IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR ___ COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NUMBER:

PATRICIA DOE and STEVEN DOE, her husband,

Plaintiffs, vs. Bad Guy

Defendants. ___________________________________________/

PLAINTIFFS’ MOTION IN LIMINE TO EXCLUDE AND/OR LIMIT THE TESTIMONY OF DEFENDANT, NATIONAL SECURITY’S EXPERTS; JAMES JONES, MITCHELL SMITH,

M.D.; AND RYAN JAMES JAMES, M.D. COME NOW, Plaintiffs in this action, by and through their undersigned attorney hereby

files their Motion in Limine to Exclude and/or Limit the Testimony of Defendant, National

Security’s Experts; James Jones, Mitchell Smith, M.D., and Ryan JAMES James, M.D., and as

grounds state:

I. INTRODUCTION

On September 30, 2005, Stephen, the three year old son of the Plaintiffs was sick

with a bad cold. After dinner, the Doe’s went to the ___ Center located at 4 to purchase

over-the-counter cold medication. It was approximately 9:30 p.m. They parked the car in

front of the store next to the fire lane. Steven and Steven Jr. waited in the car while

Patricia went into the store. She selected cold medication and approached the cashier to

make the purchase with cash. At the time she approached the cashier station, she was

advised that the register was closed. Patricia asked the cashier if she could please allow

her to quickly purchase the one item, she was paying cash, and it was necessary for her

son who was sick and waiting in the car with her husband. The cashier agreed.

As the cashier began ringing up the item, two women who were also approaching

the register started to raise their voices making comments to Patricia such as, “that shit ain’t

right” and calling her names, such as “white whore.” The cashier completed the transaction

with Patricia and quickly completed the transaction with the two women. The two women

continued harassing and making physical threats to Patricia.

The cashier never called for management or security and Patricia attempted to leave

the store as quickly as possible. The two women followed her continuing to make physical

threats which were witnessed by the front-end manager, Heather Robison. As Patricia

approached the front of the store, she located a uniformed security officer from NSIA,

Salvador Figueroa. She told him that she was being physically threatened, followed,

harassed, and scared for her safety. The security officer’s response was to laugh and walk

away. Patricia attempted to leave the store to get to her car as quickly as possible. Once

outside, she was surrounded by the two women and brutally attacked resulting in a strike to

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her eye by one woman with very long fingernails and immediately injuring her left eye. Her

husband, Steven, exited the car and attempted to protect her. One of the women stated to

the other woman “keep him busy” as the other woman assaulted Patricia. As Steven

approached, the two woman quickly ran away.

As a result of the attack, Patricia Doe was partially blinded in her left eye. Her eye

will never improve. She also suffers from severe Post Traumatic Stress Disorder.

Plaintiffs brought an action for negligence against Defendants, ____During the

course of litigation, the Defendants retained the services of several witnesses who will

provide “expert” opinions. They retained a security expert, James Jones; a

Neurophthalmologist, Mitchell Dr Smith, M.D., and a psychological expert, Ryan JAMES

Jones M.D.

II. DEFENDANTS’ EXPERTS MUST BE LIMITED AND/OR EXCLUDED

The Court in permitting opinions of experts, such as those retained by the

Defendants, must use the analysis proscribed by FRE §90.702 and not permit an expert to

serve as a conduit to place before a jury otherwise inadmissable evidence.

FRE §90.702 requires that before an expert may testify in the form of an opinion,

two preliminary factual determinations must be made by the court under section 90.105.

First, the court must determine whether the subject matter is proper for expert testimony,

i.e., that it will assist the trier of fact in understanding the evidence or in determining a fact

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in issue. As a part of this decision, the court may be required to determine whether a

reliable body of scientific or other specialized knowledge has developed to support the

opinion testimony. Second, the court must determine whether the witness is adequately

qualified to express an opinion on the matter. See Brooks v. State, 762 So.2d 879 (Fla.

2000); See Ramirez v. State, 651 So.2d 1164 (Fla.1995); Also, see Huck v. State, 881

So.2d 1137, 1149 (Fla. 5th DCA 2004).

The Florida Supreme Court has firmly upheld the principle in the Florida courts that

an expert cannot be used as a conduit for inadmissible evidence as well as that “allowing

the presentation of otherwise inadmissible evidence merely because an expert relied on it in

forming an opinion undermines the rules of evidence.” Linn v. Fossum, 946 So. 2d 1032,

1038 (Fla.2006); also see Erwin v. Todd, 699 So. 2d 275, 277 (Fla. 5th DCA 1997);

Riggins v. Mariner Boat Works, Inc., 545 So. 2d 430, 432 (Fla. 2nd DCA 1989)(recognizing

a line of cases that “prohibits the use of expert testimony merely to serve as a conduit to

place otherwise inadmissible evidence before a jury.”).

