Plaintiff Mark Craighead (“Plaintiff” or “Craighead”) brought this wrongful conviction action against Defendants for, among other things, malicious prosecution and coerced confession related to his conviction for the 1997 Murder of Chole Pruett.
Plaintiff sought damages for mental and emotional injuries allegedly caused by his arrest, interrogation, conviction, and incarceration.
The Plaintiff disclosed Errol Liverpool, his treating counselor, who treated him for nearly nineteen months and diagnosed him with Post-Traumatic Stress Disorder (PTSD) and adjustment disorder. Defendants retained Dr. Sami Farhat to compile a forensic rebuttal report in which he concluded that he could not substantiate a clear loss of functional impairment or significant psychological injury resulting from Craighead’s wrongful incarceration.
Dr. Steven Farmilant, Plaintiff’s rebuttal expert, administered a series of diagnostic tests, diagnosed Plaintiff with Complex Post-Traumatic Stress Disorder (CPTSD) and major depressive disorder, and subsequently compiled a surrebuttal expert report in which he concluded that Plaintiff’s diagnoses were attributable to his wrongful incarceration.
Defendants filed motions to strike the testimony of experts Errol Liverpool and Steven Farmilant while Plaintiff filed a motion to strike the opinions of Defendants’ retained expert, Dr. Sami Farhat.
Mental Health Expert Witness
Dr. Errol E. Liverpool has been a licensed professional counselor for many years. He got his Ph.D. in counselor education from an accredited university in 2001.
Dr. Steven R. Farmilant received his MA in counseling psychology in 1992 and his doctor of psychology in 1995, and has been a licensed clinical psychologist since 1997. He taught courses at the Adler School of Professional Psychology for 15 years, including courses in trauma and victimology.
Sami Farhat, Ph.D., is a clinical and forensic psychologist based in the Metro Detroit region of Michigan. Farhat obtained his Ph.D. from the University of Detroit Mercy.
He completed a postdoctoral fellowship in Forensic Psychology at the Arkansas State Hospital through the University of Arkansas for Medical Sciences (UAMS), where he was subsequently appointed as Assistant Professor of Psychiatry conducting court ordered evaluations and serving as an expert witness. He participated in training and education, including supervising doctoral interns and presenting at the state wide training for community evaluators. During his time with UAMS, he also maintained a part time private practice where he conducted criminal and disability evaluations.
Defendants argued that Liverpool is not qualified to diagnose PTSD or offer opinions concerning its cause because he is a licensed professional counselor rather than a psychologist, psychiatrist, or forensic clinician; has not published on PTSD or trauma; lacked forensic training; and testified that he was appearing as a treating clinician rather than an expert witness.
Defendants further challenged the reliability of Liverpool’s PTSD diagnosis because he made it during the first treatment session, did not conduct a structured diagnostic interview or symptom-validity testing, did not review collateral records, and was unfamiliar with certain provisions of the DSM-5-TR.
The Court found that Liverpool may testify as to Craighead’s PTSD diagnosis and treatment. His opinions regarding his time as Plaintiff’s treating clinician define the scope of his testimony; they do not disqualify him from offering opinions formed during treatment altogether.
Defendants’ attacks on Liverpool’s PTSD diagnosis go to weight, not Liverpool’s overall qualification to testify as an expert on Craighead’s treatment and PTSD diagnosis, and Defendants are free to challenge its veracity during cross-examination at trial. A treating provider may rely on interviews, reported history, observed symptoms, and the course of treatment in offering opinions.
The Court further held that it will not prohibit Plaintiff from eliciting Liverpool’s causation opinion attributing Craighead’s PTSD diagnosis to his wrongful incarceration.
Accordingly, Liverpool may testify that, in his clinical opinion formed during the course of treatment, Plaintiff’s arrest and incarceration caused or contributed to the PTSD and related symptoms he treated. His testimony must remain confined to opinions formed during treatment and based on the clinical history, observations, training, and experience he relied upon in treating Plaintiff; he may not offer causation opinions developed at counsel’s request or from sources extraneous to that treatment.
B. Sami Farhat
Plaintiff argued that Farhat relied on incomplete data, offered only a “null” opinion, focused on functional impairment Plaintiff does not claim, and prepared an untimely surrebuttal.
The Court found that Farhat may offer opinions as to his timely rebuttal report, subject to certain limitations, and that he may not testify as to any opinions offered in his notes critiquing Farmilant’s report.
