Anna Dubrovsky, Esq., SEN 197116
`Pavel Krepkiy, Esq., SEN 269855
`Holly A. Latz, Esq. SEN 198015
`ANNA DUEROVSKY LAW GROUP, INC.
`750 Eattery Street, Suite 700
`San Francisco, CA 94111
`Telephone: (415)746-1477
`Facsimile; (415) 746-1478
`
`David W. Chen, Esq., SEN 184071
`LAW OFFICE OF DAVID W CHEN, PC
`1300 Clay Street, Suite 600
`Oakland, CA 94612-1913
`Phone: (510) 575-0851
`Fax: (510)201-1577
`
`Attomeys for Plaintiff, Eduardo Monteagudo
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`ELECTRONICALLY
`F I L E D
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`Superior Court of California,
`County of San Francisco
`09/09/2019
`Clerk of the Court
`BY: ERNALYN BURA
`Deputy Clerk
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`SUPERIOR COURT OF THE STATE OF CALIFORNIA
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`IN AND FOR THE COUNTY OF SAN FRANCISCO
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`Eduardo Monteagudo,
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`CASE NO.: CGC-18-564199
`
`Plaintiff,
`
`V.
`
`Greentree Property Management, SF 267 Green
`Street, LLC and DOES 1 to 20, inclusive.
`
`Defendants.
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`PLAINTIFF'S MOTION IN LIMINE NO. 19
`TO EXCLUDE EVIDENCE OF DR. LAM
`OR DR. FONG'S UNFOUNDED
`ACCUSATIONS OF PLAINTIFF SHOWING
`"DRUG SEEKING" EEHAVIOR AND
`ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
`
`Trial Date: September 9, 2019
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`PLAINTIFFS MOTION IN LIMINE NO. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG'S UNFOUNDED
`ACCUSATIONS OF PLAINTIFF SHOWING "DRUG SEEKING" BEHAVIOR AND AinTiRNATIVELY, REQUEST FOR
`
`SECTION 402 HEARING
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`Plaintiff Eduardo Monteagudo moves this Court for an order, in limine, to prohibit the
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`Defendants from attempting to introduce any testimony or any documentation concerning:
`1. Dr. Lam’s statements that Plaintiff was showing signs of drug-seeking behavior; and
`2. Dr. Fong’s statements that Plaintiff was showing signs of drug-seeking behavior; or
`3. Alternatively, due to the highly prejudicial and unwarranted nature of the statements,
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`Plaintiff requests a 402 hearing to determine the nonexistence of foundation for these
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`two statements, as well as the lack of training, expertise and knowledge of the two
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`doctors attempting to opine on drug addiction issues.
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`FACTUAL BACKGROUND
`
`
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` Plaintiff Monteagudo has underlying medical conditions that require prescription
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`medication; for example, ADD/ADHD, anxiety, and back injuries.
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`
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`Plaintiff cooperated fully in discovery in this case, and produced medical records reaching
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`back as far as ten years ago. Plaintiff was open about his medical issues. Plaintiff has been honest
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`about his use of opioids for back pain, and his use of Valium for anxiety. Plaintiff has also taken
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`Wellbutrin for smoking cessation. Now, however, Defendants seek to benefit from exploiting
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`Plaintiff’s medical history and highlighting a statement made by his treating physician and repeated
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`by another, that he exhibited “drug-seeking” behavior.
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`
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`Plaintiff has been diagnosed with anxiety and panic disorders by a psychiatrist prior to the
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`subject incident and has been taking several types of benzodiazepines before and after the incident.
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`
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`Plaintiff also suffered from an injury to his lumbar spine when he was a child which resulted
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`in severely herniated disc. Over the years he had various incidents that exacerbated his back
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`condition requiring him to get prescriptions for opioids to manage his pain. Mr. Monteagudo was
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`taking Norco prescribed by his medical providers before and after the incident. After the incident he
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`in addition to exacerbation of his back pain he sustained an injury to his penis that caused him to
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`have pain with erections and intercourse and he needed more pain medication.
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`
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`However, approximately a year ago Mr. Monteagudo stopped taking any opioids. He was
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`able to wean himself off the opioids without any special treatment. Nevertheless, defendants will try
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`PLAINTIFF’S MOTION IN LIMINE NO. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG’S UNFOUNDED
`ACCUSATIONS OF PLAINTIFF SHOWING “DRUG SEEKING” BEHAVIOR AND ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
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`

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`to portray Mr. Monteagudo as a drug addict who is going from one doctor to another asking for
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`benzos and opioids.
