Conley v. Com.

Present: All the Justices

MARK ANTHONY CONLEY
OPINION BY
v. Record No. 060120 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 Albemarle

County, Mark Anthony Conley was convicted on one count of

abduction with intent to defile, Code § 18.2-48, and two counts

of forcible sodomy, Code § 18.2-67.1. In this appeal, the sole

issue we consider is whether the trial court erred in permitting

a licensed clinical social worker to testify as an expert that

Conley’s nephew (“the victim”), suffered from post-traumatic

stress disorder (“PTSD”).1

BACKGROUND

Our resolution of the issue presented in this appeal does

not require a recitation of the trial evidence that led to

Conley’s criminal convictions. It suffices to relate that the

Commonwealth introduced evidence to support the allegations that

Conley coerced the victim, who was under the age of thirteen at

that time, into engaging in unlawful acts of oral sex. The

1
We consider a similar issue with regard to expert
testimony by a licensed professional counselor in Fitzgerald v.
Commonwealth, 273 Va. ___, ___ S.E.2d ___ (2007) (this day
decided).
focus of our analysis in resolving the issue presented is upon

the challenged testimony at trial of the Commonwealth’s expert

witness, Anna H. Vanhoy.

Vanhoy is a licensed clinical social worker2 who provided

treatment services to the victim, subsequent to Conley’s

criminal acts, upon a referral by the child’s pediatrician.

Prior to trial, the Commonwealth designated Vanhoy as an expert

witness who would be asked to give an expert opinion that the

victim suffered from PTSD.3

Conley filed a motion in limine to exclude Vanhoy’s

anticipated testimony. Conley principally asserted in the

motion, and thereafter during oral argument on it, that Vanhoy

2
A “[s]ocial worker” is “a person trained to provide
service and action to effect changes in human behavior,
emotional responses, and the social conditions by the
application of the values, principles, methods, and procedures
of the profession of social work.” Code § 54.1-3700. A
“clinical social worker” is a “social worker who, by education
and experience, is professionally qualified at the autonomous
practice level to provide direct diagnostic, preventive and
treatment services where functioning is threatened or affected
by social and psychological stress or health impairment.” Id.
3
Post-traumatic stress disorder is a recognized mental
disorder by the American Psychiatric Association in the
Diagnostic and Statistical Manual of Mental Health Disorders.
For purposes of our resolution of this appeal, PTSD is
essentially a constellation of certain characteristic symptoms
that manifest subsequent to a psychologically traumatic event
that is outside the range of common experience.
2
was not qualified to render an expert opinion that the victim

suffered with PTSD because “she’s not a medical doctor.”4

In response, the Commonwealth contended that Vanhoy

possessed sufficient training, experience, and knowledge to

testify as an expert regarding her diagnosis that the victim

suffered with PTSD. The Commonwealth conceded that Vanhoy could

not give an expert opinion that the victim’s PTSD was caused by

sexual abuse.

The trial court denied Conley’s motion in limine, rejecting

Conley’s assertion that only a medical doctor may qualify to

render an expert opinion regarding the diagnosis of PTSD. The

trial court indicated that Vanhoy’s qualification as an expert

would depend on a showing that she possessed sufficient

expertise in the diagnosis and treatment of PTSD.

At trial, the Commonwealth and Conley conducted extensive

voir dire of Vanhoy regarding her qualification as an expert in

the diagnosis and treatment of PTSD. Vanhoy testified that

currently she is a licensed clinical social worker who works

with families and children as a private practice therapist. Her

testimony revealed that she received a bachelor’s degree in

4
Conley also contended in the motion in limine that
Vanhoy’s testimony was inadmissible for lack of probative value,
carried a high risk of prejudice, and would improperly address

3
psychology and a master’s degree in social work, and her

educational background involved “training towards making

diagnos[es] of a variety of emotional disorders.”

Regarding her experience with the diagnosis and treatment

of PTSD, Vanhoy testified that during graduate school she took a

family violence course where PTSD was “one of the more

significant diagnoses.” Also during graduate school she

interned at a family violence and rape crisis center where she

worked with victims of sexual trauma. She estimated that over

50% of the individuals she encountered there suffered from “all

stages” of PTSD.