The Defendants’ experts attempt to discredit the Plaintiff, Patricia Doe by placing

otherwise inadmissible evidence before a jury and attacking her credibility and character

through speculative testimony. The crux of these witnesses’ testimony is that Plaintiff,

Patricia Doe, in regards to many non-material historical facts, is inconsistent, not credible,

exaggerating, malingering, or that she should not be believed.

Such testimony is wholly improper. It is inadmissible for five (5) reasons:

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(1) It consists entirely of guesses, conjecture and speculation (i.e., mere suspicions without premise of fact);

(2) The nature of the testimony does not require any special knowledge or

experience in order for the jury to form it’s conclusions;

(3) Such testimony is an attack on the Plaintiff’s credibility and character by innuendo and suspicion;

(4) The expert cannot serve as a conduit to place otherwise inadmissible before a

jury; and

(5) The highly prejudicial impact of such testimony substantially outweighs any probative value.

A. Speculation and Conjecture

Testimony consisting of guesses, conjecture, or speculation (i.e. consisting of

suppositions without premise of fact) is inadmissible. Durrance v. Sanders, 329 So.2d 26 (Fla.

1st DCA, 1976). Qualification of a witness as an expert, as well as the range of subjects about

which the witness will be allowed to testify are within the trial judge’s broad discretion. Angrand

v. Key, 657 So.2d 1146 (Fla. 1995). There is absolutely no evidence in this case to suggest

that the Plaintiff, Patricia Doe is malingering. Even if there were evidence that the Plaintiff was

malingering, why or how she might do so is speculative and full of conjecture. An opinion must

be based in fact in order to meet the test of admissibility. Just because secondary gain is one

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reason why one might malinger, there may be thousands of others. To allow an expert to

provide testimony based upon speculation and conjecture is highly prejudicial. The mere vehicle

of its delivery (from the lips of one referred to as an “expert”) lends weight and believability to

testimony, that in reality is nothing more than speculation, conjecture, and argument.

B. It is improper to provide personal opinions or comment on the merits of the case and the credibility of the Plaintiff

The Defendants’ retained doctors, Ryan James and Mitchell Smith, or any other

witness should be limited from stating personal opinions about the Plaintiff. It is error to

state personal opinions about the merits of the case or credibility of the Plaintiff.1

It is improper to allow defense “experts” to talk of “malingering,” feigning injury or

1 See Wasden v. Seaboard Coast Line Railroad Co., 474 So.2d 825 (Fla. 2nd DCA 9185); Moore v.

Taylor Concrete & Supply Co., Inc., 533 So.2d 787 (Fla. 1st DCA 1989); Blue Grass Shows, Inc. v. Collins, 614 So.2d 626 (Fla. 1st DCA 1993); Nelson v. Reliance Insurance Co., 368 So.2d 361 (Fla. 4th DCA 1978); Riley v. Willis, 585 So.2d 1024 (Fla. 1st DCA 1991); Sacred Heart Hospital of Pensacola v. Stone, 650 So. 2d 656 (Fla. 1st DCA 1995). See also Feller v. State, 637 So. 2d 911 (Fla.1994)(error for expert to state belief that victim was telling truth); Tingle v. State, 536 So.2d 202 (Fla. 1989)(error to permit expert to testify she believed victim); Hitchcock v. State, 636 So.2d 572 (Fla. 4th DCA 1994); Acosta v. State, 798 So.2d 809 (Fla. 3th DCA 2001); Davis v. State, 527 So.2d 962, 963 (Fla. 5th DCA 1988).

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secondary gain. No legal principle is more firmly established in our system of jurisprudence

than that which makes the jury the sole arbiter of the credibility of witnesses, including the

reasonableness, probability and credibility of a witness.2 It is clear error and an invasion of the

jury’s exclusive province to permit one witness to offer his personal view and testify as to the

credibility of another witness.3 Opinion testimony from experts which directly serves to bolster or

detract from the credibility of a witness invades the province of the jury and should be

excluded.4 An “expert” cannot testify as to truthfulness or character of a party or witness.5

Dr. Ryan James, discussed in more detail below, provides opinions that the Plaintiff must

be exaggerating or malingering. His “exaggeration” theories, no matter what he may call them,

are simply comments on the credibility of the Plaintiff, without any basis in fact or evidence.

