                             NOT FOR PUBLICATION                         FILED
                     UNITED STATES COURT OF APPEALS                       JUL 12 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 RONALD WEEKLEY, Jr.,                            No.      14-56210

              Plaintiff-Appellant,               D.C. No. 2:13-cv-04760-RZ

    v.
                                                 MEMORANDUM*
 CITY OF LOS ANGELES,

              Defendant,

  and

 MIGUEL REYNOSO, Officer; ARTURO
 GONZALEZ, Officer; FRANCISCO
 ULLOA; AQUILES MORALES, Sergeant,

              Defendants-Appellees.

                     Appeal from the United States District Court
                         for the Central District of California
                     Ralph Zarefsky, Magistrate Judge, Presiding

                               Submitted July 6, 2016**
                                 Pasadena, California

Before: FERNANDEZ, CLIFTON, and FRIEDLAND, Circuit Judges.

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        Plaintiff-Appellant Ronald Weekley, Jr. appeals following a nine-day jury

trial, which resulted in a verdict in favor of Defendants the City of Los Angeles

and Los Angeles Police Department (“LAPD”) Officers Reynoso, Gonzalez, Ulloa,

and Morales.1 Weekley claims that the trial court erred in allowing some of the

testimony of a defense expert, psychiatrist Dr. Rosenberg, and that the jury

instructions misstated the law and misled the jury. We affirm.

        The events giving rise to this lawsuit began in August 2012 as Weekley was

riding home on his skateboard. At trial, Weekley testified that he got off his

skateboard at an intersection and was walking on the sidewalk with his skateboard

in hand when a patrol vehicle passed him. In contrast, LAPD Officers Reynoso

and Gonzalez, the two officers initially at the scene, testified that they saw

Weekley skateboarding in the street (rather than carrying it on the sidewalk) and

that they had to brake their police vehicle suddenly to avoid being hit by Weekley.

Officer Gonzalez testified that he exited his patrol to try to talk to Weekley.

When Weekley failed to stop, Gonzalez reached out to Weekley and Weekley

pulled away. Weekley continued to resist, and a fight ensued, which ultimately

resulted in Weekley suffering a fractured cheekbone. Weekley subsequently filed

suit against Defendants, alleging excessive force in violation of his constitutional

rights and seeking damages for the injuries he suffered as a result of the altercation.


1
    The parties consented to proceeding before a magistrate judge in this matter.

                                           2
      To discuss the extent of the physical and emotional injuries alleged by

Weekley, both sides offered expert testimony. Before trial, Weekley had objected

in a motion in limine to admitting testimony by Dr. Rosenberg that Weekley had

exaggerated certain symptoms during Dr. Rosenberg’s examination of him. The

court denied the motion. Weekley argues on appeal that the court abused its

discretion by denying the motion and allowing Dr. Rosenberg to testify on what

Weekley characterizes as the subject of Weekley’s credibility. We disagree.

      As an initial matter, even if Dr. Rosenberg’s testimony would have been

inadmissible, it appears that Weekley opened the door to Dr. Rosenberg’s

testimony by initially eliciting testimony from his own expert, neurologist Dr. Fisk,

relating to his sincerity in answering questions during Dr. Fisk’s examination.

“Under the rule of curative admissibility, or the ‘opening the door’ doctrine, the

introduction of inadmissible evidence by one party allows an opponent, in the

court’s discretion, to introduce evidence on the same issue to rebut any false

impression that might have resulted from the earlier admission.” United States v.

Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988). The testimony offered by Dr.

Rosenberg was also on the subject of the reliability to Weekley’s responses during

his medical exam. Dr. Rosenberg testified, “Given the lack of alternative

reasonable explanations” for the elevation of the “fake symptom scale of the

MMPI-II” test he had administered, “and given how high the elevation was, the


                                          3
only reasonable explanation from a psychiatric standpoint was the intentional

exaggeration of his symptoms, primarily exaggeration of symptoms related to his

ongoing physical claims.”2 Dr. Rosenberg’s testimony directly responded to the

testimony Weekley had earlier offered from Dr. Fisk, because both addressed

whether Weekley was faking any responses during medical examinations

undertaken to determine the extent of his mental and physical injuries. Dr.