With respect to Farhat’s rebuttal report, his interview and record review provide a reasonable basis for an evaluation-specific opinion. Rule 702 does not require an expert to review every available record or contact every collateral witness before offering an opinion. The omitted treatment records and family interviews are proper subjects for cross-examination.
The Court held that Farhat may describe his examination, the materials he considered, his clinical observations, and his conclusion that the information available to him did not substantiate clinically significant functional impairment or a diagnosable psychological condition. He may not offer the broader opinion that Plaintiff experienced no functional impairment throughout the relevant period or equate the absence of clinically significant impairment during his evaluation with the absence of emotional injury or compensable damages.
Plaintiff also sought to exclude a surrebuttal critique prepared by Farhat after reviewing Farmilant’s report. Plaintiff argued that the critique was untimely, exceeded the scope of permissible rebuttal, and introduced new opinions after the expert-disclosure deadlines had passed.
The Court will not excuse an unauthorized and untimely expert disclosure based on a materially inaccurate account of the discovery record. Accordingly, Farhat may explain and defend the opinions contained in his timely report only. He may not offer any additional opinions first expressed in his notes critiquing Farmilant’s rebuttal.
C. Steven Farmilant
Defendants challenged Farmilant’s qualifications, SIMS and PAI analysis, CPTSD diagnosis, and causation opinion.
The Court found that Farmilant is qualified. He has been a licensed clinical psychologist since 1997, taught trauma and victimology, and provides clinical and forensic trauma services. The absence of board certification, memberships, or publications on the precise subjects affects weight, not qualification.
The testing disputes also go to weight. Farmilant explained how he integrated recognized instruments with records, interviews, observed behavior, and other indicators, including why the SIMS did not establish malingering and why the PAI coefficient did not support schizophrenia. Defendants may challenge the SIMS-score discrepancy, the supporting literature, the PAI interpretation, and the absence of CAPS-5 or PCL-5 testing; but Rule 702 does not require perfect methodology for expert testimony to be admissible.
Farmilant may testify to CPTSD. Its absence from the DSM-5 is not dispositive because it appears in the ICD-11 and Farmilant explained the criteria applied. Plaintiff does not intend to elicit PICS testimony. If it arises, Farmilant may describe Post Incarceration Syndrome (PICS) as a literature-based concept or PTSD subtype, but not as an official DSM-5 or ICD-11 diagnosis. Farmilant’s causation opinion is also admissible. He considered treatment and correctional records, collateral information concerning pre- and post-incarceration functioning, testing, and alternative stressors. Differential etiology requires consideration, not elimination, of every conceivable contributing cause.
The weight assigned to particular alternatives is for cross-examination.
Held
The Court granted in part and denied in part the Defendants’ motion to strike the testimony of Dr. Errol Liverpool. Liverpool may testify regarding PTSD diagnosis and treatment, longitudinal observations, Plaintiff’s disclosures and symptoms, causation, and treatment-related trauma concepts. He may not testify concerning adjustment disorder, Farhat’s forensic methodology, or false-confession science.
The Court granted in part and denied in part the Plaintiff’s motion to bar Dr. Sami Farhat. Farhat may testify to his timely report subject to the stated limitations but may not offer opinions first expressed in the rebuttal critique.
The Court granted in part and denied in part the Defendants’ motion to strike the testimony of Dr. Steven Farmilant. Farmilant may testify regarding his diagnoses, validity testing and malingering analysis, and causation. Any PICS testimony is limited as stated above.
Key Takeaway
An expert’s factual foundation must be sufficient for the particular opinion offered, and the Court may prevent an expert from extending a limited dataset beyond what it can reliably support.
Please refer to the blog previously published about this case:
This case arises out of the tragic murder of four University of Idaho students in November 2022. Plaintiff Rebecca Scofield is a professor at the University of Idaho. She alleged that, despite never meeting any of these students or being involved with their murders in any way, Defendant Ashley Guillard posted numerous TikTok (and later YouTube) videos falsely claiming that Plaintiff (i) had an extramarital, same-sex, romantic affair with one of the victims; and then (ii) ordered the four murders to prevent the affair from coming to light.