Similar to the testimony provided by Dr. James in this matter, the Court in Smith v. State, 674

So.2d 791, 793-794 (Fla. 5th DCA 1996) faced a similar situation with a much more

experienced expert witness. The expert witness (Lawson) opined that the child victim had been

2 Barnes v. State, 93 So.2d 863 (Fla. 1957).

3 Acosta v. State, 798 So.2d 809, 810 (Fla. 4th DCA 2001); Boatwright v. State, 452 So.2d 666,

668 (Fla. 4th DCA 1984)

4 Tingle v. State, 536 So. 2d 202 (Fla. 1988); Davis v. State, 527 So. 2d 962, 963 (5th DCA

1988) (error to admit opinion testimony of clinical psychologist); Fuller v. State, 540 So. 2d 182, 183-184 (5th DCA 1988) (error to admit opinion testimony of medical director); Luszczyk v. Department of Human Services, 576 So.2d 431 (5th DCA 1991) (error to admit psychologist and case worker testimony).

5 Hitchocock v. State, 636 So.2d 572 (Fla. 4th DCA 1994).

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sexually abused. The District Court held:

In contrast, Lawson provided no support for her opinion that the child in this case

had been abused. Lawson testified that she had interviewed approximately 750

victims of child abuse, and she reviewed the child’s deposition and her

statements to the police and the victim’s advocate, but she gave no foundation in

science, or any other area of specialized knowledge, for her belief that the child

had been abused. Since there is no foundation for this belief the expression of

this belief amounted to no more than an impermissible comment on the credibility

of the child.

Id.

C. The credibility of the plaintiff does not require any special knowledge or experience for the jury to form conclusions from the facts.

“[E]xpert testimony should be excluded where the facts testified to are of such a nature

as not to require any special knowledge or experience in order for the jury to form conclusions

from the facts.[Marvin] Johnson v. State, 393 So.2d 1069, 1072 (Fla. 1980). In [Paul]

Johnson v. State, 438 So.2d 774 (Fla.1983), the defendant sought to call a professor of

psychology as an expert witness in the field of eyewitness identification. Id. at 777. The expert

was to explain both the common problems in such identifications and the general factors

affecting a witness’ accuracy, as well as the suggestiveness of the lineup itself. Id. The Court

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held that “a jury is fully capable of assessing a witness’ ability to perceive and remember, given

the assistance of cross-examination and cautionary instructions, without the aid of expert

testimony. Id. There was no abuse of discretion in the trial court’s refusal to allow this witness

to testify about the reliability of eyewitness identification. Id.

The Third District faced similar issues in a wrongful death negligent security action in

which the plaintiff’s husband was killed after he was shot outside a bar after an altercation

inside and was thrown out. Smith v. Hooligan’s Pub & Oyster Bar, Ltd and Jay Love, 753 So.

2d 596, 598 (Fla. 3d DCA 2000).6 The Court held that the trial court properly excluded

Hooligan’s security expert’s opinion that David [the deceased and husband of the plaintiff] was

the aggressor based on character evidence and a review of eyewitness accounts and

depositions, invaded the province of the jury. Id. at 600. The Court further agreed with the trial

court that the matter of who was the aggressor in a fight is one within the ordinary

understanding of the jury. Id.

In Bullard v. State, 650 So.2d 631, 632 (Fla. 4th DCA 1995), the defendant argued that

the trial court erred in denying his request for the appointment of an expert on "police thought

control and coercion." The Defendant contended he needed this expert to testify that the threat

of death in the electric chair is sufficient to overcome the voluntariness of a confession. Id. The

Court held that the trial court did not abuse its discretion in finding that, “no expert was

6 The attacker in the bar pleaded no contest to the charge of second degree murder and was sentenced to

seven years in prison.

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required at bar since it is safe to say that the jury was capable of assessing without the aid of

an expert witness that the threat of death in the electric chair may have a coercive effect on

whether a suspect gives an in-custody statement.” Id.

In light of the fact that juries often give much credence to an expert’s testimony and

opinion, trial judges are cautioned to exclude such testimony where facts testified to are of a

kind that do not require any special knowledge or experience to form a conclusion, or are of

such character that they should be presumed to be within the common experience of all persons

moving in the ordinary walks of life. Mills v. Redwing Carriers, Inc., 127 So.2d 453 (Fla. 2nd

DCA 1961); See also Florida Power Corp. v. Barron, 481 So.2d 1309, 1310 (Fla. 2d DCA

1986)(recognizing that the importance and validity of testimony of an expert witness are

increased in the minds of the jury; thus allowing an expert to testify to matters of common

understanding creates the possibility that the jury will forego independent analysis of the facts

when it does not need assistance in making the analysis.).

