Rptr. 3d 700, 2012; People v. House, 61
AD3d 700, 2009). Unlike physical injuries, which are often
amenable to direct and observable evidence (e.g., X-rays,
brain scans), despite the accuracy that might be obtained
through psychological assessment, no known method exists
to definitively substantiate a purely psychological injury.
Thus, psychological assessments use not only objective tests
but also heavily rely on clinical judgment of the plaintiff’s
self-reported symptoms (Kane & Dvoskin, 2011). However,
especially when used inappropriately, self-report data and
clinical judgment are fraught with a host of biases that can
lower diagnostic accuracy (Borum, Otto & Golding, 1993;
Kane & Dvoskin, 2011).
Despite these challenges, it is unfair to portray psychological injuries as completely subjective. Although physical injuries may be more easily observable than psychological injuries,
this depends upon what is meant by “observable.” Just as one
can view a broken arm, one can view depression by the
manifestation of overt behavior (e.g., psychomotor retardation,
weight loss, lack of interest). In addition, there are many tools
at psychologists’ disposal to verify the existence of an underlying psychological malady and whether their symptoms can
be attributed to malingering (Kane & Dvoskin, 2011). Instead
of solely relying on clinical judgment, competent mental health
experts utilize a battery of reliable and valid psychological tests
to support initial diagnoses (see Groth-Marnat, 2003).
Although these tests rely on self-report, they include respondent validity indicators (e.g., the MMPI-2; Graham, 2000). In
addition, competent psychologists utilize other means to enhance diagnostic reliability (i.e., symptom validity testing,
review of records, and behavioral observation).
It should also be considered that the process of confirming the existence of physical injury is not as objective as it
appears. The term “objective” refers to evidence “not influenced by personal feelings or opinions” (Merriam-Webster’s
collegiate dictionary, 11th edn, 2012). Under this definition,
the clinical judgment utilized to assess the nature and extent
of physical injuries opens the door for subjectivity and bias
(Crumlish & Kelly, 2009; Ransohoff & Feinstein, 1978).
Although many medical tests aid diagnostic decisions,
physicians must interpret test results based upon their
training and experience. In addition, many physical injuries
are subjective in that they do not appear on an X-ray or
brain scan (e.g., pain, fibromyalgia, and certain bone fractures. Furthermore, as mentioned, it is often difficult (and
in some cases, impossible) to determine whether the
claimed injury has a physical or psychological origin
(Finch, 2005). These complexities make both physical and
mental injuries difficult to distinguish and thus difficult to
verify via objective means.
The emphasis on whether psychological injuries are actually objectively verifiable detracts from the more important issue of whether jurors perceive these injuries as
objectively verifiable. Future studies should examine what
components make an injury objectively verifiable and
whether psychological injuries are generally perceived by
jurors as less objectively verifiable than physical injuries.
Specifically, researchers should utilize various civil scenarios that could plausibly result in either physical or psychological injury, manipulate the plaintiff’s alleged injury
(physical vs. psychological), and hold the consequences to
the plaintiff’s overall functioning constant. If it is found that
jurors also perceive psychological injuries as subjective,
future studies should examine what evidence (e.g., psychological testing, clear rules on how to use clinical judgment)
can best enhance its perceived objectiveness and standing as
a legitimate and recoverable injury.
Misperception 2: Psychological Injuries are Easily
Fabricated
Due to the belief that psychological injuries are difficult (if
not impossible) to verify, courts approach these injuries with
great skepticism (Smith, 2007). In the present climate of tort
reform, courts have been wary of allowing recovery for
psychological injuries, as they believe this would enable a
profundity of civil lawsuits (Eskin v. Bartee, 262 S.W.3d
727, 2008). Research suggests that jurors share this skepticism and question plaintiffs attempting to recover for these
ostensibly subjective injuries (Hans & Vodino, 2007;
O’Donohue & Bowers, 2006; O’Donohue & O’Hare,
1997). For example, Vallano, Winter, and Charman (recently submitted for publication) found that mock jurors were
especially skeptical of psychological injuries that were (a)
extremely severe and (b) exceeded their expectations for
reasonable injuries.