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`Defense attorney took depositions of numerous plaintiff’s medical doctors and tried to elicit
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`testimony from them that would help them to attack credibility of plaintiff by using his history of
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`prescribed medications as a ground to call him a drug addict.
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`Most importantly Mr. Monteagudo’s history of taking benzos for his anxiety and pain
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`medications for his herniated disc and back issues have nothing to do with this case.
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`RELEVANT TESTIMONY OF PLAINTIFF’S TREATING DOCTORS THAT
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`DEFENDANTS WANT TO PLAY FOR THE JURY
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`Plaintiff’s primary care physician (CV from the website is attached to Decl of Krepkiy as
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`Exhibit A) claims that Plaintiff had drug addiction issues, but he has no training in pain management
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`or drug addiction and admitted it was just a “suspicion”:
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`Decl. Krepkiy, Exh. B, Lam Depo. Page 97:
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`@mNOOI
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`Q. And at this appointment on January 6th, 2012,
`did Mr. Monteagudo tell you he wants to stop Alprazolam
`and switch to Valium?
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`A. Yeah, to switch to Valium.
`Q. What is the difference between Alprazolam and
`10 Valium?
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`A. Well, the Alprazolam is more or less for
`11
`anxiety panic attacks Diazapam basically just for
`12
`anxiety. They based both with benzole.
`13
`Q.
`In the medical record you write, "I, frankly,
`14
`15 pointed out to him that some patients like Valium
`16 because it has that surge effect they taking it." Do
`17 you see that?
`18
`A. Yes, correct.
`19
`Q. Were you concerned that Mr. Monteagudo wanted
`20 Valium so he could get a surge affect?
`21
`A. Some people take the Valium to get high. When
`22 they surge - when they surge, they get high.
`23
`Q. Were you concerned that that was why Mr.
`24 Monteagudo was asking to switch drugs?
`25
`A. That's correct.
`
`Page 98
`Q. And under Assessment/Plan on page 2 of this
`record, it was your assessment you suspected the
`patient, Mr. Monteagudo, to continue to have
`drug-seeking behavior; is that right?
`A. Yes.
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`Q. What does it mean to have drug-seeking
`behavior?
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`A. Well, when a person from regular long-acting
`medication wants to switch to short acting, they always
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`toooflotnhoaro—I»
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`-3-
`PLAINTIFF’S MOTION IN LIMINE NO. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG’S UNFOUNDED
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`ACCUSATIONS OF PLAINTIFF SHOWING “DRUG SEEKING” BEHAVIOR AND ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
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`10 want to get the high surge feeling. So that's the kind
`11
`of thing that we worry that people may take it for that
`12 purpose, to get high not for the anxiety problem.
`13
`Q. Did you do anything in response to your
`14 assessment that Mr. Monteagudo had drug-seeking
`15 behavior?
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`A. Rephrase that again.
`16
`Q. Did you do anything in response to your
`17
`18 conclusion that you suspected Mr. Monteagudo to have
`19 drug-seeking behavior?
`I'm not saying he is.
`20
`A. No. Ijust expect.
`21
`I'm suspecting that he might have.
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`Plaintiff was prescribed Valium for anxiety. Yet, Defendants now seek to introduce Dr.
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`Lam’s “suspicion” documented three years prior to the accident, that Mr. Monteagudo’s behavior as
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`“drug—seeking” in 2012. Later, Dr. Lam admitted that he was out of his league with global pain
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`management, and referred Plaintiff to UCSF. “I then referred him to the pain clinic at UCSF.” Id. at
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`217:10 -11.
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`Additionally, Dr. Fong, (Decl. Krepkiy Exh C, CV of Fong) piggy-backed on Dr. Lam’s
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`unfounded suspicions regarding “drug seeking” behavior of Plaintiff. Yet, instead of prescribing
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`patches or injections, Dr. Fong himself prescribed Plaintiff with Norco in 2017. Plaintiff had serious
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`health conditions, substantiated by objective medical findings, which rendered him in severe pain.
