                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


              MARK WILLIAM FRANKLIN, Plaintiff/Appellant,

                                         v.

            JASON JOHN CLEMETT, et al., Defendants/Appellees.

                              No. 1 CA-CV 15-0194
                               FILED 10-25-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV2010-033437
                 The Honorable Dawn M. Bergin, Judge

                                   AFFIRMED


                                     COUNSEL

Knapp & Roberts, P.C., Scottsdale
By David L. Abney
Co-Counsel for Plaintiff/Appellant

Harris, Powers & Cunningham, P.L.L.C., Phoenix
By Joseph D’Aguanno, Frank I. Powers
Co-Counsel for Plaintiff/Appellant

Karen L. Lugosi, P.C., Phoenix
By Karen L. Lugosi
Co-Counsel for Plaintiff/Appellant
Jones, Skelton & Hochuli, P.L.C., Phoenix
By William D. Holm, Jonathan P. Barnes, Jr.
Co-Counsel for Defendants/Appellees

Hill, Hall & DeCiancio, P.L.C., Phoenix
By R. Corey Hill, Ginette M. Hill, Christopher Robbins
Co-Counsel for Defendants/Appellees



                      MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Margaret A. Downie joined.


N O R R I S, Judge:

¶1            This appeal arises out of a lawsuit filed by Plaintiff/Appellant
Mark William Franklin against Defendants/Appellees Jason John Clemett
and his wife, and their friend Daniel Blanchard (collectively, unless
otherwise specified, “Defendants”) to recover damages for injuries he
allegedly sustained during a physical altercation he had with Jason Clemett
and Daniel Blanchard at a hockey game. A jury trial on Franklin’s
negligence claim resulted in a verdict for Defendants.

¶2            On appeal, Franklin argues the superior court abused its
discretion in admitting expert testimony from a defense witness as well as
deposition testimony from one of his physicians.1 Because Franklin has
shown no abuse of discretion, we affirm the judgment in favor of the
Defendants.




              1In
                a separate opinion, Franklin v. Clemett et al., 1 CA-CV 15-
0194 (Ariz. App. October 25, 2016), filed simultaneously with this
memorandum decision, see Ariz. R. Sup. Ct. 111 and Arizona Rule of Civil
Appellate Procedure (“ARCAP”) 28, we reject Franklin’s remaining
arguments and discuss the factual and procedural background of this case
in more detail.
                                      2
                                DISCUSSION

I.     Franklin’s Injuries and Malingering

¶3             At trial, the parties hotly disputed the existence and extent of
Franklin’s injuries. Franklin presented evidence he had suffered a traumatic
brain injury (“TBI”) and other injuries. Two neuropsychologists presented
conflicting testimony regarding the existence, extent, and severity of
Franklin’s alleged TBI. Over Franklin’s objection, a defense expert,
neuropsychologist Susan Borgaro, Ph.D., testified Franklin was
“malingering,” while Franklin’s expert, neuropsychologist Jason Baker,
Ph.D., testified he was not.

¶4             On appeal, Franklin argues Dr. Borgaro’s testimony that he
was malingering was inadmissible as a matter of law because it constituted
an “expert-witness attack” on his credibility. Assuming Franklin’s
argument raises a question of law, he has not shown reversible error. See
State v. Wright, 214 Ariz. 540, 542, ¶ 5, 155 P.3d 1064, 1066 (App. 2007) (citing
State v. Moran, 151 Ariz. 378, 381, 728 P.2d 248, 251 (1986) (when
admissibility of expert opinion testimony raises a question of law, appellate
court applies de novo review)).

¶5              A witness’s credibility is a question of fact for the finder of
fact. State v. Bernstein, 237 Ariz. 226, 230, ¶ 18, 349 P.3d 200, 204 (App. 2015).
Accordingly, an expert witness may not comment or express an opinion on
“who is correct or incorrect, who is lying and who is truthful.” Moran, 151
Ariz. at 382, 728 P.2d at 252 (citation omitted); see also State v. Lindsey, 149
Ariz. 472, 475, 720 P.2d 73, 76 (1986) (“even where expert testimony on
behavioral characteristics that affect credibility or accuracy of observation
is allowed, experts should not be allowed to give their opinion of the
accuracy, reliability or credibility of a particular witness in the case being
tried”). An expert witness may, however, offer testimony that helps a jury
understand the evidence or determine a fact in issue. See Ariz. R. Evid. 702
(expert witness may testify on specialized knowledge that will help a jury
to understand these factors). Here, Dr. Borgaro’s testimony was relevant to
the parties’ dispute regarding the existence, extent, and severity of
Franklin’s alleged TBI.

¶6          First, Dr. Borgaro’s testimony that Franklin was
“malingering” was closely tied to her explanation of the tests she had
                      FRANKLIN v. CLEMETT et al.
                         Decision of the Court

administered to Franklin, and why she had administered them.2 Dr.
Borgaro testified Franklin told her his TBI, incurred in 2009, was continuing
to cause him cognitive problems, such as memory loss and trouble finding
words, as well as emotional problems, such as depression, frustration, and
anxiety. She explained she reviewed Franklin’s medical records and
administered several tests, including symptoms validity tests. Dr. Borgaro
further explained that tests for malingering are typically administered
when a person reports that he or she is experiencing neurological
symptoms, such as the symptoms reported by Franklin, and when litigation
is involved.