An important matter to consider is that there are numerous
motivations for plaintiffs to fabricate psychological injury
(including the obvious monetary incentive; O’Donohue &
Bowers, 2006), and there are often few (if any) penalties for
making such a claim. Because these injuries are difficult to
observe and heavily reliant on self-report, psychological injuries might appear easy to feign. Even more, given their lack of
expertise, many plaintiffs’ attorneys’ may not identify malingering due to an unconditional trust in their client, while others
are not knowledgeable enough about psychological tests to
assess the plaintiff’s credibility.
In contrast, psychologists can resort to many methods to
assess whether a plaintiff is lying or exaggerating about their
psychological symptoms. In forensic settings, evaluators
frequently utilize tests with sound psychometric properties,
some of which are specifically designed to detect malingering (e.g., MMPI-2; Test of Memory Malingering; Tombaugh
Psychol. Inj. and Law
2006, and Validity Indicator Profile; Frederick, 1997). The
MMPI-2, one of the most commonly utilized psychological
tests in forensic settings (Kane & Dvoskin, 2011), contains
empirically supported validity scales, the F family of scales
and other scales that detect response biases (Graham, 2000).
In addition, medical evaluators often use clinical judgment
and not objective measures to determine physical symptoms
such as pain, tingling, numbness, and blurry vision.
Therefore, relative to psychological symptoms, some physical symptoms might be just as easily fabricated, as they also
rely on self-report and clinical judgment.
This paper argues that the sweeping generalization that
psychological injuries are more easily fabricated than physical injuries would seem inaccurate. This oversimplification
can lead to the unintended consequence of courts’ unfairly
scrutinizing a psychological injury claim to avoid frivolous
lawsuits. In reality, nearly any injury can be fabricated, and
any lawsuit can be frivolous. Because techniques exist to
provide reasonable certainty regarding the existence of psychological injury and because physical symptoms might not
be as objective as they seem, psychological injuries should
not be devalued in court, making it difficult for plaintiffs to
obtain adequate recovery for their injuries.
Misperception 3: Psychological Injuries Are not Severe
If stakeholders in the legal system endorse the previously
discussed misconceptions, they would be led to conclude
that psychological injuries are not severe. However, of the
general population who meet criteria for a diagnosable disorder within their lifetime, a high percentage of these symptoms can be classified as severe (Kessler et al., 2003). In
fact, psychological injuries can be equally, if not more
debilitating, than physical injuries (Blumberg, 2009; Rhee,
2004). As an illustration, DePianto (2012) found that adults’
ratings of their overall subjective well-being were most
heavily impacted by their emotional (and not physical)
well-being. This is likely because some psychological injuries are not easily amenable to treatment due to their pervasive and/or inflexible nature (e.g., personality disorders,
severe polytrauma). Even worse, there is a heavy stigma
associated with psychological injury (King et al., 2007). The
general public often classifies individuals as weak if they are
unable to cope with their distress, especially if they seek
professional help (Eisenberg, Downs, Golberstein & Zivin,
2009). This mental distress can be exacerbated by the general skepticism regarding these hidden injuries. For these
reasons, individuals with mental illness have difficulty seeking the proper treatment for their disorder, prolonging their
suffering (Schomerus & Angermeyer, 2008).
Are physical injuries actually more severe than psychological injuries? It is undoubtedly difficult (and likely impossible) to establish whether physical and psychological
injuries differ in actual severity, given that these perceptions
are largely subjective. Whether physical injuries are actually
more severe than psychological injuries diverts from the
more important question: Do legal decision makers generally perceive psychological injuries as not very severe, compared to their physical counterparts? This question is
important because it may provide the best explanation for
why physical and psychological injuries are treated differently by the courts and why some psychological injury
claims may be generally devalued by legal decision makers.
Future research should employ the previously discussed
experimental methodology to allow for causal inferences
about the relative perceived severity of physical and psychological injuries (by manipulating injury type and measuring perceptions of injury severity). Because courts and
legal guidelines (e.g., the Restatement of Torts) implicitly
(and often explicitly) express their distrust of psychological
injury, future research should examine whether jurors share
these views.
One reason for the underappreciation of mental distress
in court may be that inadequate tools exist to measure and
convey injury severity to legal decision makers. Experts
often use psychological testing to assess the plaintiff’s injuries, and many psychological tests that aid in diagnostic decisions contain some type of built-in indicators of injury
severity, with a greater number of symptoms indicating injury
severity (e.g., the State-Trait Anxiety Inventory—Spielberger,
1983; Beck Depression Inventory— Beck, Steer & Brown,
1996). The DSM-IV-TR has individual guidelines to classify
specific disorders as mild, moderate, or severe, and also contains a global assessment of functioning (GAF) scale to rate
the client’s overall daily functioning on a 1–100 scale. As
indicated by its name, the GAF scale primarily assesses injury
severity by the level of impairment in daily functioning.
