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360° of PTSD: Facts vs. Fiction in Litigation

Laurie Kuslansky
By: Laurie Kuslansky

Juries, Jury Consulting, Science, Psychology, Jury Consultants, Voir Dire, Jury Selection

 

ptsd litigation jury consultingBy Laurie R. Kuslansky, Ph.D.
and Robin A. Kaynor, MSW

About 8% of Americans are estimated to have suffered from PTSD in their lifetime;[1] 3.6% a year of people ages 18 to 54 (5.2 million people in the U.S.) have PTSD.[2] 

However, considering the increasing percentage of Plaintiffs claiming it in cases involving personal injury, employment, as well as natural and man-made disasters (such as significant crashes, serious attacks and the like), one might think the incidence is much higher. Not all those who claim to have PTSD actually have it.  For a comprehensive understanding of the steps to detect those who don’t, an excellent resource is Detecting Malingering and Deception: Forensic Distortion Analysis.[3]  Even relatively minor events or ones incapable of causing PTSD have not prevented plaintiffs from making the claim.  Why?
 

When PTSD pays, it pays well.

Based on data for 1,369 civil jury verdicts across all jurisdictions and case types, 2/3 of Plaintiffs received compensation for PTSD; about 1/3 got a million dollars or more:[4]

  • 29% were awarded $1 million or more
  • 14% were awarded $500,000 to $999,999
  • 22% were awarded $100,000 - $500,000
  • 35% were awarded $0 - $99,999

But what are the facts? 

This is a brief primer to assist understanding and teaching jurors so they can judge using reality, not myths, and so that you can consider it during voir dire to maximize jury selection.
 

What is Post-Traumatic Stress Disorder (“PTSD”)? 

Traditionally, PTSD was a disorder seen in combat veterans (previously called “shell shock,” “combat fatigue” or “battle fatigue”), commonly marked by intrusive thoughts and flashbacks. However, with the public’s growing awareness of the long-term effects of certain stress-related events, claims of PTSD are being seen more frequently in civilian life and in the legal system. In an effort to shed light and awareness of this disorder, the following is presented to define and clarify PTSD.

PTSD can markedly impact a person’s life, long after the initial traumatic event took place. This condition is not only an acute event, but can last 40 years or more in some instances, especially if unrecognized and untreated.[5]

When genuine, whether combat PTSD or civilian PTSD, it is a catastrophic problem.  Jurors old enough to recall the Vietnam War are among the least likely to accept such claims alleged in what are perceived to be insufficiently stressful circumstances, recalling first becoming aware of PTSD as a result of combat in that war. 

PTSD is not the reaction to a broken fingernail, a minor fender-bender, slipping on a banana peel or someone snickering at work. It is in reaction to a truly traumatic event that involves actual exposure first- or second-hand to death, or the threat of death through violence, torture, terrorist attacks, assaults (including sexual assaults), incarceration, natural and man-made disasters, serious accidents, and a variety of traumatic events that may lead to a fracture with one’s life or the life of a loved one
 

Definition and Symptoms:

Like heart disease or many other physical illnesses, you either have PTSD or you don’t.  There is no in between or “PTSD-Light.”  For medical and legal purposes, in order to be given a diagnosis of PTSD, an individual must fulfill six specific criteria (A-F) outlined in the DSM-5TM,[6] considered the bible of psychiatric and psychological diagnostic criteria.  As the editions of the DSM have evolved since 1980 (in the DSM-III TM), the criteria have become progressively narrower in some respects to prevent over-diagnosis or misdiagnosis.  However, the latest edition (DSM-5TM on May 18, 2013) broadened the gateway by adding exposure that is indirect or second-hand (e.g., bystanders, witnesses, family members). While previous editions considered it to be an anxiety disorder, it was reclassified under Trauma- and Stressor-Related Disorders in this latest edition.

