Wilks v. BNSF Railway Company

Filing 265

ORDER by Magistrate Judge Kimberly E. West granting 162 Motion in Limine, unless BNSF can show that a particular expert or treating physician/psychiatric professional has the necessary expertise to testify as to Defendant's secondary gain/malingering propensities. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
SAMANTHA WILKS,

)
)
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Plaintiff,
v.
BNSF RAILWAY COMPANY,
a corporation,
Defendant.

Case No. CIV-18-080-KEW

O R D E R
This matter comes before the Court on Plaintiff’s Motion in
Limine

to

Bar

Evidence,

Argument,

or

Reference

to

Secondary

Gain/Malingering/Litigation Syndrome, or Other Comments by One
Witness on the Credibility or Motive of Another Witness (Docket
Entry #162).

Plaintiff seeks to preclude Defendant BNSF Railway

Company (“BNSF”) from introducing evidence or argument regarding
her motivations for bringing this action or explanations for
inconsistencies

in

her

physical

condition

which

BNSF

has

attributed to secondary gain, malingering, or litigation syndrome.
Plaintiff contends the parties from whom BNSF has solicited a
finding of secondary gain or malingering are not qualified to
render an opinion on the issue.
This
irrelevant

motivation
for

inadmissible.

issue

presentation

is
to

generally
the

jury

considered
and,

to

be

therefore,

See e.g. Caldwell v. Wal-Mart Stores, Inc., 2000 WL

1

1335564, *5 (10th Cir. 2000); Riley v. Union Pac. R. Co., 2010 WL
1946286, *3 (E.D. Okla. May 13, 2010).

The sole exception would

be if BNSF establishes that the professional testifying to the
condition has the necessary expertise to identify whether a party
is malingering.
that

possessed

ailments.

This would presumably require expertise beyond
by

a

physician

treating

Plaintiff’s

physical

Absent such a showing, the evidence should be excluded.

This, of course, does not preclude BNSF arguing that Plaintiff’s
manifestations of her physical conditions are inconsistent.
IT IS THEREFORE ORDERED that Plaintiff’s Motion in Limine to
Bar

Evidence,

Argument,

or

Reference

to

Secondary

Gain/Malingering/Litigation Syndrome, or Other Comments by One
Witness on the Credibility or Motive of Another Witness (Docket
Entry

#162)

is

hereby

GRANTED,

unless

BNSF

can

show

that

a

particular expert or treating physician/psychiatric professional
has the necessary expertise to testify as to Defendant’s secondary
gain/malingering propensities.
IT IS SO ORDERED this 31st day of March, 2021.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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