Unfortunately, these crude assessments are unable to fully
assess and convey the extent of the plaintiff’s psychological
injury, given that injury severity is likely more complex and
multidimensional than indicated by the number of total symptoms or functional impairment (Kane & Dvoskin, 2011).
Future research should examine the ability of these
approaches to fully demonstrate to the court the extent of the
plaintiff’s injuries and how triers of fact perceive these
approaches to injury severity.
Jurors’ Specific Perceptions of Psychological Injury
Evidence in Civil Trials
The above review examined how judges and jurors generally treat and perceive psychological injury. This review
now narrows the focus to how jurors likely perceive psychological injury evidence in the context of civil trials. The
following section summarizes the available literature relevant to these topics and addresses the factors that likely
Psychol. Inj. and Law
affect how jurors perceive psychological injury evidence in
the courtroom.
Jurors’ perceptions of the plaintiff’s injuries are likely
based on their general notions of psychological injury.
These preconceived notions, often termed schemas (Alba
& Hasher, 1983), consist of jurors’ general beliefs about
psychological injury, including what injuries typically result
in certain civil cases. To date, most research has examined
the content of jurors’ physical injury schemas, finding that
jurors associate certain physical injuries with certain types
of tortious conduct (Hart, Wissler & Saks, 1997; Hart,
Evans, Wissler, Feehan, & Saks, 1997). For example, Hart
et al. (1997) found that jurors have well-developed physical
injury schemas for slip and fall and car accident cases; jurors
believed these cases typically resulted in broken bones and
whiplash, respectively. These jurors exhibited less-developed
schemas for product liability and medical malpractice cases,
for which they had difficulty reporting typical injuries.
Unfortunately, there is scant research examining legal
decision makers’ psychological injury schemas. The few
indirect investigations on this issue have found that jurors
generally exhibit underdeveloped psychological injury
schemas (Hart et al., 1997; Popovich, Jolton, Mastrangelo
& Everton, 1995). Popovich et al. (1995) discovered that
even though sexual harassment almost always produces
psychological injury, only 25 % of participants’ harassment
scripts mentioned that the victim would suffer an “emotional
response.” Even more striking, Hart et al. (1997) found that
in four negligence cases, mental distress was present in 1 %
of participants’ injury schemas. Although it is tempting to
conclude that psychological injury schemas are either nonexistent or underdeveloped (particularly compared to physical injuries), the “jury is still out” on this issue. Future
research should directly examine the content of psychological and physical injury schemas in various civil cases.
Because the aforementioned research asks participants to
generally report their schemas in civil cases, future research
should specifically ask participants to visualize and record
the typical psychological (and physical) injuries they expect
to result in civil cases. In the process, these studies should
examine how jurors’ attitudes and experience with mental
illness affect the content of their psychological injury
schemas (see Hart et al., 1997).
Although schemas undoubtedly influence how jurors
generally perceive psychological injury, how do jurors perceive actual testimony regarding the plaintiff’s psychological injuries at trial? Unfortunately, most research has
examined jurors’ perceptions of the plaintiff’s physical injuries (Hart et al., 1997; Wissler, Evans, Hart, Morry &
Saks, 1997). For example, Wissler et al. (1997) manipulated
whether an expert described mild or severe physical injury
and measured mock jurors’ perceptions of the plaintiff’s
injuries on nine dimensions: how visible the injury is, the
amount of physical pain, duration of physical pain, amount
of mental suffering, duration of mental suffering, severity of
disability, severity of disfigurement, overall severity of injury, and the effect of the injury on the plaintiff’s everyday
life. Plaintiffs with severe injuries received higher ratings on
five of the nine injury dimensions than plaintiffs with mild
injuries (visibility, disability, the amount of mental suffering, overall severity, and the effect on the plaintiff’s
everyday life). The fact that participants’ ratings on
these nine dimensions were not perfectly correlated supports
the notion that physical injury severity is a multidimensional
construct.