Vanhoy further testified that after graduate school she

worked for approximately two years in a family preservation

clinic. There, she performed in-home services with families and

children in crisis, carrying a caseload of six families at a

time. Vanhoy related that some of the children she worked with

had been sexually abused or had experienced episodes of

violence, and estimated that 20% of the care recipients had

PTSD.

Continuing, Vanhoy testified that she worked for

approximately two and a half years as a clinical social worker

an ultimate issue of fact. However, these assertions are not at
issue in this appeal.
4
at a state hospital for children and adolescents. In this

setting, she provided evaluation and treatment for children who

presented a large variety of psychological diagnoses. She

“mainly” performed psycho-social evaluations but “also ran

support groups as well as carried some individual therapy

clients.” Vanhoy estimated that approximately 25% of the

children she treated had PTSD. Vanhoy stated, however, that

since patients are often given a concurrent diagnosis where

another disorder is given greater weight than PTSD, a “much

greater number would have been impacted by PTSD.” Vanhoy

estimated that of the children she treated at the state

hospital, between 50% and 75% of those were impacted by PTSD.

Vanhoy testified that she subsequently entered private

practice as a therapist. In this capacity, she worked with an

adult female with chronic PTSD and a “couple” of small children

who were diagnosed with PTSD. At the time of trial, Vanhoy

practiced at a clinic implementing a “multi-disciplinary

approach” to therapy. Vanhoy testified that in this environment

she encountered issues regarding various mental disorders, but

only had one patient whom she would have diagnosed with PTSD.

Vanhoy further testified that, in addition to her work

experience, she regularly reviews scholarly literature on

psychology, has done a presentation on borderline personality

5
disorder, and has been on the board of directors of an agency

that provides services to victims of domestic violence, sexual

assault, and child sex abuse.

On cross-examination during voir dire, Vanhoy testified

that she had personally diagnosed six or seven cases of PTSD

during her career. Vanhoy conceded that she had never qualified

to testify as an expert witness on PTSD or published any

articles or scholarly works regarding PTSD, and that she cannot

prescribe medication.

At the conclusion of voir dire, the Commonwealth moved to

qualify Vanhoy as an expert in the field of diagnosis and

treatment of PTSD. Over Conley’s objection, the trial court

ruled that Vanhoy was qualified to testify as an expert

regarding the diagnosis and treatment of PTSD.

Upon direct examination during the trial, the Commonwealth

elicited substantially the same testimony from Vanhoy regarding

her educational background and professional experience. Vanhoy

then testified regarding her treatment of the victim, recounting

that she first met with him ten months prior to trial after a

referral from his pediatrician. Beginning with the initial

therapy session, Vanhoy recounted that she conducted therapy

sessions with the victim approximately once a week and continued

to do so until the time of trial.

6
 Vanhoy testified that she initially diagnosed the victim

with depressive disorder, but that since counseling with him

over a period of time, she had “diagnosed him with [PTSD].”

Vanhoy explained that PTSD is caused by a traumatic event such

as “witnessing or experiencing violence, being in combat or a

natural disaster,” or experiencing “physical or sexual abuse.”

Vanhoy stated that the victim exhibited a “multitude” of the

symptoms associated with PTSD.

At the conclusion of the evidence, the jury found Conley

guilty of the charged offenses. By order entered on December

16, 2005, the Court of Appeals denied Conley’s petition for

appeal for reasons stated in a prior unpublished per curiam

opinion. Conley v. Commonwealth, Record No. 0097-05-02 (June 8,

2005). This appeal followed.5 [App. 157-158].

DISCUSSION

Previously, we have not been called upon to address the

particular issue whether a licensed clinical social worker may

be qualified to render an expert opinion regarding the diagnosis

of a mental disorder over the defendant’s objection. Cf.

5
The Court of Appeals initially dismissed Conley’s appeal
because he failed to timely file a transcript or written
statement of facts. Conley filed a petition for writ of habeas
corpus in this Court seeking leave to file a delayed appeal to
the Court of Appeals. We granted the writ and Conley proceeded
to file his appeal in the Court of Appeals.
7
Johnson v. Commonwealth, 267 Va. 53, 66-67, 591 S.E.2d 47, 54

(2004)(licensed clinical social worker, without objection,

qualified as an expert regarding Dissociative Identity Disorder

and borderline personality disorder). However, the general

principles pertaining to the qualification of an expert witness

are well-established. Generally, to qualify as an expert the

witness needs only to have a degree of knowledge of a subject

matter beyond that of persons of common intelligence and

ordinary experience so that the witness’ opinion will have value

in assisting the trier of fact in understanding the evidence or

determining a fact in issue. See Velazquez v. Commonwealth, 263

Va. 95, 103, 557 S.E.2d 213, 218 (2002). An expert witness may

acquire the requisite knowledge of a subject matter through

experience and observation in a variety of ways, including

participation in a vocation, without formal training or

education. See Norfolk & Western Ry. Co. v. Anderson, 207 Va.

