Part 1 of Psychologists that go Psycho refers to just two cases, In the matter of Anna Mae He (which was the subject of a post two weeks ago), and Malmquist v. Malmquist.
In Anna Mae He, the Tennessee Supreme Court, in its opinion reversing the decision of Judge Childers, make two stinging comments about Judge Childers’ findings about the testimony of the psychologists:
Several psychologists testified at the trial. None of these witnesses opined that harm would result from continued contact between A.M.H. and her parents or from expanded visitation. Dr. Goldstein, the court-appointed expert, testified that he did not conduct evaluations of the child or the parties (even though evaluations were ordered) and that he did not investigate the attachment between A.M.H. and her parents prior to writing his report. On September 23, 2003, he did monitor the videotaped session with the parents and A.M.H. Dr. Goldstein testified, “I did assume that there was very little attachment to the [parents] based upon the information that I had and based also on my knowledge of psychological development.” Dr. Goldstein did not bring all of his notes to the trial. He testified that he was unable to say whether visitation should take place and unable to give any opinion as to custody. Dr. Goldstein limited his opinion to the best interest of the child, and even as to that topic, he would not render an opinion on whether having no further contact with her parents would be in A.M.H.’s best interest. The chancery court found Dr. Goldstein to be “highly qualified, highly respected . . . . Very knowledgeable, honest and a forthright witness.”
At the trial, the parents of A.M.H. introduced evidence from three psychologists and a Chinese culture expert to refute the inference that the parents intended for the Bakers to raise A.M.H., to refute the opinion that A.M.H. had no attachment to her parents, and to show that the parents presented no abnormal psychological traits. The psychological experts offered by the parents pointed out what they perceived to be flaws in Dr. Goldstein’s process and report. Dr. John Robert Hutson testified that he had reviewed Dr. Goldstein’s deposition and report and that Dr. Goldstein did no evaluations of the parties. Dr. Hutson opined that there should be ongoing contact between the parents and A.M.H. Both Dr. Hutson and another psychologist, Dr. John Victor Ciocca, reviewed the video of the parents visiting with A.M.H. and found that the child responded favorably to the parents and the parents acted appropriately. The testimony offered by the parents was critical of the court’s prevention of visitation with the child and of Dr. Goldstein’s failure to perform certain evaluations. However, the court found this testimony to be “of little assistance to the court” because Drs. Hutson and Ciocca had never personally interviewed A.M.H.
(emphasis added).
Well, the “highly qualified, highly respected” Dr. Goldstein “did not conduct evaluation of the child … even though evaluations were ordered” either, so why should his testimony be credited when he did not follow the court’s orders? Of course Drs. Hutson and Ciocca were critical of the court preventing visitation between Anna Mae and her biological parents, and as I stated in the Anna Mae He blog, Judge Childers was scornful to attorneys that publicly decried his decision, so it is no wonder that he discredited the testimony of two of Shelby County’s more prominent and respected psychologists since they were critical of the court preventing contact between Anna Mae and her real parents.
In Malmquist v. Malmquist (the conflict and problems with the GAL in this case were discussed in the GALs Gone Wild blog), another court-appointed psychologist (who is supposed to be a neutral, court-appointed expert) “crossed the line” when he accepted payments from the father to assist the father in countering the testimony of two other psychologists. Even so, the trial judge, Jerry Stokes, denied the following motion to strike the Dr. Steinberg’s testimony. The following motion explains it all.
MOTION TO STRIKE TESTIMONY OF DR. STEINBERG
AS IT RELATES TO DEFENDANT DANIELLE MALMQUIST
Defendant Danielle Malmquist, by and through counsel, for her Motion to Strike Testimony of Dr. Steinberg as it Relates to Defendant Danielle Malmquist, in that Dr. Steinberg has crossed the line from being a court-appointed neutral to being a retained expert for the Plaintiff, and as grounds thereto, Defendant states as follows:
1. This Court entered a Consent Order appointing Dr. Steinberg as the third court appointed expert in this cause. Said order stated, in pertinent part, that:
Dr. Fred A. Steinberg, PhD. Shall perform a comprehensive psychological evaluation of the parties for purposes of assisting the Court regarding the mental and emotional status of the parties relative to the divorce and fitness for parenting the minor children.
2. Pursuant to subsequent orders, Plaintiff Shem Malmquist was required to pay both parties’ share of the retainer for Dr. Steinberg, which was $5,000.00 total.
3. Even though Dr. Steinberg could have simply come to Court and given testimony regarding his findings, Dr. Steinberg did significantly more at the request of the Plaintiff, for which Dr. Steinberg received substantial payments from the Plaintiff. This included preparing an elaborate slide show regarding Dr. Steinberg’s “findings”, which during the trial of this matter, Dr. Steinberg had on the screen a so-called chart of alleged peaks of Defendant’s MMPI-2 results, for an extended period of time even though said chart was not being discussed.