Unfortunately, there has been relatively little study regarding the dimensions that comprise psychological injury,
as well as jurors’ perceptions of these dimensions. However,
the relevant research on physical injury strongly suggests
that psychological injury severity is also a multidimensional
construct. Recent research by Vallano and colleagues examined jurors’ perceptions of psychological injury severity in
sexual harassment cases (Winter & Vallano, 2013; Vallano,
Winter, & Charman, manuscript submitted for publication).
After manipulating whether expert testimony described mild
or severe psychological injury, Winter and Vallano (manuscript submitted for publication) used the psychological
injury questionnaire (PIQ) to assess participants’ perceptions of psychological injury severity. This research indicated that, consistent with physical injury research, mock jurors
perceived differences in severity and rated the injury
descriptions differently on several, but not all, of the included dimensions.
The PIQ is the first known attempt to specifically assess
the dimensions that comprise psychological injury severity
and what dimensions distinguish mild from severe injury.
Although some dimensions from the physical injury severity
of Wissler et al. (1997) were incorporated in the PIQ (e.g.,
amount and duration of pain, visibility, and the effect on the
plaintiff’s everyday functioning), other dimensions were not
incorporated because they may not be as readily applicable
to psychological injury (e.g., the amount of disability, disfigurement). Thus, additional dimensions were added to
more adequately examine the unique and multidimensional
nature of psychological injury, such as frequency of symptoms, permanency of the injury, whether the injury is perceived as treatable, and whether the victim can cope with the
injury on his or her own. Perceived frequency of the plaintiff’s symptoms should be incorporated, because this dimension is employed by the DSM-IV-TR to assess injury
severity. The perceived permanency of the psychological
injury should also be incorporated (i.e., acute vs. chronic),
given that this dimension is included on other injury severity
measures (e.g., the National Association of Insurance
Commissioners—see Cohen & Hughes, 2007) and has been
shown to strongly predict civil damage awards (see Wissler,
Psychol. Inj. and Law
Kuehn, & Saks, 2000). Further dimensions include perceived
treatability, or how successful medication or therapy can treat
psychological disorders. Hart et al. (1997) discovered that the
likelihood of successful treatment (termed “correctability”)
was one of the primary dimensions underlying perceptions
of physical injury severity. Although not yet studied, treatability perceptions likely influence compensatory damage awards.
For instance, although research generally finds a positive
relationship between injury severity and damage awards (see
Robbennolt, 2000), plaintiffs suffering from severe, irreparable harm (e.g., paralysis) may receive less compensation than
plaintiffs suffering from severe but repairable injuries
(e.g., skin grafts for third degree burns). Furthermore,
the perceived ability of the plaintiff to cope with their
disorder may affect overall perceptions of psychological
injury severity, as some disorders (e.g., depression) may
be considered less severe because the general population
believes they do not require the assistance of others
(Schomerus & Angermeyer, 2008).
The Effect of Psychological Injury Evidence on Legal
Decisions
It is important to understand legal decision makers’ perceptions of psychological injury evidence because these perceptions will affect their legal judgments. The following
sections address how psychological injury should affect
legal judgments in civil cases and summarizes the scant
research related to how psychological injury actually affects
jurors’ legal judgments.
Liability Determinations
How Psychological Injury Evidence Should Affect Jurors’
Liability Decisions
In civil cases, jurors must determine whether the defendant’s
conduct caused the plaintiff’s injuries. Thus, the nature and
extent of the plaintiff’s psychological injury is ostensibly
irrelevant to this determination and should exert little (if
any) influence on jurors’ liability decisions (Greene,
Johns & Smith, 2001). However, the plaintiff’s psychological injuries are often incorporated within jurors’
evaluations of the plaintiff’s credibility, as well as
whether the defendant caused the plaintiff’s injuries
(Smith, 2007). For example, a jury that is skeptical of
the plaintiff’s injury claim may critique the overall
credibility of the plaintiff’s claim. In addition, a jury
that believes that the plaintiff’s injuries are too severe,
or perhaps too delayed, may surmise that the defendant
did not cause the injury.
How Psychological Injury Evidence Actually Affects
Jurors’ Liability Decisions
The bulk of research on this topic has examined the effect of
physical injury severity on civil judgments. Generally
speaking, more severe physical injuries increase findings
of liability (e.g., Greene et al., 2001; Robbennolt, 2000;
Woody, 2008; but see Cather, Greene & Durham, 1996).