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`Seeking pain relief was not for fun or recreation; it was to alleviate human suffering:
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`Decl. Krepkiy, Exh. D, Fong Depo. Page 83:
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`Q. All right. Now, let's continue to look at
`13
`14 Exhibit 5 and let's talk about pain generators.
`15
`Can a herniated disc cause pain?
`16
`A. Can a herniated disc cause pain? Yes.
`17
`Q. Can nerve impingement cause pain?
`18
`A. Yes.
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`Q. Can stenosis cause pain?
`A. Yes.
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`Q. Can degenerative disc disease cause pain?
`A. Yes.
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`Q. Now, someone with a spine condition similar to
`23
`24 Mr. Monteagudo, would this patient tended to have
`25 exacerbation of their back problems?
`Page 84
`Incomplete
`MR. WlTHERS: Objection. Vague.
`1
`2 hypothetical. Calls for speculation. Lacks foundation.
`3
`THE WITNESS: Yes.
`4 BY MS. DUBROVSKY:
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`Q. Would those type of patients be more
`5
`susceptible to an injury to their spine because of their
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`7 preexisting condition?
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`PLAIN'I'IFF’S MOTION IN LIMINE NO. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG’S UNFOUNDED
`
`ACCUSATIONS OF PLAINTIFF SHOWING “DRUG SEEKING” BEHAVIOR AND ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
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`Incomplete
`MR. WITHERS: Objection.
`8
`9 hypothetical. Vague. Calls for speculation. Lacks
`10 foundation.
`11
`THE WITNESS: Yes.
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`Fong Depo. Page 87:
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`Q. So now going back to the visit of
`4
`5 November 27th, 2017. So Mr. Monteagudo came to you
`6 explaining that he -- his problem was fluctuating?
`7
`A. What's that?
`8
`Q. When he came to you, he said that the problem
`9 was fluctuating. He was referring to his back pain?
`10
`A. Yes.
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`Q. And that it occurred persistently and the
`location was the low back?
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`A. Yes.
`13
`Q. And that it was radiating into his back left
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`thigh and right thigh?
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`A. Yes.
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`Q. And that would be consistent with
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`radiculopathy, lumbar radiculopathy?
`18
`A. Yes.
`19
`Q. And it would also be consistent with his MRI
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`findings; correct?
`21
`A. Yes.
`22
`Q. Then he described his pain as "aching,
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`24 shooting, stabbing, and throbbing." Do you see that?
`25
`A. Yes
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`Dr. Fong knew Plaintiff was in physical pain:
`Fong Depo. Page 124:
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`Q. Even with standing erect; correct?
`9
`A. Yes.
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`Q. So even when he was standing in erect position,
`10
`11 he still had tight -- hamstring were tight; correct?
`12
`A. Yes.
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`Q. And that would be consistent with someone
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`14 having pain in the lumbar spine?
`15
`A. Yes.
`16
`Q. And the tenderness of a sciatic nerve is also
`17 consistent with somebody having pain?
`18
`A. Yes.
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`Q. And muscle spasming is something that you can
`19
`20 actually palpate when you examine a spine?
`21
`A. Yes.
`22
`Q. And all those condition would be consistent
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`23 with somebody who comes to you with complaints of pain
`24 in his back; correct?
`25
`A. Yes.
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`Fong Depo. Page 96.
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`Q. And, in fact, when he came to see you, he
`2
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`-5-
`PLAINTIFF’S MOTION IN LIMINE NO. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG’S UNFOUNDED
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`ACCUSATIONS OF PLAINTIFF SHOWING “DRUG SEEKING” BEHAVIOR AND ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
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`

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`(OGJ‘IOU'Ih
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`right?
`A. That's whatl recorded in the history.
`Q. So you already knew that he was getting that
`medication prescribed by another medical provider?
`MR. WlTHERS: Objection. Lacks foundation.
`incomplete hypothetical.
`BY MS. DUBROVSKY:
`Q. Correct?
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`lwould presume that‘d be true.
`A.
`Q. And so then but you felt that, based on your
`examination and MRI findings, that it was appropriate
`for you to prescribe Norco and anti-inflammatory
`medication for Mr. Monteagudo on November 27I 2017?
`MR. WlTHERS: Objection. Compound.
`THE WITNESS:
`I did give him Norco on that
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`visit.