D. Defendants’ experts are serving as a conduit to place otherwise inadmissable evidence before the jury.

Under FRE §704, an expert is generally permitted to express opinions which are based,

at least in part upon inadmissible evidence. Erwin v. Todd, 699 So. 2d 275, 277-278 (Fla. 5ht

DCA 1997). This rule is frequently used to permit doctors to base their medical opinions upon

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tests and laboratory reports which are not admitted into evidence. Id. However, the expert may

not merely be used as a conduit for the introduction of otherwise inadmissible evidence. Id. Also

see Maklakiewicz v. Berton, 652 So. 2d 1208, 1209 (Fla. 3d DCA 1995)(Reversible error to admit

expert opinion of police officer who was qualified as an accident reconstruction expert when the

opinion was based on the alleged observations of an unidentified homeless person and the

conclusions of a medical examiner who did not testify.); Ross Dress for Less, Inc. v. Radcliff, 751

So. 2d 126 (Fla. 2nd DCA 2000)(Testifying expert’s report should not have been admitted since it

contained hearsay information from other doctors which he relied upon in forming his opinion.

Admission of the report permitted expert to serve as a conduit for inadmissible evidence.); Kurynka v.

Tamarac Hospital Corp. Inc., 542 So. 2d 412, 413 - 414 (Fla. 4th DCA 1989)(In medical malpractice

action, results of report of independent outside laboratory showing cocaine in plaintiff’s urine could

not be disclosed to jury on basis that expert relied upon them in forming his opinion.). Further, an expert opinion that relies on otherwise inadmissible evidence is generally

excluded under FRE §90.403 because it’s probative value is outweighed by the danger of

unfair prejudice. Linn, 946 So. 2d at 1038.

E. The probative value of a “truth witness” is substantially outweighed by the

prejudicial impact

Section 90.403, Florida Statutes, states in part that “relevant evidence is inadmissible if

its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of issues,

misleading the jury, or needless presentation of cumulative evidence.” Professor Ehrhardt

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comments that although the trial court is accorded a “wide measure of discretion” to determine

whether the probative value of the evidence is substantially outweighed by any of the factors

listed in section 90.403, the court nevertheless is required to “weigh the proffered evidence

against the other facts in the record and balance it against the strength of the reason for

exclusion.” Ehrhardt, Florida Evidence § 403.1 (2005 ed.).

In Parker v. Hoppock, 695 So.2d 424, 426 (Fla. 4th DCA 1997), the defense sought to

introduce evidence that the plaintiff received governmental benefits. In support of its admission,

the defense argued that the evidence would be relevant to the plaintiff’s motivation to work. Id.

at 427. The Fourth District Court of Appeal held that evidence concerning a personal injury

plaintiff’s receipt of governmental benefits and resultant effect on the plaintiff’s motivation to

work was inadmissible pursuant to the collateral source rule. Id. at 428. In addition, the Court

stated:

Even if welfare benefits did not fit within the term “collateral sources,” the admission of testimony concerning receipt of welfare benefits as affecting motivation to work would still be impermissible. The very image of a plaintiff as one who accepts governmental handouts carries a substantial likelihood of prejudice that outweighs any marginal probative value.

Id. In coming to its conclusions, the Court considered the lack of empirical or scientific data

to support the defendant’s contention that an individual would prefer welfare to work. Id.

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III. DEFENDANTS’ “EXPERT” WITNESSES

A. Ryan JAMES James, M.D.

Ryan James, M.D. was hired to review all records; medical, employment, public, driver’s

license records of Patricia Doe and perform a compulsory medical exam (“CME”) through a five

and one half hour interview.7 The exam was performed on October 9, 2009, in a small

conference room at the Holiday Inn in Ft. Myers. The interview forms the basis of Dr. James’s

report and opinions and he questioned Patricia Doe about her entire life.

7 The Plaintiffs address the admissibility of many of those records in their Second Motions In Limine filed

with the Court and being heard on December 2, 2009.

Dr. Ryan James performed NO testing, such as the MMPI, the Computerized Assessment

of Response Bias, the Word Memory Test, the Dot Counting Test, or any other test that

evaluates a patient’s credibility or whether there is an indication of malingering. Such tests were

permitted by the Court. Please find attached Court Order on Defendant’s Request for a

Compulsory Psychological Exam as Exhibit 1.