Criterion A is the “event” or “gateway” criterion, without which there is no reason to assess the rest.  It is a “do not pass go” criterion.  No doubt, in litigation, there will also be a battle of the experts.  The criteria which follow the first criterion pertain to re-experiencing, avoidance or numbing, and increased arousal in reaction to the event. In a lawsuit, jurors are likely to start their assessment by questioning whether the “event” claimed by the plaintiff was sufficiently stressful and grave to cause PTSD. 

 

The 6 criteria of PTSD are: 

  • Criterion A:  Exposure to actual or threatened death, serious injury, or sexual violence in one or more of the following ways:

    • Directly experiencing the traumatic event(s)
    • Witnessing, in person, the event(s) as it occurred to others
    • Learning the traumatic event(s) occurred to a close family member or close friend;
      • In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental; experiencing repeated or extreme exposure to adverse details of the traumatic events(s).
         
  • Criterion B:  Re-experiencing the traumatic event over and over again, manifesting in:

    • Recurrent distressing dreams that are often literal representations of the traumatic event
    • Flashbacks reliving the traumatic event as opposed to the memory of the event
    • Intense and prolonged psychological and physiological responses to cues both internal and external that symbolize or resemble the event
      • Obsessive thoughts
      • Severe anxiety
      • Racing heart rate
      • Elevated blood pressure
      • Perspiring.
         
  • Criterion C:  A victim of PTSD will deliberately avoid people, places, conversations, or situations that will trigger memories of the event.

For example, a woman who is sexually assaulted by an employee of a large supermarket chain in the store parking lot may not want to go food shopping in that chain market any longer, may become terrified and fearful when seeing advertisements for that particular supermarket chain, and may experience flashbacks of the event on a regular basis.

  • Criterion D: 

    • The person may be unable to remember certain specifics about the event.
    • He or she may lose interest in activities or people that previously brought them pleasure. 
    • There may also be increased negative feelings about oneself and the world resulting from the trauma and thoughts about the event may become distorted.
       
  • Criterion E & F:  Victims of PTSD, for more than one month, also:

    • Become vigilant
    • Startle easily
    • Can engage in reckless or self-destructive behaviors
    • Have difficulty falling asleep, staying asleep, or experience restless sleep.

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Who gets PTSD and who “gets” it on the jury?

Most people (over 60%) experience a traumatic event in their lifetime, but most do not experience PTSD (about 7% do).  Among the major causes, exposure to mass violence produces PTSD at a higher rate (67%) than exposure to natural disasters or other types of traumatic events.[7] 

What increases susceptibility to develop PTSD other than genetics?[8]/sup>
  • Being female
  • Low socio-economic status
  • Immigrant status
  • Being divorced or widowed
  • Being unemployed
  • Being elderly, adolescent or a child at the time of the trauma
  • Having lower education
  • Sexual assault, especially at an early age
  • Pre-existing mental health problems, especially in women.[9]
  • Unresolved childhood trauma[10]  
  • Authoritarian beliefs and ethnocentrism, related to a defensive style of coping[11]
  • Instability and lack of resources
  • Having parents/first-degree relatives with mood, anxiety or substance use disorders[12]
  • Lack a sense of social support
  • Severity of exposure
  • Severe chronic pain[13]
  • Lack of internal “locus of control”[14] 

    • People who believe that luck or forces outside their control are responsible for their circumstances in life (victim/blamers) lack internal locus of control.  In contrast, people who take personal responsibility for their lives, whether credit or blame, have internal locus of control.  They take whatever actions they can to have control, accept what they cannot, and are less likely to get or credit PTSD.
       

The incidence and causes of PTSD differ by gender:

  • Women are twice as likely as men to develop PTSD (10.4% vs. 5%). 
  • Causes of PTSD differ for men and women[15]:
  • In women, it is more likely as a result of sexual assault (rape) or child sexual assault, physical abuse, threat with a weapon and physical attack;
     
  • In men, it is more commonly the result of industrial/construction accidents, physical assault, combat disaster, or witnessing death or injury. 

 

What make one less likely to develop PTSD?

  • Above-average cognitive ability.[16]
  • Being resilient and not feeling vulnerable, which may include:[17]
    • Good self-esteem
    • Trust
    • Resourcefulness
    • Self-efficacy
    • Internal locus of control
    • Secure attachments
    • Sense of humor
    • Self-sufficiency
    • Sense of mastery
    • Optimism
    • Interpersonal abilities (social skills, problem-solving skills and impulse control)
    • Safety
    • Religious affiliation
    • Strong role models
    • Emotional sustenance: gets understanding, companionship, sense of belonging and positive regard from others

When you understand just how often PTSD occurs in civilian life and how devastating the results may be, you realize it is a true disorder that needs to be addressed just as seriously as physical illnesses that occur in life.  However, if a claimant shows no significant impairment of functioning in work, social or family life, it is highly unlikely that they are suffering from genuine PTSD. [18]

 

What about the jury?

Ironically, being a juror on certain types of cases (especially graphically violent criminal ones) can cause some jurors to be “vicariously traumatized”[19] and experience PTSD as well.[20]

There are people who believe all things psychological and others who dismiss psychology as entirely bogus.  Those with positive personal or professional experience in the mental health arena are more receptive than those who equate therapy with voodoo.  It is not uncommon for those most in need of such help to be most threatened by it and thus, the most in denial and resistant to it. 

Voir dire is a critical opportunity to explore, to the extent permitted by the judge, prospective jurors’ attitudes about psychology and its offspring – emotional distress, stress, anxiety and the like.  Detractors tend to be the most vocal at rejecting such notions, so it behooves litigators to elicit their responses to the subject in cases involving claims of PTSD, as well as their characteristics and experiences that speak to their sense of control, resilience, stability and vulnerability.  Remember that you want to focus on detractors to your side (Plaintiffs need to reveal disbelievers in emotional claims and defendants need to reveal believers.) 

 

Good questions to reveal bias relating to PTSD:

  • Some people believe that psychological injuries are just as real as physical ones.  Others think that psychology is not a real science, so they wouldn’t give much credit to testimony about psychology. Which one describes your feelings about this better?  Why?

    • Have you ever had a traumatic experience that left a lasting impression on you?

      • If so, what effect did that have on you and how did you deal with it?
      • (To respond privately) Have you ever considered seeing a psychotherapist for yourself and/or someone close to you?

        • If so, who was it for and was it helpful or a waste of time and money?  Why?
        • Have you or anyone close to you ever served in active combat?
        • Are you or a close family member a firefighter, in law enforcement, a corrections officer[21] or a first responder of any kind?
        • Have you or anyone close to you ever experienced any of the following?

          • Been the victim of a violent crime?
          • Serious injury in an accident of any type?
          • Took family leave to care for a loved one?
          • Had an immediate family member diagnosed with a terminal illness?
          • Survived a natural disaster such as an earthquake, tornado or flood?
          • Survived a fire?
          • Survived a life-threatening illness?
          • Been a POW?
          • Been a victim of the holocaust?
          • Experienced hardships in the past few years, such as divorce, loss of a spouse or close family member, hospitalization, loss of a job or home? 

In general, prospective jurors with psychological traits that make plaintiffs more likely to have PTSD may themselves have greater empathy and ability to identify with such claims (as in, “I know what it is like”), whereas prospective jurors with traits descriptive of people less susceptible to developing PTSD or with direct exposure to people who actually have it based on more extreme triggers than those claimed by the plaintiff (e.g., active combat, law enforcement, firefighters) may be more likely to reject it in others (as in, “I don’t get it.”).

 

Other articles on A2L Consulting's site related to voir dire questions, jury selection and jury consulting:

jury consulting trial consulting jury research



[1] U.S. Department of Veterans Affairs. (2007): How Common is PTSD? National Center for PTSD.

[2] Ibid.

[3] Hall, Harold V.  and Poirier, Joseph. (2000): Detecting Malingering and Deception: Forensic Distortion Analysis, Second Edition. Boca Raton: CRC Press LLC. ISBN-13: 978-0849323256

[4] Zarins, Jury Verdict  Review & Analysis at http://www.jvra.com/verdict_trak/professional.aspx?page=1&search=55&verdict=1&jurisdiction

[5] Black, Donald W., M.D. and Andreasen, Nancy C., M.D., Ph.D., (2001): Introductory Textbook of Psychiatry, 3rd edition. (pp. 335-340). ISBN-13: 978-0880489461. Arlington: American Psychiatric Publishing, Inc.

[6] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5TM) (2013): Arlington: American Psychiatric Publishing, Inc. (pp. 271-28). ISBN 978-0-89042-554-1.

[7] Anxiety and Depression Assoc. of Am.: Post-Traumatic Stress (PTSD) at http://www.adaa.org/understanding-anxiety/posttraumatic-stress-disorder-ptsd?gclid=CL6j9Z2NkrsCFYNxOgodQHYAAQ

[8] Ahmed, Ayesha S. Post-traumatic stress disorder, resilience and vulnerability. Advances in Psychiatric Treatment. The Royal College of Psychiatrists. Online ISSN:  1472-1481.

[9] Stuber, J., Resnick, H. & Galea, S. (2006): Gender disparities in posttraumatic stress disorder after mass trauma. Gender Medicine (Vol. 3, pp. 54–67).

[10] Stovall-McClough, K. C. & Cloitre, M. (2006): Unresolved attachment, PTSD, and dissociation in women with childhood abuse histories. Journal of Consulting and Clinical Psychology (Vol. 74, pp. 219–228).

[11] Hobfoll, S. E., Canetti-Nisim, D. & Johnson, R. J. (2006): Exposure to terrorism, stress-related mental health symptoms, and defensive coping among Jews and Arabs in Israel. Journal of Consulting and Clinical Psychology (Vol. 74, pp. 207–218).

[12] Davidson, J., Swartz, M., Storck, M., et al (1985): A diagnostic and family study of posttraumatic stress disorder. American Journal of Psychiatry, 142, 90–93.

[13] Dahl, S., Dahl, C. I., Sandvik, L., et al (2006): Chronic pain in traumatized refugees. Tidsskrift Nor Lægeforen (Vol. 126, pp. 608–610).

[14]  Grossman, Dave. Preparation, Internal Locus of Control, and those who Don't get PTSD.

Journal of Law Enforcement/Volume 1, Number 3; www.jghcs.info [ISSN 2161-0231] (Online)

[15] Kessler, R. C., Sonnega, A., Bromet, E., et al. (1995): Posttraumatic stress disorder in the National Comorbidity Survey. Archives of General Psychiatry, (Vol. 52, pp. 1048–1060).

[16] McNally, R. J. (2006): Cognitive abnormalities in post-traumatic stress disorder. Trends in Cognitive Sciences, (Vol. 10, pp. 271–277).

[17] Ahmed, Ayesha S. Ibid.

[18] Levy, Mark I., M.D. Stressing The Point: When is a Post Traumatic Stress Disorder Claim Legitimate… and When Is It Not at http://expertpages.com/news/ptsd.htm

[19] Rivas, Anthony. Vicariously Traumatized, Jurors In Murder Trials May Experience Symptoms Similar To PTSD, Medical Daily, July 14, 2013. http://www.medicaldaily.com/vicariously-traumatized-jurors-murder-trials-may-experience-symptoms-similar-ptsd-247653

[20] N, Kaplan, Stanley M. and Winget, Carolyn. (1992): The Occupational Hazards of Jury Duty.  Bulletin of the Am. Acad. of Psychiatry Law (Vol. 20, No. 3, pp. 325-333).

[21] Mitchell, Paula. The Weight of Capital Punishment on Jurors, Justices, Governors, & Executioners, Oct. 25, 2013 at: http://verdict.justia.com/2013/10/25/weight-capital-punishment-jurors-justices-governors-executioners#sthash.mkRIgaRq.dpuf

http://verdict.justia.com/2013/10/25/weight-capital-punishment-jurors-justices-governors-executioners

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