Wise v. Southern Tier Express, Inc.

Filing 122

ORDER Granting in part Plaintiff's 87 Motion in Limine No. 13 (Malingering or Secondary Gain). Signed by Judge Andrew P. Gordon on 7/10/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 RODERICK WISE, an individual, 5 6 7 8 9 10 11 Plaintiff, v. SOUTHERN TIER EXPRESS, INC., a New York corporation; DOES I through X; and ROE CORPORATIONS I through X, inclusive, Case No. 2:15-cv-01219-APG-PAL ORDER GRANTING IN PART MOTION IN LIMINE NO. 13 (MALINGERING OR SECONDARY GAIN) (ECF No. 87) Defendants. Plaintiff Roderick Wise moves to exclude testimony about or reference to his alleged 12 malingering or desire for secondary gain. ECF No. 87. Wise is primarily concerned that Southern 13 Tier’s expert, Dr. Hugh Selznick, will attempt to discredit Wise’s injuries and pain by testifying 14 that Wise is lying about or exaggerating the extent of his symptoms or is motivated by secondary 15 gain. Wise generally argues that because Selznick is not a psychologist or psychiatrist he cannot 16 testify that Wise is magnifying symptoms or has secondary gain motives. Wise also argues that 17 such opinions invade the province of the jury because it is an opinion about Wise’s motivations 18 and the jury is the sole judge of credibility. 19 Southern Tier responds that a doctor can testify as to whether there is objective evidence 20 of injury as opposed to purely subjective complaints of pain, and can also testify to contradictory 21 findings upon physical examination that suggest a person’s pain could be psychological in nature. 22 ECF No. 107. Southern Tier also argues that there is significant evidence that Wise is 23 malingering or has secondary financial motivation, and that the such evidence is relevant to the 24 jury’s determination as to whether, and how much, to award Wise. 25 Dr. Selznick is permitted to point out that Wise’s reporting of pain was inconsistent with 26 objective medical criteria. He also may point out inconsistencies between Wise’s reported history 27 and objective evidence. But he may not opine that the reason these inconsistencies exist is 28 1 because Wise is motivated by secondary gain. Doing so would invade the province of the jury to 2 determine credibility. See, e.g., United States v. Geston, 299 F.3d 1130, 1136 (9th Cir. 2002) 3 (making credibility determinations is “the jurors’ responsibility”). Selznick therefore cannot 4 testify about “secondary gain” or offer opinions on Wise’s motivations. 5 However, I will not preclude defense counsel from arguing that a reasonable inference 6 from those inconsistencies is that Wise was seeking to better his position in this lawsuit. Counsel 7 is entitled to make arguments based on reasonable inferences from the evidence elicited at trial. 8 Depending on the evidence presented, it may be reasonable to infer that Wise sought to improve 9 his position in this lawsuit through exaggerated claims of pain that are not supported by the 10 objective evidence, or that he sought to avoid jeopardizing his lawsuit by not fully disclosing his 11 history. 12 I therefore grant in part and deny in part Wise’s motion on this issue. Dr. Selznick may 13 testify about inconsistencies, but he may not testify about “secondary gain” or ascribe to Wise 14 motivations for those inconsistencies. That is for the jury to decide. But defense counsel may 15 argue in closing, if the evidence supports a reasonable inference, that those inconsistencies were 16 the product of Wise’s desire to strengthen his position in litigation. 17 Therefore, Wise’s motion in limine (ECF No. 87) is GRANTED IN PART. 18 DATED this 10th day of July, 2017. 19 20 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 Page 2 of 2

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