Trial Courts Can Reject Unrebutted Expert Opinion

Facts of the Case

Connecticut state troopers Scott Menard, Darren Connolly, and Robert Zdorjeski sustained injuries during a traffic stop when an intoxicated driver collided with one of their police cruisers. The collision resulted in the parked vehicle making physical contact with the troopers. They were ambulatory after the accident and transported for medical evaluation. The troopers filed separate but nearly identical complaints against the state of Connecticut, alleging that they sustained physical injuries during the accident and that they were entitled to underinsured motorist benefits from the state. In addition, they alleged that because of the accident, they had PTSD.

The troopers’ cases were consolidated for trial. At the trial, each trooper testified that the accident affected them physically and mentally, reducing their ability to fulfill employment obligations. They also presented medical evidence of treatment and assessment from a licensed professional counselor, Jennifer Honen. Ms. Honen was both the expert witness in the case and the treating clinician for the troopers. She testified that she diagnosed the troopers with PTSD. She was asked how she evaluated for malingering. She explained she would consider malingering only if there were subjective “red flags” such as “odd…personality or character strategy… or different reports…of stormy and short relationships…a characterological disorder” (Menard, p 1034). She testified that she presumed the troopers’ reports of PTSD symptoms were truthful in part because of an absence of these red flags. Ms. Honen was also aware of psychological tests for malingering but stated that she did not administer them because she was not a psychologist. She stated that she assumed that the troopers’ descriptions of their symptoms were truthful. She did not testify about factors that weighed against malingering.

The trial court issued a joint memorandum of decision, determining that the troopers should be awarded limited damages, but the sum was only a fraction of what was sought. The court concluded that damages for PTSD were not compensable under the uninsured or underinsured motorist statute (UM and UIM), which allowed damages for “bodily injury” (Conn. Gen. Stat. Ann. §§ 38a-336a(1)(A), 38a-336(a)(2) (2022). The court noted that the troopers’ PTSD stemmed from a psychological and not a physical injury, so did not qualify as a bodily injury. The court also did not find Ms. Honen’s forensic evaluation sufficiently credible to establish a diagnosis of PTSD.

The troppers contended that Ms. Honen’s diagnosis of PTSD relied both on their reporting of symptoms and her clinical observations during treatment. The court rejected the troppers’ arguments, observing that their treatment notes “almost exclusively recounted symptoms” reported by the troppers rather than objective observations of signs or symptoms.

That all three plaintiffs had the same diagnosis was also questioned on cross-examination. Ms. Honen explained that people can withstand a certain amount of trauma before it becomes pathological. She was unable to adequately address how all three troopers reached their maximum capacity for processing trauma at the same time from the same event. Ms. Honen was also unaware of inconsistencies between the troopers’ report and factual circumstances. For example, she was unaware that Mr. Connolly’s report of having been run over by a car was factually inaccurate.

Mr. Menard and Mr. Connolly filed a motion to reconsider and for additur, challenging the trial court’s conclusion that they were not entitled to recover damages for PTSD. Mr. Zdrojeski withdrew from the appeal. The appeals court rejected the troopers’ arguments, agreeing with the lower court’s decision that there was no coverage for PTSD claims under the statute. It did not address the rejection of expert testimony regarding the PTSD diagnosis. The plaintiffs appealed to the Connecticut Supreme Court, contending that the trial court’s rejection of Ms. Honen’s expert opinion was impermissibly arbitrary because her testimony was unrebutted and also supported by the record.

Ruling and Reasoning

The Connecticut Supreme Court concluded that the troopers’ liability claims failed on grounds of “evidentiary insufficiency” because neither the testimony by Ms. Honen nor the diagnosis of PTSD was credible, and the trial court did not err in rejecting her testimony. The court emphasized that the fact finder “may accept or reject, in whole or in part” uncontradicted expert testimony (Menard, p 1035). The court pointed to several cases, including State v. Weathers, 260 A.3d 440 (Conn. 2021), which laid out factors for the trier of fact to consider when determining credibility, including the expertise of the witness, the opportunity to observe the evaluee, the thoroughness of the evaluation, and the reasonableness of the judgments made. Thus, the court concluded that the fact finder’s rejection of Ms. Honen’s testimony was not arbitrary as there was sufficient “basis in the record to support the conclusion that the evidence of the [expert witness] is unworthy of belief” (Menard, p 1035).

Ms. Honen’s failure to independently assess the truthfulness of the troopers’ reports of PTSD symptoms or assess for malingering made her testimony less credible. Furthermore, the court stated that “it may well be standard practice for therapists to presume the truthfulness of their patients’ reporting of PTSD symptoms for treatment purposes” but “such an assumption is not sufficient for purposes of a forensic assessment” (Menard, p 1035). The court described how an expert witness should consider other diagnoses and how malingering could be ruled out.

Furthermore, the Connecticut Supreme Court was not obligated to address the relationship of PTSD manifesting in physical form, which could potentially qualify the plaintiffs for UM and UIM as a form of “bodily injury.” The case was affirmed in part, reversed in part, and remanded.