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Jordan v. Ventura

United States District Court, W.D. Arkansas, Texarkana Division

March 15, 2019

MARQCHELLO JORDAN PLAINTIFF
v.
ELMER ENRIQUE VENTURA, and JOHN DOES 1-3 DEFENDANTS

          ORDER

          Susan O. Hickey, Chief United States District Judge

         Before 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.

         This 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.

         Ventura 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.

         A. Secondary Gain

         Jordan 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.

         In 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.

         Ventura 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 gain.

         Upon 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.

         B. Unnecessary Medical Treatment

         Jordan 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.

         Upon 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.

         C. General Back Pain and Population Studies

         It is well established that expert testimony must be relevant and assist the fact-finder in deciding the ultimate issue of fact. Johnson v. Mead Johnson & ...


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