567, 571, 151 S.E.2d 628, 631 (1966); Neblett v. Hunter, 207 Va.

335, 339, 150 S.E.2d 115, 118 (1966). Whether to permit a

witness to qualify as an expert on a given subject matter is an

issue submitted to the discretion of the trial court, and on

appeal we will not reverse the trial court’s ruling in this

regard unless it plainly appears that the witness was not

qualified. Atkins v. Commonwealth, 272 Va. 144, 153, 631 S.E.2d

8
93, 97 (2006); Johnson v. Commonwealth, 259 Va. 654, 679, 529

S.E.2d 769, 783 (2000).

Notwithstanding these general principles regarding the

qualification of an expert witness, Conley contends that we have

established in Combs v. Norfolk & Western Ry. Co., 256 Va. 490,

496-97, 507 S.E.2d 355, 358-59 (1998), and in John v. Im, 263

Va. 315, 321, 559 S.E.2d 694, 697 (2002), that only a medical

doctor may give an expert opinion regarding the cause of a

physical human injury.6 Upon this premise, Conley contends that

because only a medical doctor may give an expert opinion

regarding the cause of a human injury and “causation of a human

injury is a component part of a diagnosis” as we stated in

Combs, 256 Va. at 496, 507 S.E.2d at 358, then it necessarily

follows that a non-physician may not also render an opinion

regarding any medical diagnosis. Accordingly, Conley maintains

that the trial court erred in qualifying Vanhoy as an expert in

the diagnosis and treatment of PTSD and permitting her to give

an expert opinion that the victim suffers with PTSD, regardless

of any knowledge Vanhoy was shown to have gained by virtue of

6
In John, we noted that the holding in Velazquez is limited
to the unique context of permitting a sexual assault nurse
examiner to render an expert opinion regarding the cause of a
victim’s injuries in a rape case. See John, 263 Va. at 321 n.2,
559 S.E.2d at 697 n.2.
9
her training and experience in diagnosing PTSD as a licensed

clinical social worker.

Conley’s reliance upon Combs and John is misplaced. In

Combs, we held that the trial court abused its discretion in

permitting a biomechanical engineer to give an expert opinion

regarding the cause of the plaintiff’s ruptured disc. 256 Va.

at 497, 507 S.E.2d at 359. Noting that “the question of

causation of a human injury is a component part of a diagnosis,”

and that the statutory definition of the “practice of medicine”

contained in Code § 54.1-2900 includes making a “diagnosis,” we

concluded that the question of causation of a human injury is

part of the practice of medicine. Id. at 496, 507 S.E.2d at

358. Thus, we held that only a medical doctor is qualified to

give expert opinion regarding the cause of a human injury. Id.

at 496-97, 507 S.E.2d at 358-59.

Subsequently, in John, consistent with our holding in

Combs, we held that a licensed Ph.D. psychologist was not

qualified to give an opinion that the plaintiff had suffered a

“mild traumatic brain injury . . . as a result of the impact and

the sudden acceleration-deceleration of her head” in a car

accident. 263 Va. at 318, 321, 559 S.E.2d at 695, 697. We

again reasoned that an opinion regarding the causation of a

particular human injury is a component part of a diagnosis,

10
which is a part of the practice of medicine, and because the

psychologist was not a medical doctor, he was not qualified to

give an expert opinion that the plaintiff had suffered a mild

traumatic brain injury as a result of the accident. Id. at 321,

559 S.E.2d at 697.

Combs and John initially may be distinguished factually

from the present case in that those cases, unlike the present

case, involve causation issues regarding physical human

injuries. PTSD, while arguably a form of human injury, is a

mental disorder. Moreover, we are of opinion that Combs and

John do not, and were not intended to, establish a categorical

rule in this Commonwealth that only a medical doctor may qualify

to render an expert opinion regarding the diagnosis of PTSD or

any other recognized mental disorder. See Ward v. Commonwealth,

264 Va. 648, 653, 570 S.E.2d 827, 831 (2002) (permitting

testimony by a psychologist in a rape case as to the victim’s

mental condition). Additionally, we note that in the present

case, unlike the circumstances in Combs and John, the proffered

expert was not offered to testify regarding the cause of the

victim’s diagnosed mental disorder.

