Survivors of a Commuter Train Crash

Case Type: Multi-plaintiff

In another case involving a train crash, the defense counsel retained a team consisting of Mark I. Levy and a forensic psychologist to examine the sub-population of litigants who were passengers on the commuter train and also claimed that they had suffered severe emotional trauma. The team evaluated approximately 18 of the passengers. One person had suffered a depressed skull fracture with slight internal hemorrhaging. Others had experienced minor head trauma but were alleging traumatic brain injury. Others claimed PTSD and serious depression.

The findings were both enlightening and surprising. The one individual with a depressed skull fracture did suffer some limited cognitive impairment consistent with a diagnosis of mild traumatic brain injury. However, he also evidenced considerable emotional overlay, as well as a strong suggestion of secondary gain motivation.

Other passengers who claimed to have suffered some degree of head trauma showed no objective signs of any actual brain injury, nor any signs of significant emotional damage. The team discovered that one individual suffered from a factitious disorder, also known as Munchausen Syndrome, causing her to seek serial treatments from doctors, including actual surgery on several occasions, based upon specious symptoms that she cleverly feigned, not primarily to obtain compensation but rather to assume the role of a seriously ill patient as she had done on numerous prior occasions during her life. Invariably, factitious disorders reflect longstanding patterns of maladjustment in which a patient equates medical care with “love” and “nurturance.” Patients with factitious disorder are so motivated to be sufficiently ill to justify receiving treatment that they may do serious harm to themselves in order to achieve that goal. The disorder has its own natural course. In this case the symptoms were a “convenient focus” to seek treatment and bore little or no causal connection to the train crash. The assessments illuminated other noteworthy findings that directly affected the final outcome of damages claims. One plaintiff’s actual presence on the ill-fated train was seriously doubted. There was some reason to believe that he had witnessed the crash then had jumped on the train to file a claim. During the psychiatric examination, which can be far more open ended than a tightly structured and defended deposition, the forensic psychiatrist learned that he had a criminal record including a conviction for fraud. The team concluded that he was probably malingering his so-called “signs” of emotional injury.


Evaluating emotional damages requires an ethical, scientific approach whether a case involves a single plaintiff or is a mass tort case. Many psychiatrists, psychologists, or related health professionals qualify as experts to testify before a judge or jury. However, defense counsel should consider in deposition or in trial cross-examination exploring an expert’s qualifications to render an opinion of a plaintiff’s mental health based on his or her own interpretation of test results. Consider exploring to what extent an expert blindly accepted a plaintiff’s history or otherwise approached the task as a “supporter,” rather than as a forensic examiner. Inquire about the thoroughness of a psychiatric or psychological examination using the elements of the approach discussed in this article. To assure the most accurate result, make sure that your experts have all available information about an accident and the claimant. Further, keep in mind that in mass tort litigation, forensic psychiatrists and forensic psychologists have a unique opportunity to assess members of a claimants’ group globally, as well as individually, which can not only add support to their opinions and conclusions, but also can result in economies of scale.