`BY MS. DUBROVSKY:
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`Q. And you thought it was appropriate given his
`MRI findings and your exam findings; correct?
`MR. WlTHERS: Objection. Compound.
`THE WITNESS: Based on that visit, i gave him
`Norco.
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`Fong Depo. 104:
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`Q. Now, have you discussed any other pain
`medications with Mr. Monteagudo other than opioids to
`help with his pain?
`A. No.
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`Q. Have you seen discussed Lidoderm patches, for
`example?
`A. No.
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`Q. Have you discussed any other non-opioid pain
`management options with him?
`A. No.
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`Q. What are other pain management options that
`exist for back pain other than opioids in terms of
`patches, medications, or anything like that?
`A. The only two that I use with any regularity
`other than opioids would be something like Ultram, a
`cousin of an opiate but not a specific narcotic.
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`Fong Depo. Page 101:
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`\immau
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`Q. So why would he need to see pain manage --
`other pain management doctor when in fact you also
`provide pain management yourself?
`A.
`I do not specifically offer global pain
`management.
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`Contrary to Dr. Lam and Dr. Pong, Dr. Martinovsky (Decl. Krepkiy at Exh E, CV of
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`Martinmrsky) does have experience, training, and education specializing in global pain management.
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`He carefully reviewed Plaintiff5 medical history and examined Plaintiff. He found that Mr.
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`—6—
`PLAINTIFF’S MOTION IN LIMINE NO. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG’S UNFOUNDED
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`ACCUSATIONS OF PLAINTIFF Sl-IOVVING “DRUG SEEKING” BEHAVIOR AND ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
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`Monteagudo d1_'d_no_t meet the definition of a “drug-seeking” behavior. Instead, Monteagudo suffered
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`from a poor match of medications with his symptoms, as happens when various medical providers
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`are treating different conditions, and not collaborating with each other. Plaintiff suffered pain in his
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`back and pain in his penis, and he should have been given slow-release medications instead of fast-
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`acting ones that wear off quickly, such as Norco, prescribed by Dr. Fong:
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`Decl. Krepkiy, Exh. F, Depo. Martinovsky Page 161:
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`It's the patient seeking additional
`medication or stronger medication to be able to
`cover legitimate painful complaints.
`And in his case, he didn't have one painful
`complaint. He had major pain in his low back and
`major pain in his penis area. And as | testified
`earlier, the drugs that he was -— the medications
`that he was on were not by far adequate, and I don't
`believe that he in fact was referred to a pain
`management specialist. None of the doctors he was
`seeing other than UCSF, who saw him once, are - are
`pain management specialists.
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`Objective findings and diagnoses caused Mr. Monteagudo significant pain:
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`Depo. Martinovksy 162:
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`Q. And you haven't done any objective testing
`on Mr. Monteagudo's level of pain at any time,
`correct?
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`MS. DUBROVSKY: Misstates evidence; lacks
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`Page 163
`1
`foundation; assumes facts not in evidence;
`argumentative; incomplete hypothetical.
`THE WITNESS: Well, you can't really
`objectively measure somebody's pain. There's no way
`you can objectively measure somebody's pain level.
`You can objectively obtain confirmation of where the
`pain is coming from. So in his case, the objective
`findings are the MRI findings and the fact he has —
`has been noted to have - he was diagnosed with
`Peyronie's disease by a urologist.
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`(OGDNCDO‘I-bWN
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`10
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`Depo. Martinovksy 163:
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`Q. So what is your basis, then, for testifying
`that Mr. Monteagudo‘s pain was not adequately
`managed?
`A. Just knowing what he was prescribed, how
`much he was prescribed, and how long those
`medications really work for.
`It's my personal
`experience and training using this - the type of
`medications in my own patients, and then managing
`them - their pain with other forms of medications
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`-7-
`PLAINTIFF’S MOTION IN LIMINE NO. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG’S UNFOUNDED
`ACCUSATIONS OF PLAINTIFF SHOWING “DRUG SEEKING" BEHAVIOR AND ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
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`21 that have a longer-acting formulation.
`22
`Q. So you think he should have gotten stronger
`23 opioids?
`24
`A. Not necessarily stronger - maybe stronger.