Plaintiff sent cease-and-desist letters to Defendant in the following days and weeks. When Defendant did not stop, Plaintiff initiated this action. Plaintiff asserts two defamation claims against Defendant: one is premised upon the false statements regarding Plaintiff’s involvement with the murders themselves, the other is premised upon the false statement regarding Plaintiff’s romantic relationship with one of the murdered students.
Plaintiff has identified two experts who may testify at trial: Dr. Rebecca Tallent and Rebecca Bohn. In advance of trial, Defendant filed a motion to exclude these experts’ testimony pursuant to Federal Rule of Evidence 702.
Public Relations Expert Witness
Rebecca J. Tallent is a retired associate professor emerita with more than five decades of experience in journalism, public relations, and academia. She holds a bachelor’s degree in journalism, a master’s degree in education with a journalism emphasis, and a doctorate in education focused on higher education, classroom teaching, and mass communications.
During her career, Tallent taught public relations and journalism at the University of Idaho and other institutions, published scholarly and professional works on media and ethics, and worked professionally in journalism and public relations.
Rebecca Bohn is a licensed mental health counselor with a Master of Arts degree in counseling psychology and more than three decades of experience providing psychotherapy and behavioral health treatment.
Tallent offered opinions concerning how defamatory statements made via social medial can affect an individual’s professional reputation in an academic setting. She specifically opined that Defendant’s statements have damaged Plaintiff’s reputation to a significant degree and that it could take decades, or even a generation, for Plaintiff to restore her reputation, if ever.
Defendant argued that Tallent is not qualified to offer these opinions and that her testimony is unreliable because it is speculative, exaggerated, and unsupported by facts or data tied to Plaintiff’s actual circumstances.
The Court held that Tallent’s education, training, and extensive professional experience in journalism, public relations, and academia qualify her to testify as an expert regarding general principles of reputation, branding, and the ways in which negative publicity — particularly online — can impact professionals in academic environments.
Tallent’s testimony is also relevant. Testimony explaining how reputational harm can occur, how internet-based dissemination differs from traditional media, and how academics may be uniquely vulnerable to reputational injury may assist the trier of fact in understanding issues beyond the knowledge of a lay juror.
However, much of Tallent’s report is framed in conditional or probabilistic terms, such as statements that Defendant’s conduct “ha[s] the capacity” to affect Plaintiff’s reputation or “may cause” harm. Such phrasing underscores the speculative nature of her conclusions and highlights the absence of a reliable basis for opining that reputational harm has in fact occurred, or will occur, to any particular degree. Given the significant weight juries may place on expert testimony, Rule 702 requires more than unsupported statements grounded solely in the expert’s authority. Without a reliable foundation demonstrating how Tallent reached her conclusions about the existence, severity, or duration of Plaintiff’s reputational harm, those opinions risk misleading the jury.
Rebecca Bohn
Bohn began treating Plaintiff in May 2023 and has met with her regularly since that time. Based on her training, clinical experience, and longitudinal treatment of Plaintiff, Bohn diagnosed Plaintiff with post-traumatic stress disorder (“PTSD”) and opined that Plaintiff will require ongoing mental health treatment into the future.
Based on her training, clinical experience, and longitudinal treatment of Plaintiff, Bohn diagnosed Plaintiff with post-traumatic stress disorder (“PTSD”) and opined that Plaintiff will require ongoing mental health treatment into the future.
Defendant argued that Bohn is not qualified to diagnose PTSD, that her opinions are unreliable because they allegedly depart from the DSM-5 diagnostic criteria, and that defamation cannot, as a matter of law or medicine, constitute a qualifying traumatic event.
The Court disagreed and concluded that Bohn is qualified to testify and that Defendant’s challenges go to the weight of her testimony, not its admissibility. Moreover, testimony regarding Plaintiff’s mental health diagnosis, symptoms, treatment history, and prognosis may assist the jury in understanding the nature and scope of the claimed injury and in determining damages, if any. Accordingly, Bohn’s testimony satisfies Rule 702’s relevance requirement.
The Court additionally found Bohn’s testimony sufficiently reliable. As a psychotherapist, licensed mental health counselor, and behavior health educator, she is uniquely qualified to diagnose patients with mental impairments, including PTSD. Defendant’s unsupported argument that defamation cannot constitute a traumatic triggering event sufficient to support a PTSD diagnosis is ultimately a dispute over diagnostic criteria and causation.
