Franklin v. Clemett, 1 CA-CV 15-0194

Franklin sued Clemett and others for injuries from a physical altercation at a hockey game; a jury returned a defense verdict.
Central dispute at trial: whether Franklin suffered a traumatic brain injury (TBI) and the extent of his cognitive and emotional symptoms.
Competing neuropsychologists testified: Franklin’s expert (Dr. Baker) opined no malingering; defense expert (Dr. Borgaro) testified Franklin was malingering based on symptom-validity testing.
Franklin objected that Dr. Borgaro’s malingering opinion improperly attacked his credibility.
Defendants introduced deposition testimony from one of Franklin’s physicians mentioning prior sexual conduct; Franklin had withdrawn a claim for sexual dysfunction but argued the testimony was irrelevant and prejudicial.
The superior court admitted both the defense expert’s testimony and the physician’s deposition testimony; Franklin appealed alleging abuse of discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of expert testimony labeling plaintiff as "malingering"	Borgaro’s statement was an improper expert attack on plaintiff’s credibility and thus inadmissible	Opinion assisted the jury in assessing medical evidence and test results; did not comment on trial testimony or veracity	Court affirmed: opinion admissible because it explained tests, results, and diagnosis relevant to TBI, not a direct credibility determination
Admissibility of physician deposition mentioning anal sex	Testimony was prejudicial and irrelevant after withdrawal of sexual dysfunction claim	Testimony was relevant to loss of enjoyment of life and permissible with limiting language	Court affirmed: testimony relevant to broader damages; trial court mitigated prejudice by requiring euphemistic phrasing

State v. Wright, 214 Ariz. 540 (discussing standard of review for legal admissibility questions)
State v. Moran, 151 Ariz. 378 (expert witnesses may not directly opine on witness truthfulness)
State v. Bernstein, 237 Ariz. 226 (credibility is for the factfinder)
State v. Lindsey, 149 Ariz. 472 (limits on expert testimony about witness credibility)
State v. Reimer, 189 Ariz. 239 (improper for an expert to testify directly that a witness was truthful)
State v. Tucker, 165 Ariz. 340 (expert testimony that effectively vouched for witness credibility is improper)
State v. Moody, 208 Ariz. 424 (experts may testify a defendant is malingering in competency contexts)
State v. Lewis, 236 Ariz. 336 (malingering evidence can rebut competency or similar claims)
State v. Fillmore, 187 Ariz. 174 (admission of evidence reviewed for abuse of discretion)