`25 Maybe he - the doses were probably not adequate,
`Page 164
`but -- but I think the key thing would be to change
`the -- the mechanism from the immediate release,
`which is what Norco is, to a long-acting over time
`release, which is what extended release formulations
`are. And none of the doctors that I saw treating
`him have done that or considered it. And so what he
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`(DQ‘IOJU‘I-FOJNA
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`was taking. Norco, would cover his pain for maybe
`two hours at most.
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`And in my opinion - I know he wasn't
`10 taking Norco every two hours on the clock. so in my
`11 opinion that would leave his pain uncovered for the
`12 greater part of the day and night.
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`The CVS of both doctors are completely void of any addiction or pain management
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`experience, training, or knowledge. As such, Defendants’ introduction of Dr. Lam and Dr. Fong’s
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`statements regarding unfounded statements that Plaintiff was seeking pain medications for
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`recreational, fun, or improper use, lack the basic factual foundation to be admissible at this trial.
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`LEGAL ARGUMENT
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`A. DR. LAM AND DR. FONG’S TESTIMONY REGARDING PLAINTIFF’S ALLEGED
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`“DRUG-SEEKING” BEHAVIOR AS WELL AS ANY OPINIONS REGARDING
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`PLAINTIFF’S CREDIBILITY, INCLUDING SECONDARY GAIN AND
`MALINGERING SHOULD BE EXCLUDED BECAUSE LAM AND FONG ARE
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`NOT TRAINED IN PAIN MANAGEMENT OR ADDICTION, AND TESTIFYING
`ABOUT SO-CALLED “DRUG-SEEKING” BEHAVIOR WOULD BE OUTSIDE OF
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`THEIR EXPERTISE AND INFLAME THE JURY.
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`A person is qualified to testify as an expert if he has special knowledge, skill, experience,
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`training, or education sufficient to qualify him as an expert on the subject to which his testimony
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`relates. Against the objection of a party, such special knowledge, skill, experience, training, or
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`education must be shown before the witness may testify as an expert. Evidence Code §720.
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`Evidence Code § 803 provides in pertinent part:
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`The court may, and upon objection shall, exclude testimony in the form of an opinion that is
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`based in whole or in significant part on matter that is not a proper basis for such an opinion.
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`California cases hold that an expert opinion which is based on speculation or conjecture has no
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`-3-
`PLAINTIFF’S MOTION IN LIMINE NO. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG’S UNFOUNDED
`ACCUSATIONS OF PLAINTIFF SHOWING “DRUG SEEKING” BEHAVIOR AND ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
`
`

`

`evidentiary value and is inadmissible. Similarly, an opinion which is not based on good science is
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`inadmissible. In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558; Geffcken V. D'Andrea
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`(2006) 137 Cal.App.4th 1298.
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`In Hyatt 1). Sierra Boat Co. (1978) 79 Cal.App.3d at 338. at page 338, the court held that an
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`"expert opinion must not be based upon speculative or conjectural data." In a footnote, the court of
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`appeal indicated that the trial court had exercised its discretion to exclude the testimony under
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`Evidence Code § 352 (Ibid., fn.5). In Kama/é y. At/a: Hate/I, Im‘, the court stated several factors that a
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`trial court should take into account in ruling upon the propriety of particular foundation matter
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`including necessity, reliability, speculation and conjecture.
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`A good summary of the rule is found in the recent case of Gqfiken II. D'Andn’a (2006) 137
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`Cal.App.4th 1298: ..."the matter relied on must provide a reasonable basis for the particular opinion
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`offered, and that an expert opinion based on speculation or conjecture is inadmissible..." In re
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`Lockheed Litigation Case: (2004) 115 Cal.App.4th 558, 564.
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`The value of opinion evidence rests not in the conclusion reached but in the factors
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`considered and the reasoning employed. "Where an expert bases his conclusion upon assumptions
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`which are not supported by the record, upon matters which are not reasonably relied upon by other
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`experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no
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`evidentiary value.’ [Citation.]“ In re Lock/iced Litigation Carey, supra, 115 Cal.App.4th at p. 563.) Geflnéen
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`a D’Andma (2006) 137 Cal.App.4th 1298, 1310—1311; emphasis added. "Like a house built on sand,
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`the expert's opinion is no better than the facts on which it is based," Kemem/r 22. State qua/gfirmz'a
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`(1982) 133 Cal.App.3d 907, 923. See also Richard v. Scott (1978) 79 Cal.App.3d 57, 64 (trial court
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`erred in admitting opinion evidence of accident reconstruction expert Where there was insufficient
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`evidentiary support for opinion.)