Held
The Court granted in part and denied in part the Defendant’s motion to exclude the expert testimony and evidence of Rebecca Bohn and Rebecca Tallent.
Key Takeaway
Unlike an expert retained solely for litigation, Bohn’s opinions are premised upon a course of treatment, repeated clinical evaluations, and an ongoing relationship with Plaintiff. Courts recognize that such medical care provides a reliable basis for diagnostic opinions.
Whether Plaintiff’s experience satisfies the clinical requirements for PTSD are matters on which mental health professions may (or may not) disagree. Such disagreements are appropriately explored through cross-examination and, if Defendant chooses, competing expert testimony. They do not, however, render Bohn’s opinions unreliable for purposes of Rule 702. This is because courts routinely allow expert testimony linking psychological conditions to tortious conduct, including defamation.
The claims against La-Norma Ramirez and Washington County stem from Plaintiff Danyale Blackmore’s booking and release at the Washington County Jail.
Blackmore alleged that her constitutional rights were violated when she was allegedly strip-searched at the Jail.
Elisabeth York was disclosed to address Danyale’s mental health symptoms and her diagnosis of posttraumatic stress disorder (PTSD).
Defendant challenged York’s qualifications as an expert and the reliability of her methods and opinions. Defendant also argued that York’s anticipated testimony was unfairly prejudicial.
Mental Health Expert Witness
Elisabeth York is a licensed clinical mental health counselor (“LCMHC”) with a robust background in mental health and trauma counseling. She holds a Master’s of Science in Clinical and Mental Health Counseling from the Grand Canyon University.
Defendant argued that York was not qualified to offer expert testimony because she was an associate LCMHC, which required a supervising provider to consult on and approve her diagnoses.
However, the record plainly demonstrates that a supervising provider signed off on each of York’s therapeutic sessions with Plaintiff.
York is now an LCMHC, and Defendant did not challenge her current qualifications as an expert. Therefore, there is nothing in the record to suggest that York lacked the requisite specialized knowledge, skill, experience, training, or education.
York’s anticipated testimony is reliable
York demonstrated that she obtained sufficient information from Plaintiff to make her diagnoses. The Court held that the timing of such diagnoses, whether more information would have been helpful to the diagnoses, and York changing the diagnoses are subjects for cross-examination. York could also rely on information relayed to her by Plaintiff in making her diagnoses, just as any medical or mental health provider relies on information given to them by their patients. While some of these facts are vigorously disputed by the parties, Defendant pointed to no evidence or legal authority requiring exclusion of a treatment provider’s testimony because the provider’s diagnosis relied on information offered by their patient. Moreover, York’s reliance on information Plaintiff provided did not render York’s testimony and opinions unreliable.
Also, York’s deposition testimony demonstrated that she applied the specific criteria required for Plaintiff’s PTSD diagnosis. Defendant’s expert may disagree with that diagnosis. But that disagreement did not render York’s conclusion unreliable.
York’s anticipated testimony is relevant and admissible
York did not have personal knowledge of whether Plaintiff was strip searched. The Court held that York will not be permitted to testify that Plaintiff was strip searched or that the strip search caused Plaintiff to have PTSD or other mental health diagnoses. But this did not mean that York’s anticipated testimony and opinions were not relevant to the trial issues.
While York is not permitted to vouch for Plaintiff, she can testify to her observations of Plaintiff during their therapy sessions. York can also testify regarding her communications with Plaintiff during their therapy sessions. Such testimony is generally not hearsay. And, provided adequate foundation and the testimony being otherwise admissible under the Federal Rules of Evidence, York may testify that the circumstances, as described to her by Plaintiff during their therapy sessions, are sufficient to meet the criteria for certain mental health diagnoses and lead to York’s diagnoses of Plaintiff. The Court held that this anticipated testimony and opinions are highly relevant to damages issues.
Defendant raised concern that York’s testimony and opinions may cause unfair prejudice by causing the jury to give greater weight to Plaintiff’s credibility, and created a danger of misleading or confusing the jury regarding issues of causation.
But these concerns are nearly always risks when a non-retained treatment provider offers expert testimony regarding a diagnosis. And they are limited and avoided through vigorous cross-examination, the presentation of contrary evidence, carefully crafted jury instructions, and appropriately targeted closing arguments.
Held
The Court denied the Defendant’s motion to exclude or limit at trial the testimony of Plaintiff’s expert, Elisabeth York.