¶7            Second, Dr. Borgaro’s testimony that Franklin was
malingering was closely tied to her explanation of the test results. As
discussed, see supra ¶ 6 footnote 2, Dr. Borgaro and Dr. Baker defined
malingering in substantially similar terms. At trial, Dr. Borgaro explained
that the tests were designed to show whether a person’s reported
symptoms are neurological in cause and, even if the results indicate the
symptoms are not neurologically based, that “doesn’t necessarily mean that
somebody’s making up symptoms.” Thus, she explained how Franklin’s
test results showed discrepancies that were atypical and did not “make
sense from a neurological standpoint.”

¶8           Third, Dr. Borgaro’s testimony that Franklin was malingering
helped the jury understand the differences between her opinions and Dr.
Baker’s opinions, such as her conclusion that the “fake bad scale,” one of
the symptoms validity tests, demonstrated a 95% statistical probability that
Franklin was malingering.

¶9            Fourth, Dr. Borgaro did not comment on Franklin’s trial
testimony or his credibility; she did not tell the jury that Franklin was
untruthful or “fabricating facts” and her testimony did not constitute what
our courts have considered to be improper credibility testimony. See State
v. Reimer, 189 Ariz. 239, 241, 941 P.2d 912, 914 (App. 1997) (abuse of

             2Both  Dr. Baker and Dr. Borgaro generally explained that
malingering was determined through test results that demonstrated
inconsistencies between what a person reports as his or her symptoms and
how a person is actually functioning on a daily basis; and both experts
generally agreed that malingering was the exaggeration of symptoms for
secondary gain such as for a financial incentive. Both experts agreed,
however, there was no single test for malingering and both testified
extensively on their test results and different methodologies for
administering and interpreting the tests.
                                     4
                       FRANKLIN v. CLEMETT et al.
                          Decision of the Court

discretion to allow officer to testify that based on his experience in detecting
whether a person is truthful he believed a victim’s out-of-court statement
regarding defendant’s conduct was truthful); State v. Tucker, 165 Ariz. 340,
346, 798 P.2d 1349, 1355 (App. 1990) (psychiatrist who answered
“hypothetical” questions based on testimony already presented to the jury
provided improper opinion testimony by explaining that the victim’s
testimony was consistent with the crime).

¶10             Instead, Dr. Borgaro’s testimony that, from a neurological
standpoint “[t]here’s no question [Franklin] meets [the] criteria for probable
malingering,” was focused on Franklin’s alleged TBI and his allegedly
continuing symptoms, not his credibility. Albeit presented in other
contexts, that type of evidence may be admissible. See State v. Moody, 208
Ariz. 424, 444-45, ¶¶ 54-58, 94 P.3d 1119, 1139-40 (2004) (superior court did
not abuse its discretion in finding defendant competent to stand trial when
several experts opined defendant was likely malingering or faking mental
illness); State v. Lewis, 236 Ariz. 336, 342-43, ¶¶ 17-22, 340 P.3d 415, 421-22
(App. 2014) (presumption of continued incompetency rebutted by evidence
defendant was malingering, including “trying to appear mentally ill by
exaggerating or feigning symptoms” and evidence of defendant’s alleged
symptoms did not match his behavior).

¶11          Given this record, the superior court did not commit reversal
error in admitting Dr. Borgaro’s expert testimony.

II.    Admission of Deposition Testimony

¶12           Franklin argues the superior court should not have allowed
the Defendants to introduce into evidence the deposition testimony from
one of his physicians, in which the physician mentioned Franklin had
engaged in anal sex. According to Franklin, the testimony was prejudicial
and irrelevant because he had withdrawn his damage claim for sexual
dysfunction. Franklin has not shown any abuse of discretion. See State v.
Fillmore, 187 Ariz. 174, 179, 927 P.2d 1303, 1308 (App. 1996) (citation
omitted) (ruling on admission of evidence reviewed for abuse of
discretion).

¶13           The superior court admitted this testimony, reasoning that
the physician’s testimony was admissible, even though Franklin may have
withdrawn his claim of sexual dysfunction, because it was relevant to
Franklin’s broader claim of “lost enjoyment of life as a result of [his]
injuries.” Further, Franklin has not shown the superior court abused its
discretion in concluding the testimony did not pose a danger of being

                                       5
                      FRANKLIN v. CLEMETT et al.
                         Decision of the Court

unduly prejudicial, as the court ordered the parties to use the phrase
“sexual relations” instead of the phrase “anal intercourse” during the trial.

¶14          On this record, Franklin has shown no abuse of discretion in
the admission of this testimony.

                              CONCLUSION

¶15          For the foregoing reasons, we affirm the superior court’s
judgment in favor of the Defendants. As the successful parties on appeal,
we award the Defendants their costs on appeal contingent upon their
compliance with ARCAP 21.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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