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`Dr. Lam and Dr. Fong’s statement that Plaintiff showed “drug-seeking” behavior is based on
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`suspicion and conjecture. Neither Dr. Lam nor Dr. Fong possess education, experience, training or
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`PLAINTIFF’S MOTION 1N LIMINE No. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG’S UNFOUNDED
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`ACCUSATIONS OF PLAINTIFF SHOWING “DRUG SEEKING” BEHAVIOR AND ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
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`licensure that would establish qualifications to give opinion testimony on global pain management or
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`drug addiction. Therefore, Defense should be precluded from eliciting their statements on this topic.
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`The danger of unfair prejudice is significant here because juries are highly susceptible to the
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`statements of experts, especially doctors. Plaintiff’s right to a fair trial on the merits of the case will
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`be destroyed if experts can walk in to the courtroom and sling comments around about drug—use and
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`addiction without the resumes to justify the testimony.
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`B. DR. LAM AND FONG’S OPINIONS REGARDING PLAINTIFF’S CREDIBILITY,
`INCLUDING SECONDARY GAIN, ISSUES AND MALINGERING SHOULD BE
`EXCLUDED BECAUSE THESE MATTERS ARE NOT PROPER SUBJECTS FOR
`EXPERT TESTIMONY AND THEIR TESTIMONY IS COMPLETELY
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`SPECULATIVE
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`Motive is Not a Proper Subject for Expert Testimony: Kotla v. Regents of the Univ. of
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`California (2004) 115 Cal.App.4th 283 at 293, holds that an expert may not testify as to “motive”.
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`“Absent unusual facts, it must be presumed that jurors are capable of deciding a party's motive for
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`themselves without being told by an expert which finding on that issue the evidence supports.”
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`Witnesses May Not Testify as to Credibility of Another Witness: This type of testimony or
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`evidence is improper as a matter of law as it is the jury's exclusive function to determine "questions
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`of fact and the credibility of witnesses." People v. Sanders (1995).11 Cal.4th 475, 531.
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`An expert witness is not permitted to testify specifically to a witness' credibility or to testify
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`in such a manner as to improperly buttress a witness' credibility. United States v. Binder (9th Cir.
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`1985) 769 F.2d 595, 602.
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`In addition, opinions which "invade [the province of the jury" by expressing a conclusion
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`regarding the proper outcome of a lawsuit are also improper. Summers v. A. L. Gilbert (1999) 69
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`Cal. App. 4th 1155, 1182; People v. Torres (1995) 33 Cal.App.4th 37, 47. The latter principle grows
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`directly out of Evidence Code section 801: Testimony that "invades the province" of the jury is
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`excluded because it does not "assist" the jurors. It supplants them. Summers, supra, 69 Cal. App. 4th
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`at 1183.
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`PLAINTIFF’S MOTION IN LIMINE NO. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG’S UNFOUNDED
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`ACCUSATIONS OF PLAINTIFF SHOWING “DRUG SEEKING” BEHAVIOR AND ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
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`Malingering (also called “Secondary Gain”) is.Not a Proper Subject for an Opinion.
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`1.
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`Improper Subject for Testimony. “Malingering or secondary gain is an opinion which does
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`not require an expert or other individual to provide their opinion (matters of common knowledge do
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`not require expert opinion California Evidence Code 801 (a); People v. Cole (1956) 47 Cal 2nd 99
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`and Campbell v. General Motors (1982) 32 Cal 3rd 112 [percipient opinions on the subject by
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`percipient Witnesses are not necessary, since they invade the province of the jury and would not be
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`based upon personal knowledge].
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`2.
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`Speculative Evidence: The opinion of any witness (expert or lay) regarding someone else’s
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`intent or motive is speculative at best. Speculative evidence is not admissible: Wholly speculative
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`evidence is not relevant and is properly excluded." (William Dal Porto & Sons, Inc. v Agn'cultural
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`Labor Relations Bd., 191 Cal.App.3d 1195 at p. 1211. (1987), emphasis added) At footnote 8, in Dal
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`Porto, the court noted "Unreliable evidence lacks trustworthiness and is speculative, therefore it is
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`irrelevant...The court must exclude irrelevant evidence proffered evidence which has a tendency to
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`prove or disprove a disputed fact, only if the trier of fact, must draw speculative or conjectural
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`inferences from it."