One explanation for this positive relationship is defensive
attribution theory (Shaver, 1970). Defensive attribution theory posits that more severe injuries evoke emotions such as
sympathy (Bright & Goodman-Delahunty, 2010) and fear
(Feigenson, Park, & Salovey, 1997, 2001) over the concern
that jurors may themselves be the victim of similar negligent
conduct, which jurors attempt to reduce by punishing the
defendant. However, the existence of this positive relationship may further depend upon perceptions of the defendant’s
conduct (Greene et al., 2001), whether jurors are able to
award compensatory damages (Bornstein, 1998), and
whether the alleged injuries typically result from the negligent conduct (Hart et al., 1997). Another proposed explanation for this positive relationship is the hindsight bias
(Hastie, Schkade & Payne, 1999), where knowledge of
more severe injuries induces a retrospective analysis that
the defendant’s conduct must have been similarly severe.
Although few studies have experimentally manipulated
the severity of the plaintiff’s psychological injury, recent
research indicates that this evidence similarly impacts liability judgments. For example, Winter and Vallano (2013)
provided participants with a sexual harassment case summary and manipulated expert testimony regarding the severity of the complainant’s psychological injuries (minimal,
moderate, or severe). Results indicated that more severe
psychological injuries increased findings of liability, but
only for male participants. Vallano et al. (2013) used similar
methodology and manipulated participants’ expectations for
psychological injury severity (expecting only mild injury vs.
expecting mild or severe injury) in a sexual harassment case,
and subsequently altered the actual injury severity adduced
by the plaintiff (minimal, moderate, or severe). Results
indicated that more severe psychological injury allegations
increased findings of liability, but only when the injuries fell
within the range of participants’ expectations. For participants expecting mild injury, injury allegations that increased
from mild to moderate severity decreased liability judgments. For participants expecting mild to severe injury,
injury allegations that increased from mild to moderate
severity increased liability judgments.
Contrary to legal instructions, the aforementioned studies
establish that psychological injury severity affects mock
jurors’ liability judgments. Future research should attempt
to replicate these findings with different cases (e.g., negligence) in a more ecologically valid context (e.g., trial
Psychol. Inj. and Law
simulations with deliberating juries). Because this research
is in its infancy, future studies should investigate additional
mediating and moderating variables (e.g., perceptions of
credibility, and whether the defendant’s conduct was a proximate cause of the plaintiff’s injuries). Moreover, future
research should examine theoretical frameworks to explain
the social–cognitive dynamics underlying jurors’ liability
decisions in cases involving psychological injury.
Compensatory Damage Determinations
How Psychological Injury Evidence Should Affect
Compensatory Damage Decisions
Unlike liability judgments, psychological injury severity
should affect jurors’ compensatory damage decisions, and
more specifically, their noneconomic damage awards. After
all, the general purpose of compensatory damages is to
make plaintiffs whole by returning them to their preinjury
state (Greene, Johns & Bowman, 1999). As a result,
compensatory damage awards should increase in proportion to the severity of a plaintiff’s injuries. Moreover,
psychological injury severity should account for a large
amount of variance in juror’s damage awards, for legal
instructions instruct jurors to heavily consider injury severity when awarding compensatory damages (Wissler
et al., 1997).
How Psychological Injury Evidence Actually Affects
Compensatory Damage Decisions
Despite the widespread concern that compensatory damage
awards are unpredictable and excessive (Vidmar & Rice,
1992), plaintiffs often have low success rates at trial and
most receive minimal compensatory damage awards (Civil
Justice Survey of State Courts, 2001). The concern of excessive damage awards may be due to the belief that jurors
consider factors other than the severity of the plaintiff’s
injuries. However, research indicates that jurors appropriately consider physical injury severity, which is strongly and
positively related to compensatory damage awards (e.g.,
Greene et al., 2001; Robbennolt, 2000; Wissler et al.,
2000). Diamond and Salerno (2013) further suggest that
the use of more specific and sensitive measures may indicate
that injury severity accounts for even more of the variance in
noneconomic damage awards. Specifically, prior research
has employed the National Association of Insurance
Commissioners’ severity of injury scale, which places injury
severity on a 1–9 scale, where 1=emotional injury only
(e.g., fright), and 9 = death (Cohen & Hughes, 2007;
Wissler, Hart & Saks, 1999). Thus, the development of more
sensitive injury severity measures will help researchers
more accurately portray the impact of injury severity on
legal decisions.