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Dr. James is 33 years of age and graduated from medical school in 2003. He finished

his internship and residencies in 2006. In July 2007. He is a salaried employee who shares his

father’s assistant.8

8 It should be noted that Richard JAMES James, M.D. is one of the “busiest” compulsory medical

examiners for psychological and neuropsychological exams in the State of Florida.

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Dr. James issued a 53 page report on October 16, 2009, using a template for such

reports created and used many times by his partner. Please find attached Report as Exhibit

2.The focus of his report were inconsistencies or the appearance of inconsistencies. He

interviewed Patricia Doe for over 5 hours without showing her any records and compared her

reporting to hundreds of pages of records. Many of the records and questions have no

relevance or bearing on any potential psychological disorder, i.e, whether Patricia Doe

remembers how many traffic tickets she has received; how many men she has had sex with

prior to her husband; where she worked and why she left; her grades in the ninth grade and

whether she reported them correctly; and medical records, statements in the records, and

diagnoses that are unrelated to any of the injuries alleged in this matter. The only reason

that Dr. James discusses a lot of these facts is to act as a conduit for otherwise inadmissible

evidence and to accumulate “inconsistencies” as a method of attacking Patricia Doe’s honesty,

credibility, and ultimately her character. Dr. James’s final conclusions are ultimately that Ms. Doe

is not credible and should not be believed, whether expressly stated or not. It is important to

note that Dr. James admits that her recalled version of the events of the “incident” were

consistent throughout.9

Dr. James’s comments and/or opinions in his report are not within the “expertise” of a

9 Dr. James refuses to acknowledge that the unprovoked attack by two women resulting in being struck

several times, once in the eye resulting in permanent vision loss should not be described as an “attack,” but rather an

“incident.”

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psychiatrist, but are offered as a “truth” witness or “ a human lie detector:”10 “Inconsistencies,” if

any, are for the jury, not an “expert.”11 The following statements and/or opinions in his Report

are an example of the type of testimony the Defendants intend to elicit from Dr. James. For

instance,

Under the section titled, Employment History, Ms. Doe in the “interview” describes her work in the Emergency Room at Lee Memorial Hospital, in which Dr. James comments, “(Some question if she was actually ‘running codes’ or just participating because usually codes are run/lead by medical doctor or by staff of a higher level of training. This may be an embellishment on Mrs. Doe’s part);”

(See Dr. James’s report Pg 7)

Under the section titled, Relationship History, Ms. Doe described her relationship and the activities with her husband, Steven prior to the attack. Dr. James comments or opines in his report , “(Some indication from notes from Dr. James that the relationship had been strained after the incident at Kmart and Mrs. Doe’s reporting of the functional level of the relationship prior to September 30, 2005 may not be accurate per Dr. James’s notes.);”12

(See Dr. James’s report pgs. 8-9)

10 It is worth noting that even if Dr. James was a “human lie detector,” polygraph evidence is inadmissible. Farmer v.

City of Ft. Lauderdale, 427 So.2d 187 (Fla.1983).

11 FRE §90.702 states: “If scientific, technical, or other specialized knowledge will assist the trier of fact in

understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible

only if it can be applied to evidence at trial.”

12 Patricia Doe fell while holding her baby and suffered a neck/shoulder injury and thoracic outlet syndrome

in 2001. She treated with Dr. Graham, a psychologist for chronic pain related to the fall at Kmart.

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Under the section titled, Current Living Situation, Dr. James again opines and comments as follows:

“(Past records have indicated that the family was having some financial stress and that Mrs. Doe was even receiving treatment for a pain condition on a promissory note, with the notion that the bill would be paid in full if she received a settlement in her lawsuit against Kmart).” 13

(See Dr. James’s report, Pgs. 9-10)

Under the section titled, Legal History, Dr. James apparently asked Patricia Doe for all “difficulties or run-ins” with the law. Ms. Doe indicated she had “approximately” 2 speeding tickets and that the speeds were only 10 mph and does not believe she has ever been cited for reckless or careless driving. Dr. James cites an inconsistency in which Ms. Doe pursuant to “court records was cited for a seatbelt violation on 5/9/07 and was fined $71.50.”

(See Dr. James’s report, Pg. 10)

Under the section titled, Past Psychiatric History, she is questioned about her treatment with Dr. Michael Simes , her original treating psychologist in this case, who first saw her soon after the attack. Dr. James comments as follows:

“She notes that she has seen Dr. Simes once at her family’s request. She

13

Again, this is related to a “lawsuit” that was never filed and a possible letter of protection from the JMart

fall. She has received full and complete treatment form Dr. Daitch, her pain management doctor continuously since

her 2001 injury.

