Present: All the Justices
MICHAEL LEE FITZGERALD
OPINION BY
v. Record No. 061361 JUSTICE LAWRENCE L. KOONTZ, JR.
April 20, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In a jury trial held in the Circuit Court of Pittsylvania
County, Michael Lee Fitzgerald was convicted on two counts of
indecent liberties with a minor by a person in a custodial or
supervisory relationship, Code § 18.2-370.1, and one count of
object sexual penetration, Code § 18.2-67.2. In this appeal,
the sole issue we consider is whether the trial court erred in
permitting a licensed professional counselor to testify as an
expert witness that the alleged victim suffered from post-
traumatic stress disorder (“PTSD”).1
BACKGROUND
To resolve the limited issue presented in this appeal, we
need not recite the trial evidence that led to Fitzgerald’s
criminal convictions. The case arises from allegations,
supported by the Commonwealth’s evidence, that Fitzgerald
engaged in unlawful sexual acts with his stepdaughter (“the
1
We consider a similar issue with regard to expert
testimony by a licensed clinical social worker in Conley v.
Commonwealth, 273 Va. ___, ___ S.E.2d ___ (2007) (this day
decided).
victim”), who was under the age of thirteen years at the time.
The focus of our analysis in resolving the issue presented is
upon the challenged testimony of the Commonwealth’s expert
witness, Linda Giles.
At trial, the Commonwealth called Giles, a licensed
professional counselor,2 to testify as an expert witness. Giles
testified that she held a master’s degree in counseling in
addition to a bachelor’s degree. Additionally, Giles testified
that she had completed three years of clinical training, which
involves supervision by a licensed psychologist or a licensed
professional counselor. Giles related that, at the time of
trial, she had practiced as a licensed professional counselor
for nine years and that her “primary background” involved
working with children who were victims of abuse.
Giles testified that she first met with the victim and her
mother through a referral by Child Protective Services. Giles
explained that at that time her objective as a clinician was to
“determine symptomology and treat the symptoms.” She further
explained that “[w]hat I would do with someone with [the
2
Code § 54.1-3500 defines a “[p]rofessional counselor” as
“a person trained in counseling interventions designed to
facilitate an individual’s achievement of human development
goals and remediating mental, emotional, or behavioral disorders
and associated distresses which interfere with mental health and
development.”
2
victim’s] background would be to try and make her feel safe in
the world again . . . based on the symptoms that I was seeing
with her.”
Giles testified that she conducted six counseling sessions
with the victim after the initial meeting, and had an ongoing
professional relationship with her at the time of trial. During
the counseling sessions, Giles determined from the victim and
her mother that Fitzgerald “[a]llegedly . . . had an
inappropriate sexual penetration with [the victim] on her living
room floor when her mother was not there.”
Giles then testified that the victim “experiences
moderately severe symptoms of post traumatic stress disorder,”
which she defined as “a collection of symptoms that happen after
a traumatic event that has occurred that has made someone feel
horror, helplessness.” She stated that “any kind of
inappropriate sexual contact with a . . . child qualifies and
they relive the experience in all of their senses.”
At this point, Fitzgerald objected, stating that Giles was
not “clinically qualified to make that diagnosis.” Fitzgerald
asserted that a diagnosis of PTSD “has to be made by a doctor
and cannot be made by a licensed professional counselor.” The
trial court overruled Fitzgerald’s objection.
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Continuing her testimony, Giles stated that she uses the
Diagnostic and Statistical Manual of Mental Health Disorders
(“DSM”) as her standard for looking for symptoms and making a
diagnosis. She testified that the DSM “is the standard printed
by the American Psychiatric Association and [is] used by
psychologists, licensed professional counselors, [and] licensed
clinical social workers.” Giles explained that the DSM “is an
effort to organize symptoms and organize thoughts in such a way
that we can effect a treatment.”
Giles testified that she first encountered PTSD, which she
characterized as a “psychiatric diagnosis,” in her master’s
degree program but encountered it in “much more detail” during
her clinical training. She listed numerous symptoms
characteristic of PTSD, and stated that the victim reported or
displayed “most” of those symptoms. Giles testified that under
the specific diagnostic scoring system set forth in the DSM for
PTSD, the victim clearly met the criteria for PTSD and it was
“[n]owhere near” a close call.
On cross-examination, Giles reiterated that PTSD is a
“psychiatric diagnosis.” However, she did not agree that
psychiatric diagnoses are usually made by psychiatrists, again
stating that psychologists, licensed professional counselors,
and licensed clinical social workers are trained to use the DSM.