Key Takeaway:
York is qualified to offer expert testimony. Her methods and opinions are sufficiently reliable, and her anticipated testimony is relevant and its probative value is not substantially outweighed by a risk of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
However, as necessary or appropriate based on what evidence and how such evidence is admitted at trial, specific objection may be raised at trial to specific questions posed to York.
Kyle and Annaleah Justice raised claims of negligence and strict liability against Defendants Bestway (USA), Inc. and Rural King under the Missouri Wrongful Death Statute. Plaintiffs’ claims arose from the drowning death of their minor daughter, E.M.J., in an above-ground pool on August 3, 2019.
Plaintiffs designated Dianna Sullivan as an expert regard the impact of the death on Plaintiffs’ mental health; Peggy Shibata as an expert regarding the pool’s safety and design; and Dr. John Fletemeyer as an expert in aquatics.
Bestway (USA), Inc. filed motions to exclude the opinions of Sullivan, Shibata and Fletemeyer.
Mental Health Expert Witness
Dianna Sullivan graduated from Nova Southeastern University with a Master’s degree in Psychology. She has been in public and private practice for 35 years. Her areas of specialty are family, marital, anxiety, depression, adjustment disorders, grief, bereavement, and chemical dependency.
Peggy Shibata holds a bachelor’s degree in mechanical engineering as well as master’s degrees in both mechanical and biomedical engineering. Shibata specializes in mechanical engineering and biomechanics, with particular expertise in accident reconstruction, rigid body dynamics, computational modeling and analysis, human injury tolerance, and injury analyses associated with transportation, recreational activities and equipment, and falls.
John Fletemeyer has a bachelor’s degree in anthropology and physical education from Ball State University. He holds post-graduate degrees from the University of Wisconsin and the University of Cape Town in South Africa. He has a doctoral degree from Florida International University with an emphasis on coastal science and education. Fletemeyer has “been continuously involved in aquatics for the past 50 years and [has] several professional certifications” related to lifeguarding, first aid, and water rescue. He is currently the executive director of the Aquatic Law Institute and the Aquatic Law Symposium Program.
Sullivan, a Licensed Mental Health Counselor (“LMHC”), conducted phone interviews with Plaintiffs Kyle and Annaleah Justice “to evaluate the psychological process and circumstances that will help [her] understand the duration[,] severity and of [sic] symptoms (if any), to arrive at a diagnosis (if any), and to provide an expert opinion about the grief and bereavement process experienced by the family of the deceased . . . .”
According to Sullivan, both Kyle and Annaleah Justice suffered from Post traumatic stress syndrome (“PTSD”), Major depressive disorder (“MDD”) and complicated grief and bereavement syndrome as a result of the sudden and tragic death of their daughter. Annaleah Justice was also diagnosed with an anxiety disorder.
Bestway USA challenged the admissibility of Sullivan’s opinions because she did not perform any formal diagnostic tests on Plaintiffs before arriving at her conclusions.
Bestway USA asserted that Sullivan’s testimony is about Plaintiffs’ grief and bereavement, a form of damages that is specifically precluded under Missouri’s wrongful death statute. To sum it up, Sullivan’s opinions are not the result of reliable principles or methods and would not be helpful to the jury.
Analysis
The Court found that Sullivan “followed the same procedures that [she] use[s] in [her] practice when conducting an intake” and she specifically followed the “Shea (1998) protocol.” Sullivan did not rely on the Plaintiffs’ previous mental health records because, as she explained, there were none. The report she has produced applies her analysis of Plaintiffs’ symptoms to the diagnostic criteria provided by the DSM-5, a procedure that further supports the finding that she used a reliable methodology to form her opinions in this case. Moreover, Sullivan’s testimony is relevant and admissible for the jury to assess “the reasonable value of the services, consortium, companionship, [and] comfort” that resulted from Plaintiffs’ loss of their daughter.
Bestway USA argued that Sullivan’s opinions did not address the loss of companionship, comfort, counsel, and support and instead focus explicitly on grief and bereavement. The Court will not take such a limited view of the overall value of Sullivan’s opinions in assisting the jury. However, Sullivan will be required to express her opinions within the context of the damages permitted by the statute and may not expressly testify regarding grief or bereavement.