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believes that Dr. Simes had diagnosed her with PTSD, depression, and agoraphobia. She reports that she did not agree with the agoraphobia diagnosis, but later in the interview she gives conflicting impressions on whether or not she has difficulty leaving her house and why.”

(See Dr. James’s report, Pg. 11)

Further, under the same section, Dr. James comments on past records, “that indicate that Mrs. Doe had sought counseling through her work for issues with her first husband [not Steven Doe], which she did not mention in this interview.”

(See Dr. James report, Pg. 12)

Under the section titled, Current Psychiatric Symptoms, Dr. James commented on the treatment received as a result of the attack, as follows:

“She indicates that Dr. Simes had picked Dr. Rail for her to see off a list that her insurance company provides. (This is in contradiction to what Dr. Simes had said in his deposition that he did not choose or endorse Dr. Rail to Mrs. Doe.)”

(See Dr. James’s report, Pg 12)

Under the same heading, Current Psychiatric Symptoms, Dr. James further commented, as follows:

“Earlier during the course of the evaluation, she was asked if any of the symptoms she developed after the incident at Big Mart had ever improved or remitted, she initially said no. Later during the course of the evaluation, she did report that ‘the intrusive reliving feeling as if it was the experience’ had actually

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been worse, but improved a little bit with time. (This occurred after she had a 40-minute break for lunch.)”

(See Dr. James’s report, Pg. 13)

Under the same heading, Current Psychiatric Symptoms, Ms. Doe reported she had difficulty with loud noises. In his interrogation, Dr. James commented and opined, as follows:

“She reports that she has difficulty with loud noises. She states she keeps the radio in her car on 2 (On most cars, a setting of 2 is barely audible, if at all.) She notes that she often has to tell her son to turn down the volume when he listens to the music in the car. When asked if she has problems with all music, she was very conflicting in her statements. She initially says, ‘I don’t like loud kind of head banger music,’ but then reported she did like Kiss, but then stated it is now classic rock.”

(See Dr. James’s report, Pg. 14)

Under the same heading, Current Psychiatric Symptoms, when asked about her current sleep patterns, Dr. James commented and opined:

“She does give inconsistent answers here. Earlier when asked about dreams, she reported that her dreams frequently wake her up, but once she was talking about noises, she stated that the noises woke her up.”

(See Dr. James’s report, Pg. 15)

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Under the section titled, Activities of Daily Living, when discussing an incident in which Ms. Doe was bitten by a dog (wholly unrelated to any of the facts or issues in this matter), Dr. James commented and opined, as follows:

“I discussed that there was an ER note where she had been bitten by a dog. She did report that she was alone at that time and she believed the dog bit her because she was waving a piece of paper. However, the ER note states that there were two dogs fighting and that she broke up the dogs. She did state that the other dog was fighting with a dog, but that it bit her because she had a piece of paper in her hand.”

(See Dr. James’s report, Pgs. 21-22)

Under the section titled, Summary of Records Reviewed, Dr. James summarized and opined or commented on medical records, sometimes outside of his stated degree as a psychiatrist. He selected facts he felt were “relevant” as to Patricia Doe’s “credibility” as follows:

“On doctor follow-up on 7/16/07, mood is again listed as normal. Under impression, this time depression is not listed, nor is any other psychiatric diagnosis given (This indicates that the notes at times are inconsistent with previously made diagnoses)”

(See Dr. James’s report, Pg. 34)

Further, under the same heading, Summary of the Records Reviewed, Dr. James in his review of prior treating psychologist, Dr. David James, who treated Patricia Doe for chronic pain syndrome in 2003, wholly unrelated and prior to the attack at Big Mart makes reference to a Personality Assessment Inventory (PAI), a test

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conducted by Dr. James on March 27, 2003 [The test was provided a standardized score by individuals who never treated nor spoke with Patricia Doe]. Dr. James makes specific reference to the standard response that, “with a test date of 3/27/03, noted regarding the validity of test results that, ‘certain of these indicators fall outside of the normal range, suggesting that the respondent may not have answered in a completely forthright manner; the nature of responses might lead the evaluator to form a somewhat inaccurate impression of the client based upon the style of responding described below.’”

(See Dr. James’s report Pg. 46)

Dr. James was asked in his deposition on November 4, 2009 about his ability to administer and interpret the PAI conducted in 2003. The following are some of the questions and responses:

Q. Did you read the personality assessment inventory? A. I read the summary report on it. I’m not a psychologist, I didn’t try to interpret the data.