4
At the conclusion of the evidence, the jury found
Fitzgerald guilty of the charged offenses.3 Fitzgerald perfected
an appeal to the Court of Appeals.
A three-judge panel of the Court of Appeals concluded that
the trial court did not abuse its discretion in allowing Giles’
testimony because “Virginia law expressly permits professional
counselors to diagnose . . . mental, emotional, and behavioral
disorders” and “the evidence adduced at trial supported a
finding that Giles was, in fact, qualified to exercise that
diagnostic authority in this case.” Fitzgerald v. Commonwealth,
48 Va. App. 271, 276, 630 S.E.2d 337, 339 (2006). This appeal
followed.
DISCUSSION
Fitzgerald’s principal basis for making the assertion that
the trial court erred in permitting Giles to testify as an
expert that the victim suffered with PTSD is that a diagnosis of
PTSD is a “psychiatric diagnosis” and Giles is not a
psychiatrist. According to Fitzgerald, only a psychiatrist or
psychologist4 may qualify to give expert testimony regarding a
3
The jury found Fitzgerald not guilty of an additional
count of object sexual penetration.
4
On brief, while referring both to a psychiatrist, who is a
physician, and a psychologist, who is a non-physician,
Fitzgerald necessarily concedes that a psychologist may qualify
to render an expert opinion regarding a mental disorder. See
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diagnosis based on the mental disorders identified in the DSM
and, thus, licensed professional counselors, including Giles,
are categorically unqualified to give such testimony.
To support his contentions, Fitzgerald asserts that no
provision in Title 54.1, Chapter 35 of the Code, which is
entitled “Professional Counseling,” Code §§ 54.1-3500 through -
3515, enables a licensed professional counselor to engage in the
practice of psychiatry or psychology. Furthermore, Fitzgerald
notes that Title 54.1, Chapter 36 of the Code, which is entitled
“Psychology,” Code §§ 54.1-3600 through –3616, contains “no
mention of a licensed professional counselor or anyone other
than a psychologist.” Thus, Fitzgerald maintains that the
organization of the Code in this manner supports the conclusion
that psychology, and making related diagnoses, is a field of
expertise limited to psychiatrists and psychologists. We
disagree with Fitzgerald’s contentions.
It is axiomatic that in order to qualify to give expert
testimony a witness must possess sufficient knowledge, skill, or
experience regarding the subject matter of the testimony to
assist the trier of fact in the search for truth. See Velazquez
v. Commonwealth, 263 Va. 95, 103, 557 S.E.2d 213, 218 (2002)
Ward v. Commonwealth, 264 Va. 648, 653, 570 S.E.2d 827, 831
(2002).
6
(quoting Neblett v. Hunter, 207 Va. 335, 339-40, 150 S.E.2d 115,
118 (1966)); Sami v. Varn, 260 Va. 280, 284, 535 S.E.2d 172, 174
(2000); Combs v. Norfolk & Western Ry. Co., 256 Va. 490, 496,
507 S.E.2d 355, 358 (1998). Generally, a witness possesses
sufficient expertise when, through experience, study or
observation the witness acquires “knowledge of a subject beyond
that of persons of common intelligence and ordinary experience.”
Velazquez, 263 Va. at 103, 557 S.E.2d at 218; see also Norfolk &
Western Ry. Co. v. Anderson, 207 Va. 567, 571, 151 S.E.2d 628,
631 (1966). “[A]ll that is necessary for a witness to qualify
as an expert is that the witness have sufficient knowledge of
the subject to give value to the witness’s opinion.” Velazquez,
263 Va. at 103, 557 S.E.2d at 218. Notwithstanding these
general principles, we have concluded that certain subject
matter is exclusive to a particular field of expertise such that
only witnesses trained as professionals in that field of
expertise are qualified to render expert opinions regarding that
subject matter. See Combs, 256 Va. at 496-98, 507 S.E.2d at
358-59 (holding that only a medical doctor may testify as to the
causation of a human physical injury); John v. Im, 263 Va. 315,
321, 559 S.E.2d 694, 697 (2002) (following Combs). But see
Velazquez, 263 Va. at 104, 557 S.E.2d at 218 (sexual assault
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nurse examiner may testify as to cause of sexual assault related
physical injury).