The Shibata Motion
Shibata planned to testify to the following:
Opinions 1-6
1. According to the recorded statements, police investigation, and medical findings, 31-month-old [E.M.J.] was found face down in the subject Bestway above ground pool after apparently using the nylon strap and side of the pool to climb into the water.
2. The nylon strap and climbability of the subject pool wall resulted in [E.M.J.] gaining access to the pool water.
3. Access to filled pools by small children leading to drowning is a well-known hazard in the pool industry as evidenced by standards and guidelines related to pool barriers and publications authored by the safety community related to preventing child drownings.
4. The circumferential horizontal strap on the subject pool creates a foothold, reducing the vertical distance to the top of the pool, and making the pool wall noncompliant withthe requirements for a conforming barrier.
5. The subject pool design is defective and unreasonably dangerous due to the climbability of the pool wall.
6. The instructions provided in the subject pool’s owner’s manual do not clearly inform the user that the pool wall is not a conforming barrier and that a separate conforming barrier other than the pool wall must be provided by the user.
Opinions 10-15
10. Bestway (USA) failed to perform any hazard identification for the subject pool design, prior to, or after, the sale of the subject pool.
11. Bestway (USA) failed to perform any risk assessment for the subject pool design, prior to, or after, the sale of the subject pool.
12. Bestway (USA) failed to perform any testing to identify potential design defects related to the climbability of the subject pool wall prior to, or after, the sale of the subject pool.
13. In the subject pool owner’s manual, Bestway (USA) failed to properly and explicitly instruct the Justice family and other users that since the nylon strap can be used as a foothold, an additional barrier to the subject pool is required.
14. Bestway (USA), through the language provided in the owner’s manual, gave the Justice family a false sense of security and implied to them that they did not need to construct an additional barrier surrounding the subject pool because the pool wall itself could be a barrier.
15. Bestway (USA) knew, or should have known, that the pool wall was not a proper barrier because of the nylon strap foothold.
Analysis
Bestway offered several arguments why Shibata’s opinions should be excluded, including that they are “not based on sufficient facts or data, . . . do not have a reliable basis in accepted principles and methods, nor has she applied those principals to the specific facts of this case, . . . and would not serve to help the jury reach a decision in this matter.”
As an initial matter, because the Court has granted summary judgment for Bestway USA as to Plaintiffs’ negligence claims, some of Shibata’s opinions are no longer relevant.
In particular, opinions relating to Bestway USA’s duty and breach are no longer at issue. Shibata’s Opinions 3, 10, 11, 12, and 15 relate directly to the issue of Bestway USA’s alleged duty or knowledge of the pool’s potential dangers. Because Plaintiffs will no longer need to establish these elements of negligence, these opinions will no longer be helpful to the jury and could mislead the jury as to Bestway USA’s duties.
Opinion 1
The Court held that Opinion 1 is inadmissible because it is a simple statement of fact that does not require expert testimony.
Testimony from witnesses at the scene and the conclusions in the Warren County Sheriff’s Report can establish the facts included in Shibata’s Opinion 1 without her testimony. While Shibata may testify regarding her reliance on those statements and perhaps the conclusions in the Report in forming her conclusions, she cannot testify to them in the form of opinion.
Opinion 2
Plaintiffs have failed to establish by the preponderance of the evidence that Shibata’s Opinion 2—that the nylon strap and the climbability of the pool wall resulted in E.M.J. gaining access to the pool—is based on sufficient facts and data and is the result of a reliable application of a methodology. Shibata is an expert in engineering, biomechanics, product safety, and accident reconstruction, among other topics related to human factors. To form this opinion, Shibata appeared to have relied on the testimony of other witnesses, the police and incident reports following E.M.J.’s death, E.M.J.’s medical records, and reports from saferproducts.gov indicating other instances of toddlers climbing into or attempting to climb into other similarly designed pools.
She did not testify that these are the types of facts and data she would generally rely upon to form opinions about biomechanics, engineering, product safety, accident reconstruction, or human factors analysis. While she stated that she “employed the scientific method as a framework,” Plaintiffs have not come forward with any other evidence of how Shibata applied the scientific method to the issues of this case.
Shibita evaluated E.M.J.’s climbing abilities using only her intuitive understanding of children’s general climbing abilities, and she has been unable to identify a scientific methodology she used to arrive at her conclusion.
