United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey, Chief United States District Judge
the Court is Plaintiff Marqchello Jordan's Motion in
Limine to Limit Portions of the Report and Testimony of Earl
Peeples. (ECF No. 123). Defendant Elmer Enrique Ventura has
filed a response. (ECF No. 144). The Court finds this matter
ripe for consideration.
case arises from an automobile accident that occurred on May
6, 2015, on I-30 near Prescott, Arkansas. Jordan and Ventura
are both tractor-trailer drivers. Jordan claims that Ventura
entered into Jordan's travel lane and pushed his
tractor-trailer into another, disabled tractor-trailer parked
on the side of the interstate. Jordan alleges that he
suffered injuries as a result of the accident.
plans to offer testimony from Dr. Earl Peeples as an expert
witness. Dr. Peeples is expected to testify about
Jordan's health and medical treatment after he sustained
injuries in the accident at issue. Jordan moves the Court to
prohibit Dr. Peeples from testifying about (1)
Plaintiff's psychological issues and matters of secondary
gain; (2) whether medical procedures or treatments were
unnecessary; (3) irrelevant statistics of back pain generally
that are not related to Jordan's injuries; and (4) a
medical examination done by Dr. D'Auria. Jordan also asks
that the Court prohibit Dr. Peeples from testifying entirely
because he failed to disclose a list of cases where he had
previously testified as an expert witness.
has asked the Court to prohibit Dr. Peeples from testifying
about secondary gain- the theory that patients who are
involved in litigation tend to exaggerate their symptoms.
Dowden v. Garcia, No. 4:05-CV-192-GTE, 2007 WL
1111256, at *1 (E.D. Ark. Apr. 13, 2007). Jordan argues that
evidence of secondary gain is irrelevant and that any
probative value of secondary gain is outweighed by the risk
of unfair prejudice. Specifically, Jordan points to
Rodgers v. CWR Const., Inc., 343 Ark. 126, 134, 33
S.W.3d 506, 511 (2000) and Dowden v. Garcia, No.
4:05-CV-192 GTE, 2007 WL 1111256, at *2 (E.D. Ark. Apr. 13,
2007) in support of these propositions.
Rodgers, the Arkansas Supreme Court found that
evidence of secondary gain was irrelevant where the expert
did not opine that the plaintiff in that case was personally
exaggerating his symptoms. In Dowden, the district
court found that evidence of secondary gain was unfairly
prejudicial where the treating physician planned to testify
that the plaintiff was not recovering as well as his patients
not involved in litigation.
argues that the case at bar is distinguishable from
Rodgers and Dowden. Ventura points out that
unlike in Rodgers, the expert in this case will be
giving specific opinions about Jordan exaggerating his
symptoms. Ventura further argues that this case is
distinguishable from Dowden because that expert was
unaware of the plaintiff's complete medical history,
whereas Dr. Peeples has reviewed Jordan's complete
medical history as well as other scholarly works on secondary
consideration, the Court finds that the probative value of
secondary gain is outweighed by the risk of unfair prejudice.
Although there are some factual distinctions between
Rodgers and Dowden and the case at bar, the
Court finds that evidence of secondary gain is prejudicial on
its face and that such prejudice outweighs the probative
value in this case. Therefore, Dr. Peeples will not be
allowed to testify about secondary gain.
Unnecessary Medical Treatment
asks the Court to prohibit Dr. Peeples from offering opinions
that Jordan's medical treatment was not clinically
indicated or necessary. Jordan cites to Ponder v.
Cartmell, 301 Ark. 409, 412, 784 S.W.2d 758, 761 (1990)
for the proposition that where “a plaintiff proves that
her need to seek medical care was precipitated by the
tortfeasor's negligence, then the expenses for the care
she receives, whether or not the care is medically necessary,
are recoverable.” In response, Ventura directs the
Court to Worman v. Allstate Indem. Co., No.
3:11-CV-03033, 2012 WL 5410933, at *3 (W.D. Ark. Nov. 6,
2012). In Worman, the court noted “[t]he
limited holding of the Ponder case is that if a
plaintiff proves that her need to seek medical care was
precipitated by the tortfeasor's negligence, then the
expenses for the care she receives, whether or not the care
is medically necessary, are recoverable.” Id.
The court went on to state that “[t]he Ponder
rule does not mean that any and all medical care sought by
Plaintiff after her car accident must be 1) considered
reasonable and necessary or 2) due to injuries proximately
caused by the accident.” Id.
consideration, the Court finds that Ponder does not
bar questioning into whether medical treatment was reasonable
and necessary. Moreover, Ventura is allowed to rebut
Jordan's allegations about the nature and severity of his
injuries. Accordingly, Dr. Peeples will be allowed to testify
about the necessity of Jordan's medical treatment.
General Back Pain and Population Studies
well established that expert testimony must be relevant and
assist the fact-finder in deciding the ultimate issue of
fact. Johnson v. Mead Johnson & ...