In resolving the issue presented, Conley v. Commonwealth,
273 Va. ___, ___ S.E.2d ___ (2007) (this day decided), is
instructive. In Conley, we held that the trial court did not
abuse its discretion in permitting a licensed clinical social
worker to render an expert opinion that the victim of a sexual
offense suffered from PTSD. We concluded that the statutory
scheme by which clinical social workers become licensed and
submit to other regulation authorized licensed social workers to
“provide direct diagnostic, preventive and treatment services”
regarding mental disorders such as PTSD. Accordingly, we held
that since licensed clinical social workers are authorized by
statute to provide direct diagnostic services, they may in
appropriate circumstances render expert testimony as to such
diagnoses.
While Conley involved testimony by a licensed clinical
social worker, this case involves testimony by an individual
belonging to a different category of mental health professional,
a licensed professional counselor. However, licensed
professional counselors are governed by a statutory scheme
similar to the one applicable to licensed clinical social
workers discussed in Conley. Professional counselors are
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governed by a health regulatory board, the Board of Counseling,
which possesses the authority and duty to issue licenses to
qualified applicants seeking to join the profession. See Code
§ 54.1-3503; Code § 54.1-2400(3). Furthermore, Code § 54.1-3506
requires that “[i]n order to engage in the practice of
counseling . . . it [is] necessary to hold a license” issued by
the Board of Counseling.
As provided in the statutory scheme pertaining to the
regulation of professional counselors the term “[p]rofessional
counselor” is defined as a “person trained in counseling
interventions designed to . . . remediat[e] mental, emotional,
or behavioral disorders.” Code § 54.1-3500. More
significantly, “[c]ounseling” is defined to include “the
therapeutic process of . . . conducting assessments and
diagnoses for the purpose of establishing treatment goals and
objectives and . . . to identify and remediate mental, emotional
or behavioral disorders and associated distresses which
interfere with mental health.” Id. With absolute clarity, this
statutory language expressly authorizes those qualified to
engage in the practice of counseling to make diagnoses of mental
disorders and design treatment strategies for them.
Furthermore, Code § 16.1-356 authorizes licensed
professional counselors to perform competency evaluations for
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juveniles. Without question, such evaluations may entail
identifying and diagnosing mental disorders.
Based upon these statutes, and in accordance with our
holding in Conley, we hold that a licensed professional
counselor is authorized to diagnose recognized mental disorders
such as PTSD. Thus, we further hold that a licensed
professional counselor may in appropriate circumstances render
expert testimony regarding a diagnosis of a mental disorder.
However, we stress that the trial court must determine
whether a licensed professional counselor called as an expert
witness in a given case in fact possesses sufficient skill,
knowledge and experience as to the subject matter of the
anticipated testimony. “The issue whether a [potential] witness
is qualified to testify as an expert on a given subject is a
matter submitted to the trial court’s discretion, and the trial
court’s ruling in this regard will not be disturbed on appeal
unless it plainly appears that the witness was not qualified.”
Velazquez, 263 Va. at 104, 557 S.E.2d at 218 (citing Johnson v.
Commonwealth, 259 Va. 654, 679, 529 S.E.2d 769, 783 (2000)).
Here, the Court of Appeals held that the trial court did not
abuse its discretion when it permitted Giles to testify as an
expert that the victim suffered from PTSD. We agree with the
Court of Appeals.
10
Giles’ educational background clearly indicates that she is
well-versed in the area of mental health treatment. She
underwent seven years of higher education, receiving a master’s
degree in counseling in addition to her bachelor’s degree. She
also completed three years of clinical training under the
supervision of another counselor or a psychologist.
Furthermore, her training initially focused on working with
children who were victims of abuse. At the time of trial, Giles
had practiced as a licensed professional counselor for nine
years.
Giles testified that she studied PTSD while getting her
master’s degree and “in much more detail” during her three year
clinical training. At trial, she listed the symptoms of PTSD
set forth in the DSM, which is the standard diagnostic manual of
the American Psychiatric Association. Giles testified that she
had met with the victim several times and determined that, under
the DSM’s diagnostic criteria, the victim suffered from PTSD.
The record contains sufficient evidence to support the
trial court’s conclusion that Giles possessed sufficient
knowledge and experience regarding PTSD and the victim’s mental
condition that Giles’ opinion could be of value to the jury.
Thus, the Court of Appeals was correct to hold that the trial
court did not abuse its discretion in permitting Giles to
11
testify as an expert witness under the circumstances of this
case.
CONCLUSION
For these reasons, we hold that the Court of Appeals
correctly held that the trial court did not err in ruling that
Giles was qualified to testify as an expert. Accordingly, the
Court of Appeals’ judgment will be affirmed.
Affirmed.
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