May a Judge Render a Scientific Opinion Without Expert Advice?

The facts in M.A. v M.G. (in the Superior Court of Pennsylvania, No. 965 2015), as we know them, are as follows:

The parents, married in Georgia in 2000, have two children who, at the time of the Superior Court hearing, were ages 11 and 4. The parties relocated to Istanbul, Turkey. In the fall of 2012, the mother asked that the father leave the house, claiming that he was trying to kill her. The father asserted to the Turkish authorities that the mother's allegations were untrue and he asked that she be committed to a mental institution, but the Turkish authorities took no action on that request. Ultimately, with the intervention of the Turkish courts, the mother was granted custody and the father was granted an alternate weekend schedule with the children.

One year later, the mother filed for and was granted the Turkish version of a Protection from Abuse (PFA) order, for herself alone. The father maintained his custody rights over the children (no hearing was held concerning this custodial finding).

In the fall of 2013, first the mother, then the father, relocated to Pittsburgh with the children. There, the mother requested that the Turkish Order of Custody be enforced in Pennsylvania. She also filed a PFA, while the father filed for primary custody of the children, as well as for partial legal custody. Pending the hearings, the father was granted supervised visits on alternate weekends with the children.

Five days of hearings were held, beginning in October 2014 and extending through March 2015. The court ordered that the mother undergo a mental health evaluation by a psychologist. At the final hearing, in March 2015, the psychologist who conducted that evaluation reported to the court that he “specifically did not find any mental health issues” in the mother.

Decision Rendered, Without Expert Advice

A judge always has the power, after hearing an expert's testimony, to determine the weight of the evidence provided.

Several important cases have been decided on how to hear and weigh expert scientific evidence, the most important of which is the 1993 U.S. Supreme Court case of Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579 (1993). The Daubert case set out the factors needed for admissibility of scientific evidence; in essence, in order to be admissible, the evidence must qualify as reliable scientific knowledge. This landmark case effectively overturned the decision in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), with the Court declaring that the Federal Rules of Evidence had supplanted Frye as the standard for admissibility of evidence. Today, 85% of the states use the Daubert interpretation on the admissibility of scientific evidence as their guide. Pennsylvania, in which the M.A. v M.G. case was decided, happens, however, to be one of the few remaining states that relies on the original Frye holding.

In M.A. v M.G., the judge did not comment on the admissibility of the chosen expert's testimony ' neither under Frye nor under Daubert. Instead, despite the testimony of the mother's mental health examiner and the fact that there was no contrary expert testimony presented ' nor, indeed, any other mental health evidence of any kind presented concerning the mother ' the court found the mother to be suffering from severe mental health issues. The judge had spontaneously formulated this opinion based on what she said was the disparity between the testimony of the mother and the evidence presented.

The mother took an appeal from the hearing court's finding, and the initial three-judge appeals panel upheld its orders. The Supreme Court of Pennsylvania has now granted her request for review, with the specific purpose of answering the following question: “Whether it is within the province of a trial court to diagnose a litigant with mental illness when the record is devoid of any diagnosis by mental health professional or testimony by a mental health professional to support the diagnosis.”

The Import

If this order by the M.A. v M.G. court is upheld, it would have wide-ranging implications for all family cases.

Although we know that in many ways the court is all-powerful, we must also ask: Does a court have the power to make a scientific determination crucial to the ultimate outcome when no supporting expert evidence has been presented?

The DSM V (Diagnostic Statistical Manual, Fifth Edition), promulgated by the American Psychiatric Association (APA), describes a wide assortment of mental illnesses. In it, the APA sets forth the factors that must (or sometimes may) be present in order to make any diagnosis of mental disease or disorder. But nowhere in the manual's scientific vocabulary is there such a thing as a person with “severe mental health issues” without some sort of diagnosis.

When the case of M.A. v. M.G. goes before the highest court in Pennsylvania, it will have the opportunity to explore whether a judge is capable of, and authorized to, make an independent finding on a scientific subject, absent the presentation of scientific evidence to support that decision. Should this be allowed? We shall have to await the findings of the Pennsylvania Supreme Court before we have an answer to that question.

Lynne Z. Gold-Bikin, a member of this newsletter's Board of Editors, is a partner at Weber Gallagher.