4. Plaintiff paid Dr. Steinberg an additional $8,750.00 to prepare for trial.
5. Plaintiff also paid Dr. Steinberg an additional $1,700.00 to sit in and listen to the testimony of the first Court appointed expert, Dr. Ciocca, as well as Defendant’s treating psychologist, Dr. Aronov. Further, during Dr. Ciocca’s and Dr. Aronov’s testimony, Dr. Steinberg was in continual communication, in the courtroom, giving counsel and advice to Plaintiff’s attorney for the purposes of cross examining Dr. Ciocca and Dr. Aronov. Said activities were not within the scope of Dr. Steinberg’s appointment as a court appointed expert.
6. The order appointing Dr. Steinberg merely required Dr. Steinberg to “perform a comprehensive psychological evaluation of the parties for purposes of assisting the Court regarding the mental and emotional status of the parties relative to the divorce and fitness for parenting the minor children.”
a. Said order DID NOT provide for Dr. Steinberg to listen to the testimony of the first court appointed expert, Dr. Ciocca, for the purpose of assisting Plaintiff’s attorney to challenge the first court appointed expert’s findings.
b. Said order DID NOT provide for Dr. Steinberg to listen to the testimony of Defendant’s treating psychologist, Dr. Aronov, for the purpose of assisting Plaintiff’s attorney to cross-examine the treating psychologist’s testimony and diagnosis.
7. In addition to the above-mentioned payments, Plaintiff paid Dr. Steinberg another $1,600.00 to appear and testify at trial regarding his so-called “findings”. Critical to the trustworthiness of Dr. Steinberg’s findings are:
a. When first cross-examined by Defendant’s counsel, Dr. Steinberg was asked whether or not some items of the MMPI-2 were omitted by Defendant, and if Dr. Steinberg later met with Defendant and filled in the omitted items, to which Dr. Steinberg answered, “Yes”. Only when Defendant’s counsel asked the follow-up question that by so-doing, the entire MMPI-2 evaluation was invalid, did Dr. Steinberg start scurrying through his notes and conveniently changed his testimony to “No”.
b. When asked about Dr. Steinberg’s scoring of the MMPI-2, Dr. Steinberg testified that he “hand-scored” the MMPI-2. Dr. Aronov, a renowned expert on the MMPI-2, testified that hand-scoring can result in error rates as high as twenty percent (20%). Further, there are numerous erasure marks of the actual MMPI-2 answer sheet.
c. When questioned about certain questions on the MMPI-2 regarding whether a person believed she were being followed all of the time, or if a person believed is somebody is out to get her, Dr. Steinberg became very evasive. The questioning involved elevations on the Defendant’s paranoia scale, and if the facts showed that people were actually following the Defendant, would that result in a false elevation of the paranoia scale. Defendant’s counsel asked DR. Steinberg the same of similar question five times, and then the Court asked a similar question, and Dr. Steinberg’s responses continually evaded the question asked. Such evasion clearly DID NOT assist the Court, as required by this Court’s order.
d. When asked questions regarding the about the reliability of the Rorschach test in a forensic setting, and the subjectiveness of said test, Dr. Steinberg became very evasive, and refused to answer questions regarding his interpretations of the Defendant’s answers, as well as how certain responses would be scored. Dr. Steinberg testified the psychologists were “sworn to secrecy” regarding answering such questions. Both Dr. Ciocca and Dr. Steinberg testified that psychologists were not sworn to secrecy regarding such questions, and Dr. Ciocca further testified that such questions would have to be answered in order to meet Daubert requirements. Accordingly, this in and of itself INVALIDATES Dr. Steinberg’s testimony and findings under the Daubert rule.
8. Plaintiff’s counsel had stated several times that Plaintiff may recall Dr. Steinberg in rebuttal to Dr. Ciocca, the first court appointed expert, and Dr. Aronov. The order appointing Dr. Steinberg clearly does not anticipate one court appointed expert rebutting the testimony of another court appointed expert. Further, said order does not anticipate a court appointed expert rebutting a treating psychologist. Said activities clearly exceed the scope of Dr. Steinberg’s appointment and show that Dr. Steinberg is not a court appointed neutral, but rather a retained expert for the Plaintiff.
9. The “consent order” appointing Dr. Steinberg was for the purposes of Dr. Steinberg acting as a court appointed neutral, not an advocate for the Plaintiff. Defendant DID NOT consent to an evaluation by the Plaintiff’s retained expert. Since Dr. Steinberg has clearly crossed that line, both legally and ethically, said “consent” in invalid, and any testimony, testing, and “findings” as the result of said consent must be stricken.
10. Since Dr. Steinberg refused to answer certain questions regarding the Rorschach test, since Dr. Steinberg hand-scored the MMPI-2, since Dr. Steinberg was evasive to questioning, including the Court’s questions, regarding some of the questions and results of the MMPI-2, and since Dr. Steinberg changed his testimony regarding Defendant omitting certain questions on the MMPI-2 and whether Dr. Steinberg later filled in the answers, Dr. Steinberg’s testimony, testing, and “findings” do not meet the minimal requirements of Daubert.
FROM ALL, DR. Steinberg’s testimony, test results, and “findings” as they relate to
Defendant Danielle Malmquist should be stricken and excluded.
In both cases, the old axiom is clear, “money talks”.
End of Part 1.
No comments:
Post a Comment