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THE FRAUD OF PSYCHIATRIC TESTIMONY AND THE RAPE OF AMERICAN JUSTICE" BY MARGARET A. HAGEN, PH.D. PUBLISHED BY HARPER COLLINS, REGAN BOOKS, 10 E. 53RD ST., NEW YORK, N.Y. 10022-5299 212-207-7250. $25
Pain and suffering. Hedonic damages. Damages for fear of AIDS. What these all have in common is the proof for them offered in court by psychological experts. A new book decries this trend and takes dead aim at the realm of psychiatric and psychological testimony.
The title, "Whores of the Court," says it all. This is a book with an attitude, though it will likely find a receptive audience among risk and insurance professionals. The book's core message is that, over the past 25 years, America's legal landscape has become littered with a proliferation of psycho-legal cases.
Today, psycho-experts-psychologists, psychiatrists, counselors and social workers-testify with scientific certainty on almost every conceivable civil, criminal, judicial and legislative issue that touches on human behavior and mental functioning.
They testify about product liability, trademark infringement, fraudulent advertising and an almost endless variety of personal injuries. While the demand for such experts is great and the supply is huge, according to a new book by psychologist Margaret A. Hagen, the science behind it all is non-existent.
In "Whores of the Court," the author, a psychology professor at Boston University, delivers a scathing expose of the unrestrained excesses of psycho-experts in today's courtrooms and legislative chambers.
"The problems are not new," she writes. "What is new is the depth and extent of its acceptance by the older institutions of our society-by courts and police, judges and juries, legislators and policymakers. By people who should know better but don't."
She notes that in the United States in the mid-1970s, there was just one $1 million personal injury award per week on average. By 1990, though, there were 735 million-dollar awards and 750 in 1991. Nearly each of those verdicts included a component for psychic injury. Most risk managers know this all too well.
Citing many examples of fraudulent psycho-expertise, Ms. Hagen discusses:
Psycho-expertise as a big-money business in this era of multimillion-dollar personal injury awards.
How to protect against psycho-expert "hired guns."
Why courtroom psycho-expertise is often junk science.
Ms. Hagen believes the psycho-expert service industry generates more than $1 billion a year, giving some perspective as to why it's so entrenched.
In today's frenzied tort climate, Ms. Hagen's insights and views make for provocative reading by risk and insurance professionals. As is often the case with polemical tracts, however, Ms. Hagen is much stronger in her critique of the existing system than she is in proposing realistic solutions.
What is to be done about psycho-experts? She believes courtroom victories often are won by a battle of the experts, where the person with the most money wins. The only solution, she believes, "is to make sure your attorney understands the weaknesses of psycho-expert testimony and knows how to attack it. Don't go to court without this book!"
Say what? Most defense attorneys already are aware of the problem. Trouble is, many judges lack the guts to throw out tenuous cases at an early stage. They cop out by pronouncing matters "a question for the jury" or are afraid of being reversed on appeal. Only a few dismiss cases at a preliminary stage.
Perhaps Ms. Hagen hopes judges and legislators will read her book and be inspired to implement judicial reform. Some of this is already under way via the U.S. Supreme Court's decision in Daubert vs. Merrell Dow Pharmaceuticals in 1993. Clearly this decision-empowering judges to test the scientific validity of plaintiff theories-does not go far enough for Ms. Hagen.
Risk managers likely will respond, "Right on" to Ms. Hagen's arguments, but they likely will be unfulfilled by her murky plan for thwarting junk psychology in the courtroom.
Kevin M. Quinley is senior vp- risk services for MEDMARC Insurance Group and Hamilton Resources Corp. in Fairfax, Va.