Opinion 5
The Court held that Opinion 5 is admissible because Shibata has an expertise in engineering and is offering her engineering opinion regarding the safety of the pool’s design. She is also an expert in product safety generally and can testify using this experience that this pool’s design, specifically as it relates to the nylon support strap, is unreasonably dangerous. Shibata reviewed relevant safety standards regarding above-ground pools and has concluded that the nylon support strap makes the pool’s wall climbable and therefore ineffective as the sole barrier preventing young children from entering the pool.
Opinions 4, 6 and 13
The Court held that Opinion 4 pertains to whether the nylon strap constitutes a foothold and therefore makes the pool wall a non-conforming barrier. Opinions 6 and 13 are substantially the same in that they both state that the pool’s owner’s manual failed to inform consumers that the pool wall included a foothold via the nylon support strap, thus making it a non-conforming barrier and requiring the consumer to construct an additional barrier around the pool to make it safe.
Plaintiffs have met their burden to establish that that Opinions 4, 6, and 13 are admissible. According to the Court, Shibata has extensive experience in the field of product safety analysis. As stated above, in assessing whether the pool’s wall was a conforming barrier or whether the nylon support strap created a foothold, Shibata read several sets of pool safety standards and determined that the measurements of the pool and pictures of the nylon support strap indicate that the nylon support strap was a foothold and therefore the pool’s wall was not a conforming barrier.
Opinion 14
The Court held that Opinion 14 about the pool’s warnings that gave Plaintiff’s a “false sense of security and implied to them that they did not need to construct an additional barrier” will be excluded because it is directly contradicted by other testimony.
Shibata, during her deposition, was confronted with Justice’s deposition testimony where he testified that he and Flake had discussed putting an additional fence around the pool. She admits that she had previously reviewed this testimony and that Justice, in this testimony, described a desire to put an additional barrier around the pool. Shibata did not explain how she could have reliably arrived at her conclusion that Justice had a “false sense of security . . . they that did not need to construct an additional barrier” when he testified to his intention to construct such a barrier. Additionally, there is no evidence in the record that Justice or the Flakes read the pool’s warnings.
The Fletemeyer Motion
Fletemeyer offered the following opinions:
Opinions 1-6
[1.] The fatal drowning of [E.M.J.] was preventable.
[2.] The proximate cause of this fatal drowning was the nylon support strap surrounding the pool’s perimeter. Being only 14.5 inches from the ground, it conveniently provided [E.M.J.] with a foot hold allowing her to climb over the pool’s edge and into the water[.]
[3.] If not for the nylon strap, a toddler of [E.M.J.]’s size and age wouldn’t have been able to gain access into the pool and drown.
Considering that Kyle Justice, the father of the victim, had earlier removed the ladder from the pool, this was the only possible way the victim entered the pool.
[4.] Detective Jeff Doerr observed a child’s footprint near the nylon strap. He concluded that the footprint likely belonged to [E.M.J.] and that the nylon strap was how she managed to get into the pool.
[5.] Without the ladder and without the nylon strap. It would not have been possible for [E.M.J.] to climb over the edge of the pool and drown.
Consequently, any allegation by the defense that the victim entered the pool differently is not supported by the facts.
[6.] The nylon support strap circling the pool represents a serious design flaw responsible for making the pool inherently dangerous especially to young children the victim’s age.
Opinions 7-9
[7.] The fact that there has been similar fatal drownings and near drownings prior to this one where children used the nylon strap as a foot support, this indicates a wanton and conscious disregard for the safety of this product by its manufacturer.
[8.] There are none of the contributing events mentioned earlier in this report that would indicate that this was a passive drowning event. As such, my opinion is that this was an active drowning and consequently, [E.M.J.] experience [sic] horrific pain and suffering before becoming unconscious, progressing from clinical death to biological death.
[9.] Kyle Justice, the father, states in his deposition . . . that earlier he had removed the ladder from the pool. Consequently, he reasonably believed that the pool was safe.
Analysis
Bestway USA argued that Fletemeyer’s opinions should be excluded because they are not based on sufficient facts or data, are not the result of a reliable application of a methodology to the facts, and would not help the jury. Bestway USA stated that Fletemeyer failed to personally conduct an investigation into the scene of the drowning, and therefore does not base his opinions on sufficient facts or data.
