FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CV-15-94]
HONORABLE JODI RAINES DENNIS, JUDGE.
Law Firm, P.A., by: Don P. Chaney and S. Taylor Chaney, for
Munson, Rowlett, Moore & Boone, P.A., by: Beverly A.
Rowlett and Mark Breeding, for appellees.
F. VIRDEN, JUDGE.
Sherry Lynne Glover appeals from a Jefferson County
jury's verdict awarding no damages in her negligence
claim against appellees Main Street Wholesale Furniture, LLC,
and Bryan William McPike. The Jefferson County Circuit Court
entered judgment accordingly and awarded appellees costs.
Glover raises several points on appeal to this court: (1) the
trial court abused its discretion by prohibiting her expert
from giving causation testimony during redirect examination,
(2) the trial court abused its discretion in allowing
evidence of secondary gain, (3) the trial court prejudiced
her case by not being impartial during the proceedings, and
(4) the trial court erred in granting appellees' motion
for costs pursuant to Arkansas Rule of Civil Procedure 68. We
agree with Glover's second point; therefore, we reverse
and remand for proceedings consistent with this opinion.
March 4, 2015, Glover filed a complaint against appellees
following a motor-vehicle accident that occurred on March 9,
2012. Glover's car had been sideswiped by a van driven by
Bryan McPike, an employee of Main Street Wholesale Furniture.
Glover's complaint alleged that McPike had violated
several traffic-safety rules and that the accident had
resulted in serious and permanent injuries to her neck and
back and had aggravated her preexisting conditions. The
appellees answered, denying the material allegations of
Glover's complaint and denying that any action by McPike
was a proximate cause of Glover's alleged injuries.
trial, Glover filed a motion in limine to exclude, among
other things, anticipated testimony from Dr. Raymond Earl
Peeples, Jr., suggesting that Glover's problems are
psychological in nature and that she is malingering, which is
another way of saying that she is motivated by secondary
gain. Citing Rodgers v. CWR Construction, Inc., 343
Ark. 126, 33 S.W.3d 506 (2000), Glover argued that such
testimony would be irrelevant and that it would be more
prejudicial than probative. The trial court denied
Glover's motion. A jury trial was held August 22 through
cross-examination of Dr. Michael Courtney, a chiropractic
physician presented by Glover, appellees elicited testimony
from him that Bonica's Management of Pain is the primary
authoritative textbook for the curriculum of the American
Academy of Pain Management. Dr. Courtney agreed with a couple
of quotes from the book about fibromyalgia patients and then
quoted from the textbook that "in the worst cases,
patients become involved with disability and compensation
systems that almost ensure they will never improve." Dr.
Courtney explained that "compensation systems"
meant lawsuits. He testified that he did not know whether a
fibromyalgia patient would never improve if that patient
became involved in a claim for compensation, and he disagreed
that the dominant factor for chronic-pain claims is the
eligibility for compensation. Glover then testified that no
doctors had ever told her that her fibromyalgia had caused
her to have compensation-seeking behavior.
Peeples, although retained by appellees, was called by Glover
in her case-in-chief. Dr. Peeples confirmed that he had never
met or examined Glover but had only reviewed her medical
records and issued a report at appellees' request. He
concluded that Glover had sustained a strain resulting from
the wreck on March 9, 2012, and that a strain meant there are
symptoms with no change in anatomy. He said that, while most
people complain of symptoms for three to six weeks following
a car wreck, the symptoms last much longer in the litigant
pool than in the nonlitigant pool. Dr. Peeples further
testified that Glover's wreck was a sideswipe collision,
which is a low-energy event. Dr. Peeples then read from the
AMA Guides newsletter for chronic pain, which stated that the
only individuals who complain of back or neck pain after
low-energy trauma or minor trauma are people in litigation.
He clarified that he was not saying that people who file
lawsuits are motivated by secondary gain-he was merely
quoting science. He testified that the AMA Guides newsletter
also provided that the unreliability of examinee reports is
especially pronounced when the examinee has filed a
medicolegal claim. Dr. Peeples said that Glover theoretically
had two of the four criteria for identifying a person who is
malingering, but he clarified that he had no personal or
medical opinion on whether Glover was malingering.
Peeples was also called by appellees in their case-in-chief.
He testified that it was not necessary to examine Glover to
form an opinion on diagnosis, treatment, and causation and
that the scientific literature states that the independent,
nonexamining physician is at an advantage for forming a
causation opinion compared to the treating physician. He said
that before the wreck Glover had preexisting symptoms,
musculoskeletal difficulties, a fibromyalgia diagnosis,
chronic-pain complaints, and multiple-level degeneration of
the neck. He stated that Glover sustained a strain in the car
wreck, which resolves without treatment in the nonlitigant
population. On cross-examination, Dr. Peeples testified that
the most common medical cause for Glover's symptoms,
other than the eligibility for compensation, was a
personality disorder. He clarified that he had not offered an
opinion that Glover has a personality disorder but that she
should be tested for such.
review the admission of expert testimony under an
abuse-of-discretion standard. Corbin v. Baptist Health,
Inc., 2016 Ark.App. 212, 490 S.W.3d 317. A trial court
is accorded wide discretion in evidentiary rulings, and we
will not reverse absent a manifest abuse of discretion and a
showing of ...