(Dr. James deposition, pg.82)

Q. So you include the areas [of the PAI] that talk about her being defensive, but you leave out the area that indicates that she’s not exaggerating. Don’t you think that’s a little one-sided view of this [PAI] report? A. No.

Q. Okay, Doctor, there is a Post Traumatic Personality Assessment that was given to this lady before this attack. Are you aware that it was not elevated?

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A. I don’t recall that right now. (Dr. James deposition, pg. 83-84)

Under the section titled, Diagnostic Impression, Dr. James provided some of his final opinions, as follows:

“When interviewed, Mrs. Doe minimized her past psychiatric history and indicated she had only targeted symptoms in response to pain that she reported being improved/resolved by October 2003 due to total pain control. The validity of this assessment is called into question due to:

1. Her still reporting pain to her pain doctor after that date;

2. Her applying and receiving continuing disability;

3. Her lawyers (Law Office, which was representing her Social Security claim) requesting Dr. James’s records on 7/13/06 because: ‘these records and the form are very important to her case. Without this information, she could lose a substantial amount of money.’14

(See Dr. James’s report, Pg.50)

In addition to the previously mentioned concerns about her minimization of symptoms which could be due to multiple reasons such as recall bias

14

The foregoing references are related to Ms. Doe’s injury in 2001 and are prior to the attack at Big Mart

on 9/30/05. Her application and/or receipt of social security disability has no bearing on any of her damage claims.

The physical injury is entirely different and there are wage loss or loss of earning capacity claims alleged.

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(a.k.a. the good old days effect), stress of litigation (e.g., having to justify symptoms in a hostile litigious environment), or outright malingering of symptoms for secondary gain, there are other response patterns that occurred during this evaluation which raise the concern that Mrs. Doe is exaggerating post-traumatic response symptoms. The following are response patterns that suggest exaggeration:

1. Symptoms described appear to be rehearsed and follow an unexpected course:

d. Reports concentration problems and gives examples of not having enough concentration to make breakfast, but does not demonstrate any ‘cognitive problems’ or concentration difficulties of the mental status exam.

e. Reports having symptoms such as hyperstartle and being intolerant to loud noises, which was not readily evident during the evaluation (e.g. then the videographer knocked on the door).

f. Describes triggers that were frequently cited in historical literature such as ‘car backfiring,’ which does not frequently occur in more modern times.

2. Provides answers to questions, calls attention to symptoms, or denies engaging in likely behaviors in a way which appears to be the ‘correct’ answer for someone wanting to appear ill.

c. It is not credible that someone who reports that she always

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looks up potential side effects of medications and keeps all of her medical records would not look up a psychiatric condition that she has been diagnosed with, prescribed a medication for, and believed that only people in combat would get.

3. A reported desire for ‘someone’ to answer for her injury, even if it is not the people who allegedly attacked her.

Even with concern that Mrs. Doe is exaggerating and possibly totally

fabricating some of her symptoms, she is likely suffering from some form of psychiatric disorder, depressive or anxiety type of illness.”

(See Dr. James’s report, Pgs. 50-52)

The terms “gross exaggeration,” or “potential gross exaggeration” are speculative terms that Dr. James used to show “inconsistencies” in Ms. Doe’s historical reporting, most which had nothing to do with the attack.

Q. For example, Doctor, are you saying her dreams, the fact that she has the same dream is an example of potential exaggeration? A. Yes, that is a potential of an exaggeration.

Q. Okay. And having no improvement with treatment and therapy, is that an example of gross exaggeration? A. It’s not an example of gross exaggeration.

Q. Is it an example of a potential gross exaggeration? A. Yes.

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(See Dr. James’s deposition, pg.142)

Q. Other than the issues listed on page 51 and 52, do you have any other specific examples that lead you to believe or qualify as a potential gross exaggeration? A. ....And the records I have, and I’m not sure if they’ve complete or not, would indicate that she had failing grades in the ninth grade and possibly left school in the ninth grade, whereas she told me she was in school all the way up to the twelfth grade. That seems to be a gross exaggeration.

(See Dr. James’s deposition, pg.146)

Dr. James expresses opinions in “gross exaggeration,” or “potential gross exaggeration” and it is another way of saying Ms. Doe cannot be believed.

Q. Doctor, I would like you to define the term, malingering. A. Malingering is the gross exaggeration of symptoms, gross exaggeration of symptoms for secondary gain.