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`3.
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`Witness Credibility: As stated above, witness credibility is not the proper subject for an
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`opinion by an expert or by a percipient witness.
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`“Secondary gain” or “malingering” is merely
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`another way of testifying to an opinion about the plaintist credibility.
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`4.
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`Unduly Prejudicial: Such pseudo-psychology is unduly prejudicial because it seeks to appeal
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`to those with an anti—litiganon bias and to inflame their prejudices against a lawful petition for
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`redress (California Evidence Code Section 352).
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`5.
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`Other States View Claims of “Secondary Gain” as Improperly Admitted:
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`In Missouri, a jury
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`verdict was overturned because an orthopedic surgeon had been permitted to testify that his
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`experience had been that patients who litigated for money damages have longer lasting subjective
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`complaints. That appeals court found such comments were:
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`(1) an improper comment on the
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`-1 1 _
`PLAINTIFF’S MOTION IN LIMINE NO. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG’S UNFOUNDED
`
`ACCUSATIONS OF PLAINTIFF SHOWING “DRUG SEEKING” BEHAVIOR AND ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
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`

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`credibility of the plaintiff—victim, (2) an improper breach of a person’s right to utilize the judicial
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`system, (3) as unsupported by any effort by the witness to consider or report similarities of plaintist
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`case to cases of persons with unidentified injuries and complaints, and (4) as injecting prejudice
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`disproportionate to any probative value. Yingling v. Hartwig, 925 S.W.2d 952, 954—55 (Mo. App.
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`W.D. 1996) relying on Allen V. Andrews, 599 SW2d 262 (Mo. App. SD. 1980).
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`To allow the Defendants to seek to interject subjective suppositions that from two doctors
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`about addiction and motivation to obtain drugs in this case would be unduly prejudicial - especially
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`where the opinions are of negligible value. jurors are apt to assume that because the statements are
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`coming from doctors, the comments must be true, or that the speculative opinion of someone who
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`is a medical doctor should be given greater weight than the facts in this case. Given the magnitude
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`of the prejudice likely to be injected into the case, and the nominal value of such comments as proof,
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`Plaintiff requests that the court order defense counsel, defendants, and defendants’ witnesses not to
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`say, suggest, infer, or otherwise communicate to the jury that Plaintiff’s case is about “secondary
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`gain” or “malingering” or “drug-seeking”.
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`C. ALTERNATIVELY, THE COURT SHOULD HOLD A SECTION 402 HEARING SO
`THAT THE LACK OF RELEVANCE, AUTHENTICITY, AND FOUNDATION OF
`THESE TWO DOCTORS’ CARELESS STATEMENTS ABOUT PLAINTIFF CAN BE
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`EVALUATED BEFORE TAINTING THE JURY’S PERSPECTIVE.
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`Plaintiff is not a drug-addict and drug—addiction is not probative of any factual dispute in this
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`case. Calling Plaintiff a drug-addict without basis will simply make the jury dislike him, and from no
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`fault or wrongdoing of Mr. Monteagudo. No foundation or basis exists to show that Plaintiff
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`Monteagudo had some untoward drug—seeking activity that relates to this case. Given the danger of
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`unfair prejudice to Plaintiff if this information spills into the trial, the statements accusing Plaintiff
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`of being a drug—addict should be excluded. But, in the event that the Court is uncertain, a Section
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`402 hearing is the second—best way to prevent unnecessary denigration of Plaintiff’s character.
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`Evidence Code section 402 states:
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`'
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`PLAINTIFF’S MOTION IN LIMINE NO. 19 TO EXCLUDE EVIDENCE OF DR. LAM OR DR. WONG’S UNFOUNDED
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`ACCUSATIONS OF PLAINTIFF SHOW/INC “DRUG SEEKING” BEHAVIOR AND ALTERNATIVELY, REQUEST FOR
`SECTION 402 HEARING
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`(a) When the existence of a preliminary fact is disputed,
`determined as provided in this article.
