In May 2023, Joy and Brian Parnes filed this lawsuit against the Orange County School Board for disability discrimination and retaliation related to the education of their minor daughter, S.P. Pursuant to Rule 702, the Parneses seek to introduce the opinion testimony of Timothy Conway, Ph.D. in support of their theory that S.P. requires accommodations and the cost of those accommodations including private schooling.
Neuropsychology Expert Witness
Timothy Conway completed supervised pre-doctoral and post-doctoral training in the diagnosis and treatment of neurodevelopmental disorders in children and adults at The Morris Center [(TMC)]. Conway received his bachelor’s degree in psychology, and he holds a Ph.D. in clinical psychology with a concentration in neuropsychology. After completing his Ph.D., he completed a post-doctoral fellowship at the VAMC-Brain Rehabilitation Research Center of Excellence.
Since 2008, Conway has owned or managed TMC clinics in Ocala, Florida; Ponte Vedra Beach, Florida; Birmingham, Alabama; Port of Spain, Trinidad and Tobago, West Indies; and NOW!, an EdTech company. Also, since 2008, he has been training and directing teams of healthcare professionals (occupational therapy, speech-language therapy, clinical psychology/neuropsychology) and educators in the transdisciplinary assessment and treatment of neurodevelopmental disorders. And he has co-authored numerous publications and provided training courses and workshops to professionals.
Discussion by the Court
Conway wrote in his expert report that S.P. “needs high intensity, high frequency, evidence-based intervention for her specific learning disorders, AD/HD and her developmental coordination disorder.”
Conway is Qualified to Provide Opinion Testimony
The Board claimed that because Conway is not licensed in Florida or another state, he is unqualified to serve as an expert in psychology, school psychology, occupational therapy, speech-language pathology, or K-12 educational needs. Here, the Board pointed to the lack of information in Conway’s expert report or curriculum vitae that he is a licensed psychologist, school psychologist, licensed occupational therapist, or licensed speech-language pathologist in Florida (or any other state). Also, the Board asserted that he is unqualified because he has never taught in a K-12 classroom in Florida and he is not a licensed educator in Florida.
Finally, the Board argued that Conway is unqualified because he “never personally treated, evaluated, or assessed S.P. in a clinical or school setting.”
To the extent that the Board argued that Conway is unqualified because he is unlicensed in Florida, it has not stated how this renders Conway unqualified in this case. Moreover, the Board failed to explain its arguments that he is not licensed as a speech-language pathologist in any jurisdiction or as an educator in Florida. The Court held that argument goes to the weight that a trier of fact might give the testimony, but it does not preclude admissibility.
The Parneses submitted that Conway has evaluated S.P., reviewed her medical and school records (including those that the Board produced), and has spoken with S.P. and her parents on “numerous occasions regarding her education.” The Court held that his expert report was based on evaluation, information, and the status of [S.P.] at that time.
Conway is Not Offering a Causation Opinion
Since Conway’s report is limited to S.P.’s present treatment, education, and schooling needs, the Board argued that Conway’s “causation” opinions warranted exclusion. The Board submits that the “causation” opinions that Conway will offer are: (1) the alleged acts or omissions on the part of the Board, (2) the adequacy and appropriateness of any services and supports the Board provided S.P., and (3) whether the Board damaged or harmed S.P.
The Parneses explained that Conway’s report does not opine as to “causation” because he is not going to offer a “causation” opinion. Thus, the Court excluded Conway’s opinions as to causation.
Reliability of Conway’s Methodology
The Board argued that Conway’s proposed opinions are not based on a reliable methodology and are simply ipse dixit that will not assist the jury.
Conway’s opinions will help the jury to understand the parties’ positions
First, the Court held that Conway’s opinions will help the jury to understand the parties’ positions and the remedies that the parties believe are appropriate or inappropriate. Conway’s opinions are not so speculative (or outside the bounds of what he does) that his opinions will fail to assist the jury. And while the Board argues that Conway’s lack of licensure means he will not assist the jury, as previously discussed “lack of board-certification [or a license] goes to weight, not admissibility.”
Second, the records that Conway reviewed were produced to the Board and consisted of S.P.’s school records, medical records, and evaluations. Moreover, Conway interviewed S.P., her parents, and family members. Conway reviewed all of S.P.’s school records covering the past six to seven years and reviewed all evaluations of disabilities. The Court held that Conway’s opinions are based on sufficient facts and data.
Third and fourth, the Court held that Conway’s proposed opinions as to the accommodations that S.P. requires to catch up with her peer group and to participate in public or private school are reliable. The Parneses stated that Conway used peer reviewed and accepted principles to evaluate S.P.’s school records and medical records. His opinion connects his experience and secondary sources to S.P.’s school and medical records such that it is the product of reliable principles and is based on reliable methodology.
Conway’s opinions about the costs of private schooling and healthcare are unreliable
When Conway submitted his estimates for healthcare costs, the Court found that he failed to provide any basis for them. Conway’s report does not set forth the cost of individual services. Likewise, there is no cost estimate for the online program (NOW!) that S.P. is enrolled in; it is not clear whether that program is included in the monthly figure or if it is a separate cost.
Moreover, Conway did not submit that he has testified as an expert witness regarding medical coding or the reasonableness of medical billing. And he does not submit that his opinion on S.P.’s medical billing was the result of considering authoritative sources on the subject. Nor does he explain how he determined “typical” rates in the area, and there is no support for this determination other than Conway’s own report.
Likewise, Conway’s opinion on the cost of private schooling is unreliable. As with Conway’s opinion on healthcare costs, he fails to provide “any explanation of the basis, facts, or data considered in reaching” his opinion as to S.P.’s continuing treatment and educational costs. And he does not cite to any other resource to support his opinions. As a result, his methodology is insufficiently reliable for him to offer an opinion on the continuing treatment and educational costs in this case.
Held
The Court limited the testimony of expert Timothy Conway after excluding his opinions as to causation, healthcare costs, and schooling costs.
Key Takeaway:
Conway opined based on his experience “helping students with severe and many deficits,” his review of S.P.’s medical and school records, his evaluation of S.P., and speaking to the Parneses and family members. His company may charge certain rates, but there is insufficient information in his expert report to support his testimony as an expert regarding the costs of healthcare, educational services, or private school tuition in the community at large. Conway does not provide support for his calculation of the costs of S.P.’s potential treatment.
Case Details:
| Case Caption: | Parnes Et Al V. Orange County School Board |
| Docket Number: | 6:23cv854 |
| Court: | United States District Court, Florida Middle |
| Order Date: | September 24, 2024 |
Leave a Reply