The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
ORDER ON MOTION IN LIMINE
Presently before the Court is Plaintiff's Motion in Limine to exclude certain evidence. Plaintiff requests that evidence of the following be excluded from evidence:
I.) "Secondary gain" evidence designated by Defendants from the deposition of Dr. Herbert M. Biel;
II.) An unqualified diagnosis made by Dr. Herbert M. Biel;
III.) Evidence regarding an unrelated functional capacities examination designated by Defendants from the deposition of Dr. Robert M. Baltera;
IV.) Evidence regarding a workers' compensation claim made by Plaintiff Frank E. Dowden in relation to a spider bite injury, which is unrelated to this case;
V.) Evidence regarding any motor vehicle accident other than the accident which is the subject of this action; and
VI.) Evidence of Plaintiffs' bankruptcy filing prior to the subject motor vehicle accident.
I. "Secondary Gain" Evidence
Plaintiffs state that Dr. Herbert M. Biel, in his deposition, offered testimony of "secondary gain"--the theory that patients who are involved in litigation tend to exaggerate their symptoms. In his testimony, Dr. Biel states that he felt Mr. Dowden had a low pain threshold and was not responding to treatment as well as patients who were not involved in litigation or a workers' compensation claim.
Plaintiffs state that Dr. Biel's testimony was based upon the false assumption that Mr. Dowden's problems in his shoulder had been fully addressed. Dr. Biel gave his deposition on March 9, 2006, but referred Mr. Dowden to Dr. Robert M. Baltera for further treatment on March 16, 2006. Dr. Baltera ordered a repeat MRI of Mr. Dowden's right shoulder, which showed (1) a near complete tear or rupture of the supraspinatus tendon with some retraction, (2) complete rupture of the biceps tendon, (3) complete tearing away of the subscapularis tendon, and (4) atrophy to the rotator cuff muscles. This damage required a surgical repair of the right rotator cuff, and Dr. Baltera testified that Mr. Dowden's condition had gotten progressively worse between Dr. Biel's last surgery and the surgery that he performed. Plaintiffs argue that at the time of Dr. Biel's testimony, Dr. Biel was unaware that Plaintiff Frank Dowden was suffering from massive damage to his rotator cuff. Plaintiffs state that such testimony is therefore irrelevant and any probative value is outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the jury. In support of their assertions of irrelevance and prejudice, Plaintiffs cite Rodgers v. CWR Const., Inc., 343 Ark. 126, 133-34, 33 S.W.3d 506, 511-12 (2000), in which the Arkansas Supreme Court discussed this issue as follows:
Appellants' final point on appeal is that the trial court erred by allowing Dr. Stephen Cathey to testify regarding secondary-gain motivation. They claim that the highly prejudicial testimony significantly outweighed any slight probative value. We find merit in appellants' argument, and we reverse and remand on this issue. Dr. Cathey explained the concept of secondary-gain motivation to the jury at some length and implied that plaintiffs in personal-injury cases may exaggerate their symptoms in order to receive some financial benefit. In fact, Dr. Cathey opined that in those situations, doctors "frequently see secondary gain." He also commented that a lack of objective findings, as Dr. Cathey had observed in Rodgers's case, enters into the possibility of diagnosing someone with secondary gain. Significantly, Dr. Cathey affirmed during cross-examination that he was not testifying that he believed that appellant was malingering or implying that Rodgers had secondary gain involved in this case. Dr. Cathey unequivocally stated that he was not giving testimony that it was his opinion that there was any secondary gain involved in appellant's case. As a result, we must agree with appellants that the testimony was irrelevant, particularly when Dr. Cathey was unprepared to state that it was a relevant issue in Rodgers's case. Ark. R. Evid. 401 defines relevant evidence as "evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Given Dr. Cathey's admission, we conclude that the testimony should have been excluded pursuant to Ark. R. Evid. 402, which states that evidence that is not relevant is not admissible. Further, even if the evidence had some slight relevance, the testimony should have been excluded per Ark. R. Evid. 403 because its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. The jury could easily have concluded that secondary-gain issues were relevant to the case. In light of the foregoing, we hold that the trial court abused its discretion by admitting Dr. Cathey's expert testimony regarding secondary-gain motivation
Defendants argue that this case is distinguishable from Rodgers because, in this case, Dr. Biel addressed this patient, this injury, and this patient's recovery from the injury, while in Rodgers the neurosurgeon admitted on cross-examination that he did not believe there was any secondary gain involved in that case. The Court does not agree. Even if the Court were to find that the testimony was relevant because Dr. Biel stated that Mr. Dowden's responses to treatment were "affected by his ongoing litigation," the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the ...