A district judge in Virginia refused to admit the testimony of a psychology expert even though he provided the Court with multiple experimental means to test the validity of the communications in question.
Plaintiff, Kevin Plantan filed a lawsuit arising from his belief that he was wrongfully accused of sexually molesting his minor daughter S.P., an autistic child, and that the allegations made by the child were not really S.P’s words, but rather, that they came about via a method of communication that is not reliable.
Plaintiff claimed Wendy Atkinson, an occupational therapist, was hired by defendant Kelly Smith, his ex-wife and mother of S.P., to “begin using a form of facilitated communication with S.P.” He asserts that during the course of S.P.’s interactions with, inter alia, Defendant Wendy Atkinson, S.P. disclosed that the Plaintiff had sexually abused her when she was six and nine years old.
Plaintiff designated Dr. James Todd (“Dr. Todd”) who opined that Ms. Atkinson “has recklessly disregarded the clear and overwhelming conclusions of the scientific community that facilitated communication is ineffective and dangerous.”
The Defendants filed a motion to exclude Todd’s opinions, arguing that “they are inadmissible for numerous reasons,” including that “the opinions offered are not only an improper attack on the credibility of Atkinson” but also “venture into territory that is off limits to experts.”
Psychology Expert Witness
James Todd is a “professor of Psychology at Eastern Michigan University” and teaches courses on “experimental methodology and basic behavioral principles, including stimulus control and prompting.” Todd earned a Ph.D. in Developmental and Child Psychology and a Master’s Degree in Human Development. His training and experience include “severe, multiple handicaps, including autism.” He has “formally studied facilitated communication and variants of it since about 1991,” including “attending several trainings and didactic workshops and information sessions about facilitated communication given by top authorities in the field.” Todd has “authored or co-authored several articles and chapters” on facilitated communication.
Discussion by the Court
Defendants first argued that Todd is not qualified because “he does not practice in the same or similar” field of occupational therapy, namely habilitation and rehabilitation, as does Atkinson.
Plantan countered that Todd need not be an expert in occupational therapy “to testify that the technique that the Defendants employed . . . is ‘facilitated communication’ and that such method is an illegitimate means by which communication may be assessed for its substantive value.”
Even though Todd presented ample qualification to testify, as a general matter, about what facilitated communication is and how to design an experiment to screen for extraneous variables to determine the validity of the results, Defendants contended that his testimony did not satisfy other aspects of Rule 702, including that which prevents an expert from rendering a legal opinion.
Todd’s Specialized Knowledge Could Assist the Trier of Fact But is Not Presented in a Manner the Jury Can Hear
Despite Todd’s extensive experience in facilitated communication and in measuring the efficacy of various behavioral interventions—especially focused on individuals with autism spectrum disorder, the Court held that Todd’s report consisted of statements that constituted legal conclusions and, rather than helping the trier of fact understand the evidence, risked supplanting the province of the jury.
Todd stated that “Atkinson has recklessly disregarded the clear and overwhelming conclusions of the scientific community.” The Court held that it is unclear whether Todd intended to introduce recklessness as “a legal standard or . . . a legal conclusion” but in either case, this testimony is inadmissible.
Todd’s Opinion Is Not Based on Sufficient Facts or Data
First, Todd did not review the Cornerstone Therapy records regarding Ms. Atkinson’s occupational therapy services with S.P.
Second, Defendants stated that Todd was unaware that S.P. had testified twice in Plantan’s criminal proceedings and did so on at least one occasion with typing assistance provided by an individual wearing headphones who could not hear the questions being asked. Certainly Todd should have considered such events as grounding before he concluded that any typing did not represent S.P.’s own words.
Third, Plaintiff’s counsel acknowledged at oral argument that Todd did not review the depositions of any of the multiple other individuals who assisted S.P. with typing.
Because he read only one day of Atkinson’s two days of deposition testimony and an unspecified “letter,” Todd made assumptions “about the position of S.P.’s fingers on the keyboard, about who put pressure on the keys, about hand positions generally, and about who typed the words at issue,” without sufficient evidentiary grounding.
The Court held that in the absence of actual observation of the typing that he characterizes as facilitated communication, Todd forms his assumptions from his conclusion that facilitated communication is occurring. In other words, Todd’s speculation—derived from his conclusory, albeit expert, observations about the apparent fallacy underlying facilitated communication—are inadmissible with respect to S.P.’s treatment here.
Todd’s Opinion Is Not the Product of Reliable Principles and Methods
Todd rightly observed that the lack of any testing to verify the true author of the communications raises concern. Todd’s report suggested that if he had tested the validity of S.P.’s communications, that test would reveal that S.P. was not the true author. Although Todd articulated principles and methods—such as single-blind and double-blind tests—that may constitute reliable methods by which to discern whether Atkinson engaged in facilitated communication, he failed to actually conduct such tests, “leaving those matters open to speculation.”
Todd’s Opinions Do Not Reflect a Reliable Application of the Principles and Methods to the Facts of This Case
Defendants argued that Todd’s “opinions lack ‘the same level of intellectual rigor that characterizes the practice of an expert in the relevant field’, and that “he fails to explain what facts he considered in forming his opinions.”
Plantan responded by asserting that Todd reliably applied his principles of review as they relate to identifying specific measures used by Atkinson with S.P. and scrutinized those measures according to academic studies.
The Court found that Todd’s opinion did not reflect a reliable application of those principles and methods to the facts of this case.
Analysis Under Federal Rule of Civil Procedure 26 Would Be Duplicative
Defendants asserted that “Todd’s report is deficient under Rule 26” because “Todd provides only a general description of facilitated communication” and “fails to provide any specific information from which the Court could determine what facts or data he considered in arriving at his opinion.”
The Court “has determined that Rule 702, rather than Rule 37(c), is the proper vehicle to address the deficiencies of Todd.”
Having already found in favor of the Defendants under Rule 702 and Daubert, the Court declined to undertake a Rule 26 analysis.
Held
The Court granted the Defendant’s motion to exclude the opinions of James Todd.
Key Takeaway:
Even though Plantan conceded that the reliability of Todd’s testimony could have been reinforced by procedures not undertaken in this case, such as video observation of S.P.’s typing, in-person observation of S.P.’s typing, or experimental tests of the reliability of S.P.’s typing, the Court found that Todd’s testimony was not the product of reliable principles and methods, but rather of ipse dixit based on his experience and insufficient case-specific facts and data. Todd identified multiple experimental means to test the validity of the communications, but he deployed none of them to verify the authorship of S.P.’s typed communications.
Case Details:
| Case Caption: | Plantan V. Smith Et Al |
| Docket Number: | 3:22cv407 |
| Court: | United States District Court, Virginia Eastern |
| Order Date: | June 18, 2024 |
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