Opinion 7
The Court held that Fletemeyer’s Opinion 7, that the pool’s manufacturer acted with wanton and conscious disregard for the safety of the pool, will be excluded because it is no longer relevant to the issues in this case. As stated above, the Court has already granted summary judgment in favor on Bestway USA on the issue of Bestway USA’s alleged negligence and as to punitive damages. Because this opinion relates specifically to the issue of Bestway USA’s knowledge of the pool’s danger—and thus to punitive damages—it will be excluded.
Opinion 1
The Court held that Opinion 1 will be excluded because it is simply not helpful to the jury. While it is likely true that this tragic drowning was preventable, nothing about this opinion will help the jury to decide an issue in this case.
Opinions 2 and 6
The Court held that Fletemeyer’s Opinions 2 and 6 will be excluded. In Opinion 2, Fletemeyer intended to testify that the pool’s nylon support strap was the “proximate cause” of E.M.J.’s death. Similarly, in Opinion 6, Fletemeyer intended to testify that the inclusion of the nylon support strap in the pool’s design renders the design defective. Fletemeyer is an expert in drowning, not pool design or human factors. He has no expertise that permits him to form opinions regarding the design of the pool or the ability of E.M.J. to enter the pool via the nylon support strap.
Additionally, Opinion 6 can also be excluded because it is unnecessarily cumulative. Shibata, an engineering and product safety expert, intended to testify regarding the pool’s design and the nylon support strap and its potential as a foothold. Having Fletemeyer provide essentially the same testimony would be unnecessarily cumulative, especially given that he lacks the necessary expertise to render such an opinion.
Opinions 3 and 5
The Court held that Opinions 3 and 5 are essentially the same opinions and will both be excluded because they are outside of the realm of Fletemeyer’s expertise. In them, Fletemeyer has concluded that the pool’s nylon support strap acted as a foothold by which E.M.J. was able to access the pool, and that this was the only way E.M.J. could have accessed the pool while the ladder was removed.
As already stated, Fletemeyer does not have any special training or experience related to accident reconstruction or human factors that would permit him to arrive at this conclusion. It appears that Fletemeyer arrived at these conclusions by simple inference based on the Warren County Sheriff’s Report and Justice’s deposition testimony. Such testimony will not be helpful to the jury because the jury could also make the same inference when confronted with the Report and Justice’s testimony.
Opinion 4
The Court held that opinion 4 will be excluded because it is not an opinion but is instead a statement of facts that can be established by other means. Again, what is contained the Warren County Sheriff’s Report and the opinion of Detective Doerr is not a matter for opinion testimony.
Opinion 9
The Court held that Opinion 9 will be excluded for two separate reasons. First, like Opinion 4, the first sentence of Opinion 9 regarding what Justice testified to will be excluded because it is simply a statement of fact that requires no expert opinion. Second, whether Justice believed the pool was safe after removing the pool’s ladder is not relevant to the remaining issue in this case. Only two of Plaintiffs’ claims remain against Bestway USA: strict liability design defect and strict liability failure to warn. Justice’s subjective belief regarding the pool’s safety after he removed the ladder is not relevant to either of these claims and will not help the jury to decide any remaining issues. The Court excluded Fletemeyer from testifying to his Opinion 9.
Opinion 8
Plaintiffs have established by the preponderance of the evidence the relevance and reliability of Fletemeyer’s Opinion 8, so the Court denied Bestway USA’s Motion as to this opinion. Fletemeyer is qualified through his extensive experience to testify regarding drowning events and the physiological process of drowning. Fletemeyer arrived at his conclusion through analysis of the drowning event and by consulting his previous, extensive study of the drowning process, a field in which he has published extensively.
Held
The Court denied the Defendant Bestway USA’s motion to exclude the opinions of Dianna Sullivan.
The Court granted in part and denied in part the Defendant Bestway USA’s motion to exclude the opinions of Peggy Shibata.
The Court granted in part and denied in part the Defendant Bestway USA’s motion to exclude the opinions of John Fletemeyer, PhD.
Key Takeaway:
Despite her extensive experience in the field of product safety analysis, Shibata’s opinions about the pool’s warnings was excluded because it was directly contradicted by other testimony. Moreover, Fletemeyer intended to testify that the inclusion of the nylon support strap in the pool’s design renders the design defective. The Court held that Fletemeyer is an expert in drowning, not pool design or human factors. Having Fletemeyer provide essentially the same testimony as Shibata would be unnecessarily cumulative.
Please refer to the blogs previously published about this case:
