In Rodriguez v Wal-Mart, A-4137-14T3, the App. Div. held for the first time in NJ that a defense expert (non-mental health professional) could not opine that plaintiff had symptom magnification. The appellate court ruled that a qualified expert can provide factual testimony recounting observations or physical movements or responses to testing during the examination subject to R. 403 (probative v. prejudicial analysis). Also, the qualified expert is not precluded from testifying that the plaintiff’s subjective complaints are inconsistent with objective medical test results or findings. Finally, the appellate court did not foreclose the admission of opinion testimony concerning symptom magnification or similar concepts from a qualified expert in a non-jury case, again subject to R. 403. Thus, the appellate court held: “that such testimony at a civil jury trial should be categorically disallowed under N.J.R.E. 403.”
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