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`its existence or nonexistence shall be
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`(b) The court may hear and determine the question of the admissibility of evidence out of the
`presence or hearing of the jury; but in a criminal action, the court shall bear and determine the
`question of the admissibility of a confession or admission of the defendant out of the presence and
`hearing of the jury if any party so requests.
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`(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto;
`a separate or formal finding is unnecessary unless required by statute.
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`Drs. Lam and Fong are neither addict specialists, nor global pain managers. Plaintiff suffered
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`from pain that was evidenced by objective findings. Dr. Martinovsky, a pain management specialist
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`testified after reviewing Plaintiff’s medical history and records, and examining him, that Plaintiff did
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`not exhibit “drug-seeking” behavior, but he may have been prescribed an ineffective patchwork of
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`medications that failed to ease his pain. Therefore,
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`the statement from Drs. Lam and Fong
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`regarding Plaintiff’s alleged “drug—seeking” behavior must not be admitted until the Court ascertains
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`it is clear from the residue of careless, imprecise speculation of men testifying
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`W
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`WHEREFORE, Plaintiff respectfully requests that the Court grants this motion and preclude
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`testimony or any documentation concerning:
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`1. Dr. Lam’s statements that Plaintiff was showing signs of drug—seeking behavior; and
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`2. Dr. Wong’s statements that Plaintiff was showing signs of drug-seeking behavior; or
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`3. Alternatively, due to the highly prejudicial and unwarranted nature of the statements,
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`that the Court permit a 402 hearing to determine admissibility of these two
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`statements.
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`Dated: September
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`g
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`, 2019
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`ANNA DU
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`VSKY LAW GROUP, INC.
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`
`
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`
`
`rovsky, Esq.
`pkiy, Esq.
`Pavel I
`Attorn ys for Plaintiff
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`PLAIN'I'IITP’S MOTION IN LIMINE NO. 19 TO liXCLUDIL EVIDENCE OI" DIL LAM OR DR. W'ONG'S UNFOUNDED
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`ACCUSA'I'IONS OI“ PLAINTIFF SHOWING “DRUG SEEKING” HEl-IAVIOR AND A]Il'I-lRNA'I'IVEIX, RIL'QUI'ZS'I‘ FOR
`SECTION 402 I “CARING
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`PROOF OF SERVICE
`
`I am employed in the City and County of San Francisco, State of California. I am over 18 years
`of age and not a party to this action. My business address is Anna Dubrovsky Law Group, Inc.,
`750 Battery Street, Suite 700, San Francisco, CA 94111.
`
`On the date below I served a true copy of the following document(s):
`
`PLAINTIFF’S MOTION IN LIMINE NO. ‘19 TO EXCLUDE EVIDENCE OF DR. LAM
`OR DR. WONG’S UNFOUNDED ACCUSATIONS OF PLAINTIFF SHOWING “DRUG
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`SEEKING” BEHAVIOR AND ALTERNATIVELY, REQUEST FOR SECTION 402
`HEARING
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`on the interested parties to said action by the following means:
`
`:1 (BY MAIL) By placing a true copy of the above, enclosed in a sealed envelope with
`appropriate postage, for collection and mailing following our ordinary business
`practices. I am readily familiar with this business’s practice for collecting and
`processing correspondence for mailing. On the same day that the correspondence is
`placed for collection and mailing, it is deposited in the ordinary course of business with
`the United States Postal Service, in a sealed envelope with postage fully prepaid.
`
`EDDDD
`
`(BY OVERNIGHT DELIVERY) By placing a true copy of the above, enclosed in a
`sealed envelope with delivery charges to be billed to Anna Dubrovsky Law Group, Inc.
`for delivery by Federal Express to the address(es) shown below.
`
`(BY FACSIMILE TRANSMISSION) By transmitting a true copy of the above by
`facsimile transmission from facsimile number (415) 746-1478 to the attorney(s) or
`party(ies) shown below.
`
`(BY MESSENGER) By placing a true copy of the above in a sealed envelope and by
`giving said envelope to an employee of \‘Vestern Messenger Service for guaranteed,
`same—day delivery to the address(es) shown below.
`
`(BY HAND DELIVERY) By personal delivery of a true copy of the above to the
`attorneys or parties shown below —- Lubin Olson
`
`(BY E-MAIL or ELECTRONIC TRANSMISSION) Bas