Rosenberg’s testimony was therefore admissible at the discretion of the trial court.

      Moreover, even if Dr. Fisk had not testified, the trial court would have been

within its discretion in admitting Dr. Rosenberg’s testimony. Dr. Rosenberg did

not opine as to Weekley’s general credibility as a witness on all matters. Rather,


2
  To the extent that Weekley objects to Dr. Rosenberg’s testimony on the basis that
Dr. Rosenberg went beyond responding to Fisk by suggesting a motive for
exaggerating symptoms—in particular, that Weekley was exaggerating his
symptoms for financial gain—his objection fails because Weekley specifically
elicited that aspect of Dr. Rosenberg’s testimony. Statements about Weekley
seeking financial gain were the result of questions on cross-examination by
Weekley’s attorneys like, “He’s intentionally distorting so that he can get more
money from this jury; correct, you think?” Thus, Weekley appears to have invited
any error on himself. United States v. Cazares, 788 F.3d 956, 983 (9th Cir. 2015)
(denying defendants’ Confrontation Clause violation argument based, in part, on
the fact that “defense counsel clearly invited this testimony” on cross-
examination); United States v. Hernandez, 27 F.3d 1403, 1407 (9th Cir.), as
amended (Sept. 21, 1994) (“An error under the invited error doctrine is ‘an error
that is caused by the actions of the complaining party.’” (quoting United States v.
Schaff, 948 F.2d 501, 506 (9th Cir. 1991))).




                                         4
Dr. Rosenberg explained, based on his qualifications as an expert,3 that Weekley’s

responses to the testing he conducted suggested that Weekley was exaggerating his

symptoms. Such testimony is properly admitted at the discretion of the trial court.

See United States v. Sine, 493 F.3d 1021, 1033-34 (9th Cir. 2007) (holding that the

government’s use during cross-examination of factual findings from a prior

judicial order was improper because “jurors are likely to defer to findings and

determinations relevant to credibility made by an authoritative, professional

factfinder rather than determine those issues for themselves,” but explaining that

“[o]ur determination . . . does not mean that admission of such facts will always

fail the balancing test of Rule 403.”); United States v. Rohrer, 708 F.2d 429, 434

(9th Cir. 1983) (“Although the credibility of a witness, unlike his competency, is a

question for the jury, admission of expert psychiatric testimony bearing on

credibility lies in the judge’s discretion.”).

      Separately, Weekley asserts that the trial court erred in giving Jury

Instruction No. 18 without the clarifying language or instruction suggested by

Weekley. Even if there was error in the instructions, however, any error was


3
  Weekley also argues that Dr. Rosenberg never presented a sufficient basis under
Daubert for his testimony as to credibility. Contrary to Weekley’s assertions, the
record is replete with evidence that Dr. Rosenberg provided a sufficient medical
basis for his testimony as to Weekley’s exaggeration of symptoms during his
examination.



                                            5
harmless and therefore does not warrant reversal. Gantt v. City of Los Angeles,

717 F.3d 702, 707 (9th Cir. 2013). The special verdict form in this case first

required the jury to answer whether “Defendants violated [Weekley’s] Fourth

Amendment Constitutional Rights by unlawfully detaining him?” The jury

answered “No” as to all Defendants. This question matches Jury Instruction No.

17, which told jurors that “In general, a seizure of a person for a stop is reasonable

if, under all of the circumstances known to the officers at the time . . . the officers

had a reasonable suspicion that the person seized was engaged in a traffic

infraction,” and explained “[u]nder California law, ‘Every pedestrian upon a

roadway shall yield the right-of-way to all vehicles upon the roadway so near as to

constitute an immediate hazard.’ A person on a skateboard is considered a

pedestrian. A violation of this law constitutes an infraction.” Once the jury

concluded that Weekley was not unlawfully detained for the traffic infraction, as

Jury Instruction No. 17 instructed, it is irrelevant whether the jury could have read

Instruction No. 18 to allow Weekley’s arrest in the absence of an initial lawful

reason to detain.

      For the foregoing reasons we AFFIRM.




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