Plaintiff Ethan Levi (“Plaintiff”) filed this action on behalf of J.C., a minor child, against the Oregon Department of Human Services (“DHS”) and several of its employees (collectively, “Defendants”). Plaintiff’s complaint alleges civil rights violations arising out of the sexual abuse of J.C. while in the custody of DHS-certified foster care provider Joe Albert Raygosa. Chapman certified Nicole Marie Duncan and Joe Albert Raygosa (“Duncan-Raygosa”) to operate a foster home and placed J.C. and her younger brother, Z.C., into that home.
On information and belief, in 2012 Duncan-Raygosa were involved in and/or
questioned in connection with the death of a three-year-old female child in or around Fresno, California, where they had resided prior to relocating to Oregon. The child’s death was considered suspicious by emergency medical professionals who made abuse reports on her behalf. Raygosa was later ordered by a California Court to have no contact with the child’s older
brother.
Plaintiff filed a motion challenging the opinion of Ms. Kellie Figoten regarding Fresno County’s investigation (or lack thereof) of abuse and neglect allegations following the death of the child in Raygosa and Duncan’s care in California.
Social Work Expert Witness
Kellie Figoten, MSW, brings over two decades of experience in direct service and program management within the public child welfare system, where she has led transformative projects to enhance efficiency and promote equity. Kellie has also spent two decades developing curriculum and teaching bachelor and master-level students in social work at a local state university.
Discussion by the Court
The Court held that Defendants’ failure to disclose Figoten’s so-called supplemental opinions in the written report is neither substantially justified nor harmless. Defendants have had years to allege that Fresno County or its officials are at fault, caused, or contributed to Defendants’ alleged deliberate indifference in certifying the Duncan-Raygosa home. Defendants made no effort to amend their “Fault of Others” affirmative defense and they failed to identify Freson County or its officials in response to Plaintiff Levi’s interrogatories seek additional information about this defense. Nor did they supplement their response during discovery.
Prior to the disclosure of Figoten’s expert report on October 29, 2024, the Plaintiffs were unaware that Defendants planned to argue that anyone other than Raygosa was responsible for Defendants’ allegedly deliberate failure to obtain collateral information as required when certifying a foster home. Defendants’ argument that they are not attributing fault to Fresno County while preparing to present Figoten’s opinion that but-for Fresno County’s failings, DHS would have discovered the allegations of abuse in Fresno County prior to certifying the Duncan-Raygosa home, is a false distinction and not well taken. The Court held that evidence of Figoten’s opinions and conclusions regarding Fresno County’s apparent negligence, fault, and mistakes following the death of the child in Duncan and Raygosa’s foster care in California are inadmissible.
Held
The Court granted in part Plaintiff Levi’s motion to exclude or strike Kellie Figoten’s expert rebuttal testimony.
Key Takeaways:
A testifying expert’s “report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them.” Rule 26(a)(2)(D) provides that a party “must make these disclosures at the times and in the sequence that the court orders.” Under Rule 37(c)(1), “[i]If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” The party facing exclusion bears the burden of showing substantial justification or harmlessness, otherwise, exclusion is automatic.
Defendants’ failure to disclose Figoten’s so-called supplemental opinions in the written report is neither substantially justified nor harmless. Defendants have had years to allege that Fresno County or its officials are at fault, caused, or contributed to Defendants’ alleged deliberate indifference in certifying the Duncan-Raygosa home.
Case Details:
| Case Caption: | Levi v. Chapman |
| Docket Number: | 6:23cv1353 ; 6:22cv1813 |
| Court: | United States District Court for the District of Oregon |
| Order Date: | December 20, 2024 |
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