Beyond question, the diagnosis and treatment of mental

disorders is not a field of expertise reserved exclusively to

medical doctors. Rather, the provision of mental health care

11
frequently occurs through other professionals who are educated

and trained for the specific purpose of providing therapy to

those with mental disorders. See Jaffee v. Redmond, 518 U.S. 1,

15-17 (1996) (“[t]oday, social workers provide a significant

amount of mental health treatment”). The particular category of

mental health professionals at issue in this case pertains to

clinical social workers who, under the relevant statutory

scheme, in order to provide direct mental health services are

required to be licensed by the Board of Social Work, a health

regulatory board within the Department of Health Professions.

See Code § 54.1-3706 (requiring those engaged in “the practice

of social work” to be licensed); Code § 54.1-3703 (“the Board of

Social Work shall regulate the practice of social work”); Code

§ 54.1-2400(3)(including among the general powers and duties of

a health regulatory board the licensure of qualified applicants

to practice within a particular profession).

By statute, a professional attaining a license and other

qualifications prerequisite to becoming a clinical social worker

may “provide direct diagnostic, preventive and treatment

services where functioning is threatened or affected by social

or psychological stress or health impairment.” Code § 54.1-3700

(emphasis added). The language of Code § 54.1-3700 clearly

authorizes a licensed clinical social worker to, among other

12
things, diagnose mental disorders. Furthermore, Code § 16.1-356

authorizes licensed clinical social workers to perform

competency evaluations for juveniles, an undertaking that

involves making diagnoses of mental disorders and other

conditions impacting mental health.

Accordingly, we hold that licensed clinical social workers

who are authorized to diagnose mental disorders by statute in

appropriate circumstances, may render expert testimony regarding

such diagnoses. However, it remains incumbent upon the trial

court to determine whether a particular licensed clinical social

worker has the skill, knowledge, and experience regarding the

pertinent subject matter to qualify as an expert.

Thus, we turn to the issue whether in the present case the

trial court abused its discretion in ruling that Vanhoy

qualified to give an expert opinion regarding the victim’s PTSD

diagnosis. The record shows that Vanhoy held a bachelor’s

degree in psychology and a master’s degree in social work. Her

graduate work as a whole involved “training towards making

diagnos[es] of a variety of emotional disorders,” including

PTSD, with one course in particular that focused on PTSD.

Vanhoy regularly reads literature pertaining to the field of

psychology, including PTSD.

13
 Vanhoy’s years of work experience reflect her focus on the

treatment of children and families in crisis, although she has

treated adult individuals as well. During her career she has

diagnosed at least six patients with PTSD, but has worked with a

far larger number of individuals in a variety of settings who

had been diagnosed with PTSD.

Vanhoy began treating the victim ten months prior to trial

and met with him almost weekly up until trial. During this

process, she obtained information relevant to the victim’s

mental condition and developed a list of symptoms from which she

could make a diagnosis. She based the victim’s PTSD diagnosis

on the fact that he exhibited a “multitude” of symptoms of PTSD.

The record clearly reflects that Vanhoy possessed extensive

educational and occupational experience in the diagnosis and

treatment of mental disorders, including PTSD. Furthermore, she

personally observed and evaluated the victim’s mental condition

over a substantial period of time. Thus, the record supports

the conclusion that the trial court did not abuse its discretion

in ruling that Vanhoy qualified as an expert to give her opinion

regarding the victim’s PTSD diagnosis.

CONCLUSION

For these reasons, we hold that the Court of Appeals

correctly held that the trial court did not err in allowing a

14
licensed clinical social worker to testify as an expert witness

regarding her diagnosis that the victim suffered with PTSD.

Accordingly, the judgment of the Court of Appeals will be

affirmed.

Affirmed.

15