Similarly, the perceived severity of the plaintiff’s psychological injuries strongly impacts overall compensatory damage awards (e.g., see generally Diamond & Salerno, 2013;
Wissler et al., 1997). Despite manipulating physical injury
severity, Wissler et al. (1997) found that mock jurors’ perceptions of mental suffering were the single greatest predictor of pain and suffering awards. The only known research
manipulating psychological injury severity also supports
this notion, demonstrating that psychological injury severity
is strongly and positively related to compensatory damage
decisions (Vallano et al. 2013; Winter & Vallano, 2013). In
addition, this research further examined the role of perceived complainant credibility, an oft-unstudied variable in
this literature. Results indicated that perceived complainant
credibility mediated the positive relationship between psychological injury severity and compensatory damages. That
is, extreme injuries were perceived as less credible than mild
injuries, resulting in a reduction of the overall compensatory
damage award.
There are many areas for future research regarding the
effects of psychological injury on compensatory damage
awards. Most importantly, researchers and practitioners
would be greatly benefitted by a theoretical model to explain
how jurors calculate monetary awards for psychological
injuries. That is, how do jurors’ translate psychological
injuries into monetary awards, and what factors affect this
translation? As researchers have long lamented the complexity of translating psychological injuries into dollar
amounts (Hans & Vodino, 2007; Vidmar & Rice, 1992)
and the lack of legal guidance to assist jurors when attaching
monetary values to psychological injury (Wissler et al.,
1999), this issue is receiving increased attention (see
Avraham, 2006; Hans & Reyna, 2011). For example, Hans
and Reyna (2011) laudably employ a theoretically based
cognitive approach to how jurors translate pain and suffering into compensatory damage awards. Specifically, Hans
and Reyna propose that jurors first make a “gist” judgment
to assess injury severity, and then fit the perceived severity
within a numerical range of compensation. Much more
research is needed to adequately test the components of this
theory, as well as examining possible social and motivational explanations for noneconomic damage awards. For instance, the empathy–altruism hypothesis (Batson et al.,
1991) may be applicable to jurors’ noneconomic damage
decisions. That is, jurors who experience empathy for the
plaintiff’s injuries may provide more compensation than
jurors who do not experience empathy. However, jurors’
motivation to help the plaintiff may depend on their ability
to help; that is, their perceptions of whether money can
return plaintiffs to their pre-injury state or offset the damage
done to the plaintiff to some degree.
Psychol. Inj. and Law
Summary and Conclusions
The importance and interest in the study of psychological
injury within the legal system is growing, as evidenced by
the recent creation of the journal Psychological Injury and
Law in 2008. Although voluminous amounts of research have
examined the prevalence and impact of psychological disorders, much less research has specifically examined how legal
decision makers perceive psychological injury evidence, and
how this evidence impacts legal judgments. This legal and
empirical review strongly suggests that psychological injury
claims are often mistakenly devalued by courts, legal officials,
and jurors alike. This underappreciation and asymmetric difficulty to obtain fair recovery for valid psychological injury
claims compared to physical injury is most likely due to
erroneous perceptions about the causes, consequences, and
legitimacy of these injuries. Although legal decision makers
may perceive psychological injury claims as lacking objectivity, severity, and credibility, these beliefs have little empirical
support, and psychologists increasingly have the means to
attribute malingering, feigning, and other response biases by
objective tests and other established methods (Kane &
Dvoskin, 2011). More research is needed to examine whether
these perceptions about the lack of validity of psychological
injury claims also exist for jurors.
There are many gaps in the literature regarding the perceptions of psychological injury, and the resulting effects on legal
decisions. Additional research should further examine jurors’
preconceived notions of psychological injury and work towards establishing a reliable and valid measure to assess
jurors’ perceptions of psychological injury severity. This research would help unravel the dimensions that comprise and
distinguish mild from severe psychological injury for triers of
fact and laypeople, which will inform expert testimony and
judicial decision-making. Although recent research suggests
that psychological injury evidence affects liability and damage
decisions, more research is needed to replicate these findings,
especially in more ecologically valid contexts. Future applied
studies should examine other factors that affect how jurors
perceive psychological injury, whereas future theoretical studies should establish a framework to connect these variables.
Continued investigation of these topics will help improve
knowledge and understanding of psychological injury in legal
officials, triers of fact, and other relevant stakeholders to further
increase its legitimacy and importance within the legal community, and the ability of psychologists to correctly diagnose
its presence, absence, or malingered presentation in court.
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