Q. Is it intentional or unintentional? A. It’s intentional.

Q. Okay, So malingering is lying isn’t it? A. It’s a form of lying.

(See Dr. James deposition, pgs. 60-62)

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B. James Jones

James Jones is a “security expert” retained by the Defendant, NSIA. He has been

retained to provide opinions as to the security guard, however more significantly as to the attack

and attackers. He testified in his deposition that, “ the two black females [the attackers] could

not have had any reasonable expectations of getting away with this behavior, even though they

did - - even though they didn’t get apprehended, they couldn’t have had a perception they

were going to get away with it because they were easily identified, they committed the assault

in front of several witnesses, and they walked to their own vehicle. All these things are just not

consistent with traditional criminal behavior.” (See Jones deposition, pg. 52, lines 2-10).

Jones’ opined as to what was in the minds of the two unknown attackers who have remained

unidentified and have never been apprehended for the purpose or conclusion that the attack was

not preventable. When questioned specifically about this testimony, Jones responded as follows:

Q. And he [Steven Doe] was standing there with his wife when they attacked, or did he see the attack and try to get to these women to prevent it from getting worse?

A. Well, I’m not sure about proximity, but he was right at the front - - I mean, they [the attackers] were clearly aware he was there.

Q. And you know that by how? A. By reading the documents.

Q. Did you speak to these woman or are you just speculating what was in their

mind? A. I am speculating.

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Q. And when we draw these opinions, we want them to be based in fact, correct? A. That is correct.

(See Jones deposition, pg. 70, lines 5-18).

This is the same speculative opinion testimony properly excluded by the Court in Smith v.

Hooligan’s Pub & Oyster Bar, Ltd and Jay Love, 753 So. 2d 596, 598 (Fla. 3d DCA 2000)

discussed above.

C. Mitchell Smith, M.D.

Dr. Mitchell Smith, a Neurophthalmologist retained by the Defendants reviewed Patricia

Doe’s medical records and examined her on October 6, 2008. He performed objective testing

the same day. His testimony and opinions concur for the most part with the Plaintiff, Patricia

Doe’s treating Neurophthalmologist, Dr. Sampson.15 They agree that Ms. Doe’s left eye has

suffered permanent nerve damage and vision lost as a result of the attack on September 30,

2005 and that this was determined through objective testing. In light of Dr. Smith’s testimony as

to the nature of her injury, the cause, and the permanency, he, at the very end of his deposition

opined that Patricia Doe is exaggerating her symptoms.16

15

The Plaintiffs have not retained any medical or psychological experts in this case and rely on the

testimony of Ms. Doe’s treating physicians and psychologists.

16 Exaggeration is defined by Merriam-Webster as: “The act of exaggerating; the act of doing or

representing in an excessive manner; a going beyond the bounds of truth, reason, or justice; a hyperbolical

representation; hyperbole; overstatement.”

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Q. Doctor, do you believe that Patricia Doe is exaggerating her symptoms? A. She may be. I don’t know. I am not - -

Q. Do you have an opinion one way or another?

A. No, not really. I have a sense that she is exaggerating a bit, but there is objective evidence with the trace relative afferent pupillary defect, the objective evidence that they saw CME and irritis, and that the fact that her visual fields are relatively consistent over the past three years, almost four years.

(Dr. Smith deposition, pgs. 73, Lines 19-25; Pg 74, Lines 1-5).

IV. CONCLUSION

In the current political climate, there is no doubt that plaintiffs may be perceived as

“fakers” before

they ever walk into a courtroom. This is a difficult enough burden to overcome without the

additional highly prejudicial burden of “secondary gain” testimony at trial. “Secondary Gain”

testimony seeks to imply, without any factual basis whatsoever, that the particular Plaintiff in

this particular case is “faking” or “exaggerating” her injury(ies) for financial gain. There is

absolutely no evidence or empirical data to substantiate this. This type of non-evidentiary

“name calling” changes the jury trial from a search for the truth to a political “negative ad

campaign” against the plaintiff. It diverts the jury’s attention from the evidence presented by

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both sides to the “charged words” and innuendos being thrown at them by the defense.

Accordingly, by its very nature this type of testimony should be and by law is not

admissibile in a fair trial.

WHEREFORE, Plaintiffs, Patricia and Steven Doe move this Honorable Court for an

Order limiting and/or striking the testimony of Defendants’ expert witnesses outlined above,

and for such further relief as this Honorable Court deems just and proper.

Respectfully Submitted,

______________________

I HEREBY CERTIFY that a true and correct copy of the foregoing was emailed,

faxed, and mailed this ___day of November,

____________________________ Jon M. Herskowitz, Esq.